―The declaratory judgment statute merely creates a procedural device whereby the courts may make a declaration of rights without the executory or coercive relief embodied in a conventional judgment.‖
How later courts described this case
- ―The declaratory judgment statute merely creates a procedural device whereby the courts may make a declaration of rights without the executory or coercive relief embodied in a conventional judgment.‖
- “extrinsic evidence is only used to resolve ambiguity, “not to rewrite [a] will or do violence to its terms”
Written by the judges who cited it.
The opinion
McCALEB, Justice
(dissenting).
I agree with the views of the Court of Appeal (see 172 So.2d 89 ) and, especially, those of Judge ad Hoc Ellender which are quoted with approval by the Court of Appeal (see 172 So.2d at page 99 ).
In my opinion, the will is neither ambiguous nor is its bequest to the testator’s wife contradictory as the majority opinion apparently conceives. It distinctly bequeaths to the wife enjoyment and usufruct during her life of all property; it does not bequeath “all property”. Hence, the descriptive language following the disposition concerning the wife’s use of the bequest, viz — -“for her to do with, enjoy and dispose of as she pleases, and as a thing belonging to her” plainly refers to the thing given (usufruct of the property “during her life”) and not to the property itself as the wife, according to the proper signification of the terms of the testament cannot be regarded as universal legatee.
Article 1712 of the Civil Code governs the case; it should be applied.
I respectfully dissent.