Succession of Ryan

PONDER, Justice.

Mrs. Lurl Pipes Carter Ryan died on March 30, 1953, leaving no ascendants nor descendants. Thereafter on September 17, 1953, her husband, A. J. Bob Ryan, opened her succession and presented an olographic will, dated September 29, 1951, for probate. He was appointed executor in pursuance to the provisions of the will. Ruth Johnson, a niece of the decedent, opposed the will on the ground that it was null and void because it contained a prohibited substitution and asked that a prior will, dated April 17, 1946, be recognized as the last will of the testatrix and ordered probated. She also asked to be confirmed and qualified as testamentary executrix. Ryan interposed an exception of no right or cause of action to the opposition. The exception was sustained on the ground that the posterior will tacitly revoked the prior will. Ruth Johnson has appealed.

We gather from the record that, prior to the marriage of the deceased to Ryan, she made an olographic will on April 17, 1946, in which she bequeathed to her niece, Ruth Johnson, all of the property she died possessed of and wherein she designated Ruth Johnson as the executrix of her estate. Thereafter she married Ryan and on September 29, 1951, she executed an olographic will, which reads as follows:

“Ruston, Louisiana

September 29, 1951

“I, Lurl Pipes Ryan realizing thé uncer- ¡ tainty of life do hereby make this last will • and testament.

“I will and bequeath unto my husband, A. ‘ J. Bob Ryan, all the property that I die ’ possessed of.

“I appoint my husband, A. J. Bob Ryan, executor of this my last will with full seizen and without bond.

“And at the death of my husband A. J. Bob Ryan, if she be living, I will and bequeath unto my niece Ruth Johnson all of the property I died possessed of and left to my husband A. J. Bob Ryan.

“This will entirely written, dated and signed by my own hand, this 29th day of September, 1951.

“Lurl Pipes Ryan”

The question presented is whether or not, this posterior will operates as a tacit rev-. ocation of the prior will.

The posterior will unquestionably contains a prohibited substitution. Under the provisions of Article 1520 of the LSA-Civil Code, substitutions are prohibited. It is stated there that: “Every disposition by which the donee, the heir, or legatee is charged to preserve for or to return a thing to a third person is null, even with regard to the donee, the instituted heir or the legatee.” In interpreting this article of the Civil Code, it was stated in Succession of Heft, 163 La. 467, 112 So. 301, 302, that “A bequest of property to one legatee with the stipulation and on the condition that at his death and without any act of conveyance from him it shall belong to. another legatee named in the will is a prohibited substitution.” This pronouncement of law has been approved by this Court on many occasions and especially in the recent cases of Maddox v. Butchee, 203 La. 299, 14 So.2d 4, 7 and Succession of Rougon, 223 La. 103, 65 So.2d 104.

Applying the test laid down in these cases, the bequest of all of the property of the .testatrix to Ryan, with the provision that at his death it is bequeathed to Ruth Johnson, is a prohibited substitution and is therefore null and void.

It is contended that the posterior will operates as a tacit revocation of the prior will even if the posterior will is invalid for the reason that it contains dispositions incompatible and contrary to the provisions in-the prior will. In support of this contention, Article 1693 and Article 1694 of the LSA-Civil Code are cited.

Under the- provisions of Article 1691 of the LSA-Civil Code, a will may be expressly revoked by a formal declaration in writing or tacitly revoked by some other disposition of the testator or by an act supposing a change of will. Under this article of the Code, the revocation is general when all the dispositions are revoked and particularly when it falls on some of the dispositions only without touching the rest. A revoking will invalid in form does not render prior wills null. Succession of Feitel, 187 La. 596, 608, 175 So. 72, 80, and authorities cited therein. It is stated in Succession of Feitel, supra, that “The law on the subject, however, is that, if a will containing a clause revoking a previous will, or revoking all previous wills of the testator, is annulled, the revoking clause loses its effect, and the last preceding will stands unrevoked. Rev.Civ.Code, art. 1692; Hollingshead v. Sturgis, 21 La.Ann. 450; Succession of Hill, 47 La.Ann. 329, 16 So. 819.” This same rule would apply when an invalid disposition is relied on as a tacit revocation of a disposition in a prior will. If the annulment of a will containing a revoking clause renders the revoking clause ineffective, certainly a prohibited substitution cannot be given the effect of tacitly or impliedly revoking a disposition contained in a prior will.

For the reasons assigned, the judgment of the lower court is reversed and set aside, the exception of no cause or right of action is overruled and the case is remanded to be proceeded with according to law. The costs of this appeal to be paid by appellee, all other costs to await the final disposition of the cause.

HAMITER, J., dissents.