Chardon's Heirs v. Bongue

9 La. 458 | La. | 1836

Bullard, J.,

delivered the opinion of the court.

This is an action brought by the heirs at law of Joseph Chardon, to annul a testament purporting to have been made by public act, on various grounds as set forth in their petition. The judgment in the court below being in favor of the defendant, as executor and universal legatee, the plaintiffs prosecute this appeal.

The ground of nullity alleged by the plaintiffs is, that it does not appear from the will itself that it was read over to the testator in presence of the same witnesses who were present at the dictation, but that other witnesses may have been present than those who signed the will. The caption of the will does not name the witnesses, nor are their names mentioned at all until towards the close of the act. The notary begins by saying that the testator appeared before him, and in presence of the witnesses hereinafter named and subscribed, and towards the close of the act the witnesses are named, as having been expressly called for the purpose. That part of the act which relates to the reading of the will, as well as its dictation, is in the following words: “ C’est ainsi que le présent testament a été dicté par le testateur au notaire, qui l’a écrit tel qu’il lui a été dicté, et ce de suite, sans interruption et sans divertir a d’autres actes, le tout en présence des dits témoins; et mémes présences le notaire ayant lu ce testament au testateur a haute et intelligible voix, il a déclaré le bien entendre et comprendre, et y persé-vérer eomme contenant ses deruiéres volontés.”

'The plain and obvious meaning of this is, that the same witnesses whose names are afterwards inserted, and who signed the act with the notary, were present when the will was dictated, written by the notary, and read over to the testator. We are acquainted with no rule of law which requires that the names of the witnesses should be inserted in any particular part of the testament, and it appears to us sufficient, if it is shown by the act itself, that they were present as required by the code, and that they possessed the legal qualifications. We are not driven to any thing like implication, in order to arrive at this conclusion. It is stated in explicit terms, that the same witnesses named in the will, , . . , . . , ,. and who signed it, were present when the same was die-tated, written and read over to the .testator by the .notary. 30 Sirey, 2, 156.

ruíí?onaw ™ ‘ jhe -witnesses to a oiVPtion, or any particular part of the testament. ™^ient lf

Independently of this objection to the form of the testament, the plaintiffs allege that it is null, because in point of fact: 1st. The formalities were not fulfilled as required by law at one time, without interruption, and without turning aside to other acts; 2d. That it was made by means of interrogations addressed to the testator by the notary, and his answers;' 3d. That it was not dictated by Chardon, and written as dictated; 4th. That it is doubtful whether the testament was legally read over to the testator; 5th. That it is antedated; 6th. That the will of Chardon was not free; and, 7th. That the testament is-the result of fraud, and of moral constraint.

The four last points may be dismissed from our consideration, with a single remark, that there is no evidence whatever inducing us to believe that the testament bears a false date; that it appears both by the will itself, and by the testimony of witnesses, that, it was read over to the testator according to law, and that no constraint, no fraud, or no conspiracy to draw from the testator such a disposition of his property are proved; and that it is no longer permitted by our law to attack a testament, on the ground that its dispositions were the result of suggestion, hatred, anger or captation. Article 1470. (1479.)

We confine ourselves, therefore, to the inquiry, whether it has been shown that the testament was not dictated and written as dictated, without interruption, and without turning aside to other acts in a legal sense of those expressions.

A mere suspension of the proceedings, in making and writing a will, by the notary, for two or three hours, in consequence of the weakness of the testator, or his want of decision, or for time to reflect more maturely on the disposition of his property and affairs, when the notary and witnesses do not leave the house, is not a turning aside to other matters, so as to render the will illegal or null. The notary is prohibited from interrogating the testator, or so to shape his inquiries, while writing his will, as to suggest a particular disposition of his property. A suggestion of the notary is proscribed as a ground of nullity, by the Louisiana Code.

It is shown that after the first bequests were written, the testator became silent, and for a considerable time ceased to dictate, and the notary stopped writing. How long this cessation lasted is not clearly shown; the notary says less than an hour and a half. But the witnesses and notary remained together in the room, and the delay was attributable, either to the feebleness or indecision of the testator; in the meantime it is not pretended that any other business was transacted. This, it is contended, was an interruption which vitiates the testament. We cannot yield our assent to that proposition. A mere suspension of the proceeding, in consequence of the weakness of the testator, or his want of decision, or to give himself time to collect his thoughts, or to reflect maturely on the disposition of his property, does not amount, in our opinion, to an interruption in a legal sense of the word. In some cases it might be, on the contrary, evidence of greater deliberation on the part of the testator.

With respect to the principal point in the cause, to wit: whether the will was in fact dictated by the testator and written by the notary as dictated, we will premise what we’ have to say on that subject, by remarking that the objection on the ground that the testator was interrogated by the notary, resolves itself mainly to one of suggestion. The notary, by asking a question as t.o what disposition the testator wishes to make, might so shape his inquiry as to suggest a particular disposition, and might amount to an artful insinuation, spoken of by some of the French authorities cited in the argument. What is this but suggestion, which is now proscribed as a ground of nullity by our code ? It is shown that the notary did several times inquire whether the testator had not relatives and friends in France. If this was a suggestion to the testator, not to forget his distant relatives in. his last moments, the plaintiffs, who are those persons, could not reasonably complain of it.

The evidence relating to the dictation and writing of the will, is certainly contradictory, and even irreconcilable. On die one hand, Imbert, one of the subscribing witnesses, ■ swears at. first that the testament was not dictated by the testator, but that he barely answered yes or no to the questions put to him by the notary. On a subsequent , examination, he qualifies this, by admitting that some of the dispositions of the will were dictated. On the other hand, the notary public, Mr. De Armas, testifies that the testament was written by him, according to the dictation of the testator, if not word for word, at least that he gave his sense and meaning.

In support of the will, we have the act itself, duly certified under the official sanction of the public officer, fortified by his oath and three subscribing witnesses, one of whom alone has been examined to contradict it. The other witnesses appear to be still alive, but their testimony has not been procured. Under those circumstances we concur with the Court of Probates, that the plaintiffs have not shown enough to authorise us to declare the testament null and void.

It is, therefore, ordered, adjudged and decreed, that the judgment of I he Court of Probates be affirmed, with costs.