11 La. Ann. 108 | La. | 1856
The nuncupative testament, .by public act, of the late Elmire Christine is sought to be annulled by this action, on several grounds of nullity, one of which is, “ that the will was not dictated by the testatrix and received by the notary, in presence of three witnesses, as no mention of the same is therein made.”
The Code, Article 1571, requires the nuncupative testament by public act to be received by a notary in presence of three witnesses residing in the place where the will is executed, &c.
In the present ease, the act per se does not appear to have been dictated by the testatrix and written in presence of the witnesses. The caption recites that the act was written by the notary at the request of the testatrix and as dictated by her, but makes no mention that it was done in presence of the witnesses. In the conclusion, the notary certifies that the testatrix signed the act in presence of the witnesses, “ after having read the same in an audible voice, in presence of the testatrix and the said witnesses, without interruption or turning aside.” Certainly this cannot be construed as implying that the will was received by the notary in presence of the witnesses. We have been unable to discover, from the context of the instrument, anything that would sanction the conclusion that the witnesses were present when the will was received by the notary.
Judgment affirmed, with costs.
