Langley's Heirs v. Langley's Executors

12 La. 114 | La. | 1838

Carleton, J.,

delivered the opinion of the court.

This action is brought to set aside the nuncupative will, by public act, of George Langley, deceased, and to recover the personal and real property of his succession, which is alleged to be in'the possession of his testamentary executors, the defendants.

The plaintiffs, who are the presumptive heirs of the deceased, alledge the will to be null and void, as follows :

1st. That the testator was insane at the time of its execution.

2d. That it “ was not declared by the testator, and received by the notary, in the presence of three witnesses, residing in the place, as the law directs, nor was the said will read to the testator by the notary, in the presence of the witnesses, as the law directs.”

The Probate Court, by its decree, sustained the validity of the will, and the plaintiffs appealed.

The first point having been abandoned at the trial, the controversy is made, by the pleadings, to turn entirely upon the second.

Isidore Languin, one of the three subscribing witnesses to the will, states, “ that he was not present when the will was dictated by the testator to the notary public. Witness, and the other two witnesses to the will, viz : Mailliard, senior, and J. Mailliard, were all present when Mr. Crawford, the notary public, read the will to Mr. Langley, and when Mr. Langley and the notary, and the other witnesses, signed the same, and they were all present when witness signed the will. Being asked whether Mr. Langley acknowledged the will to be his will, answered that he did.”

A nuncupative will, tobe valid, must be dictated and written by tlie notary as die* fated, in the presence of three witnesses resi-dinginthe place, etc., and then read to the testator by the notary, in the presence of the witnesses. So, where one of the witnesses was not present when the will was dictated, but it was read i to the testator ‘ by the notary,in the presence of all the witnesses, and they all signed with the testator and notary : Held, that the will is a nullity.

The article 1571 of the Louisiana Code, declares, “ that nuncupative testaments by public act, must be received by a notary public, in presence of three witnesses, residing in the place where the will is executed, or of five witnesses not residing' in the place. This testament must be dictated by the testator, and written by the notary as it is dictated.”

What then is to be received by the notary 1 The law answers the question : the testament, not already written, for, the notary is required to write it himself. It is then plain, from the nature of the act to be performed, and as the Avoid nuncupative, in its etymology, imports nuncupo, to pronounce, that the testator declares his intention in words, which are committed to writing as they are uttered : that is to say, the testator dictates his will, and the notary writes what is so dictated, in presence of three witnesses. The law adds, it must then be read to the testator in presence of the witnesses.

The legislature has thus provided a double safeguard for the faithful execution of tvills, by requiring they should be dictated in presence of three Avitnesses, to Avhom they are then to be read, that it may appear they were truly Avritten as dictated.

The opinion here expressed, is in harmony with that entertained by this court, as far back as the year 1813, under the provisions of the old code, Avhich have been copied verbatim into the Louisiana Code of 1825. 3 Martin’s Reports, 167.

It does then appear to this court, that as there were but two Avitnesses present, at the dictation of the will, the requisites of the law have not been complied with, and that .the will is a mere nullity.

It is, therefore, ordered, adjudged and de'creed, that the judgment of the Court of Probates be reversed; and proceeding to render such judgment as ought to have been rendered by the court below, it is further ordered and decreed, that the;, last will and testament of George Langley, deceased, be, and the same is hereby declared null and void ; that the probate thereof be set aside ; that the letters testamentary, granted under said will tó the defendants, be revoked ; that said executors account to the plaintiffs for the property and effects of the estate of said deceased, that may have come to their possession or under their control, and that the costs in both courts be borne by the estate.