The opinion
On Rehearing.
MONROE, C. J.
A rehearing was granted in this case upon the opposition and in the terms following, to wit:
“The opposition of Mrs. Pizzati, in so far as it is based on the provisions of the wills and her rights, .if any, as heir of the deceased; the opposition of Marco Pizzati, in so far as it is based on the provisions of the wills, and the compromise agreement of the parties, filed in evidence; and also the opposition of Dr. Rudolph.”
No rehearing was granted upon the question of the validity of the alleged adoption of Marco Pizzati, and the judgment as handed down is final upon that question.
Upon a re-examination of the oppositions filed by Mrs. Pizzati and Marco Pizzati, we find that neither of them claimed anything under the provisions of the wills, those claims having been set up, for the first time, by Mrs. Pizzati in her application for rehearing, and by Marco Pizzati in the brief filed in support of his application for rehearing. But, if it were otherwise, the result would be the same. Mrs. Pizzati rests her claim upon the theory that the testator, having, by his latest will, bequeathed only the disposable portion of his estate to Woodville, died intestate as to that portion which would have constituted the légítime of Marco Pizzati if he had been legally- adopted, and that, in default of such legal adoption, it devolves upon her as the heir at law. Marco Pizzati’s contention is that the legacies in his favor (of the entire estate and one-half of the estate respectively) under the wills of January 14, 1910, and June 12, 1911, were not revoked, but were merely ) reduced, by the bequest of the disposable por *681 tion to Woodville under the wills of October, 1911, and December, 1915.
[23, 24] There was, however, no intestacy, for the disposable portion of the estate was determined by the disposing capacity of the testator at the time of his death, and, as he then had no forced heirs, he was capable of disposing of all that he possessed, and did so, his disposition of the disposable portion constituting a universal legacy which included his entire estate.
“Thus,” say the French authorities, with practical unanimity, “a legacy of ‘that of which I am permitted to dispose,’ or a legacy of ‘the disposable portion,’ constitutes a universal legacy, giving right to the whole of the property, if at the time of death there are no forced heirs, or if the forced heirs renounce or are excluded.” Fuzier-Herman, vol. 2, p. 754, No. 8; C. N. 1003 (citing many authorities); Baudry-Lacontinerie, Des 'Donations et Des Testaments, vol. 2, p. 196, No. 2296; Demolombe, Traite des Donations, vol. 4, p. 472, n. 540; Coin-Delisle, art. 1003, n. 9; Duranton, vol. 9, p. 192 (3d Ed.); C. V., B. III, tit. II, Nos. 181, 182; Laurent, vol. 13, pp. 569, 572, citing a case (page 572) in which it was held that the legacy of the disposable portion of the estate of the testator was a universal legacy, and in which reference is made to a case decided by the -Boyal Court of Colmar in 1830 and affirmed by the Court of Cassation May 25, 1831, in which it was held that, an adoption having been annulled, no cognizance could be taken of it.
In Succession of Robert, 2 Rob. 427 , this court had under consideration the will of a minor who actually resided in France, where the will was made and where, under the law, she had a forced heir, but whose legal domicile was in Louisiana, where her estate, consisting exclusively of movable property, was situated, and where she had no forced heir. The disposition in controversy reads, “Je donne et légue ü M. Gustave Allier, qui je dois épouser, tout ce dont la loi me permit disposer;” and it was held that it was to be construed in accordance with the law of Louisiana, and, so construed, meant that the testatrix intended to- give all that she was capable of giving, and “that her disposition must prevail as a legacy of her entire movable estate.”
The theory that the legacies in the earlier wills in favor of Marco Pizzati were not revoked, but were merely reduced, by those in the later wills in favor of Woodville, are equally and obviously untenable, since it is-clear that, as the later legacy to Woodville, included the entire estate, there could be nothing left of the prior legacies bequeathing the entire estate or the half of it to another legatee.
[25] The remaining question is as to the agreement between Mrs. Pizzati, Marco Pizzati, and Robert Woodville represented by J. L. Warren Woodville, to the effect that the will of 1915 should be registered and executed as though the clause requiring Marco Pizzati to collate $20,000 had not been written, that (the will notwithstanding to the contrary) Marco Pizzati should receive one-quarter and Robert Woodville one-quarter of the net value of the estate, and that Mrs. Pizzati should receive her interest as widow in community. It is said in the original opinion, “and the agreement * * * is equally null, for it was entered into in the belief that there had been an adoption [of Marco Pizza-ti by Salvatore Pizzati], when, in point of fact, there had be.en none.” Up to and until after the time that the opinion was handed down, the idea that Marco Pizzati had participated in the agreement in any other character than as the adopted son of Salvatore Pizzati seems never to have suggested itself to any one, and we are unable now to follow the learned counsel in their effort to show that he had some other status which gave him a standing upon which to predicate his participation in such an agreement.
*683 For, though the agreement does not specifically mention the character in which he appeared, it contains intrinsic evidence upon that subject in the stipulation which accorded him a proportion of the estate equal to the légitime of a legally adopted son, no more and no less, which evidence, tending to show that he appeared in that character, is strongly corroborated by all that followed up to the time that it was held by this court that he was not legally adopted. Thus the agreement was entered into on January 3, 1916, as a preliminary to the opening of the succession, when there was no pending litigation, or, so far as appears, talk or threat of litigation, and in the original brief filed in this court by counsel for Marco Pizzati they say:
“Before opening his succession and before filing the will for probate, the widow, the adopted son and the legatee of the disposable portion, entered into a written agreement in the following words.”
Then follows a copy of the agreement, the italics in the above being black-lettered in the brief.
On the day of its making, therefore, the parties to the agreement, describing themselves, respectively, as the widow, “adopted son,” and “universal legatee” of the decedent, filed their petition in the district court praying that the will of December, 1915, be registered and executed. Thereafter, upon the filing by the executor of his account, “Marco Pizzati, adopted son of the late Salvatore Pizzati,” again appeared by way of opposition thereto, setting up the agreement in question and praying, not that he be decreed owner of the entire estate according to the will of January, 1910, or of half of the estate, according to the will of June, 1911, but of one-fourth of the estate, apparently both in the capacity in which he sued and by virtue of the agreement upon which he sued. On the trial of the opposition, being called on to elect whether he claimed as an adopted son or under the agreement, his counsel (under protest) stated:
“We now declare that we stand on our rights as an adopted son, * * * and, in so far as the widow and the universal legatee are concerned, we stand upon the instrument herein declared upon in our opposition.”
Which instrument, as we have seen, had been declared upon in the capacity of adopted son.
The judgment of the district court sustained the adoption, held that the opponent was under no obligation to collate the $20,-000, and recognized him as the legally adopted child, “entitled to all the rights of a forced heir in the estate of the deceased, and entitled, under the agreement of January 3, 1916, to receive one-fourth of the net estate of the deceased.”
In this court, on the appeal, Marco Pizzati, through his learned and able counsel, asserted his right in an original brief which bears the legend, “Original Brief in Behalf of Marco Antonio Pizzati, Adopted Son, Appellant,” and which insists upon it throughout, that, for all the purposes of the case, Marco Antonio Pizzati was, and is, the adopted son of the decedent. Thus we find in support of the objection that Robert Woodville had no right to raise the questions argued at the bar, including the question of the validity of the adoption, the following passages:
“Second. The written agreement, made after the estate had vested by the death, absolutely precludes him from setting up the question he has here raised. That agreement subsists for the purposes of the case in its entirety. * * * Indeed, its validity is not disputed by his counsel, should the question of status be decided against him. This agreement was a ratification of the will and an adjustment of all differences which might be raised, or could have been raised, against the rights of either party to the same. It is more than tins; it is a recognition of the status of Marco Antonio Pizzati, and an establishment by consent of his interest in the estate, and of the interest of Robert Woodville the legatee.” (Italics by the court.)
And the following page of the brief is devoted to an argument which inferentially admits that the agreement was entered into by Pizzati in the capacity of adopted son, but *685 denies the right of the other litigants to attack it on that account. Whatever, therefore, may be the present view of the learned counsel, and however ably that view may be supported in argument, we are satisfied that, when the agreement in question was entered into, it was with the understanding on the part of their client that he was acting in the capacity of adopted son, as well as in any other capacity that he might have possessed, and that, if it had not been so understood by the other parties thereto, there would have been no agreement. In addition to that, it now appears that J. L. Warren Woodville, who acted in the matter as representing Robert Woodville, was without authority in the premises, his mandate having been conceived in the most general terms and falling considerably short of authorizing him to renounce a succession or any part of a succession. C. C. 2996, 2997.
Our re-examination of the testimony offered in support of Dr. Rudolph’s opposition has satisfied us that, whilst the doctor has somewhat overestimated the number of his consultations with the decedent, we have somewhat underestimated the character of the services that he was called on to render. He testifies that there were ten office consultations between November 2d and December 8th, from which last-mentioned date he visited his patient at the latter’s temporary residence until he died, and that he paid an average of five visits a day during that period. The patient was at first suffering with dysentery, was taken with pneumonia on the 12th or 14th, and recovered on the 22d or 23d, and, after a few days, developed toxaemia, of which he died on the 30th, from which it would appear that the doctor visited him for 22 days, which, at the average of 5 visits a day, would be 110 visits. Beyond that, however, it appears that the patient was irritable and intractable, and at times violent, and that he required services from the doctor which should have been rendered by the nurses and would have been rendered by them if they had been permitted. Upon the whole we conclude that the compensation to be allowed should be increased to $1,000.
It is therefore ordered that the judgment heretofore handed down be amended by increasing the amount allowed Dr. Rudolph to $1,000, and condemning the succession to pay the costs of his appeal, and that, as thus amended, it be reinstated and made final.