Le Blanc v. Baras's Heirs

16 La. 80 | La. | 1840

Morphy, J.

delivered the opinion of the court.

Marie Le Blanc, widow of Julien Baras, having presented, for probate, the last will and testament of her late husband, the heirs at law, of the deceased, opposed the recording and execution of said will, and prayed that it should be set aside and annulled, on the following grounds, to wit:

Parole evidence is inadmissible to show that all the formalities of a nuncupative will by authentic act, have been fulfiled. It must make full proof on its face.

That the said testament does not contain any express mention of the residence of the witnesses, in whose presence it appears to have been received.

2. That it has not been read to the testator in presence of the witnesses, as there is no express mention of the fact.

3. That the will does not show that all the legal formalities were fulfilled at one time, without interruption, and without turning aside to other acts.

The opinion, which we feel ourselves constrained to express on the first ground of nullity, urged by the heirs of the deceased, will make it unnecessary to examine the two others.

A nuncupative will by public act, makes full proof of itself. Louisiana Code, article 1640. It must, therefore, bear on its face the evidence that all the formalities required by law for its validity, have been thereby complied with, and the fulfilment of those formalities, when not apparent from the instrument itself, cannot be established by testimony. If it could, the will would no longer be an authentic act.

The Louisiana Code, article 1571, provides that “the 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 dictated.

“It must then be read to the testator, in presence of the witnesses. Express mention is made of the whole, observing that all these formalities must be fulfilled at one time, without interruption, and without turning aside to other acts.”

Article 1588, says, “ the formalities to which testaments are subject by the provisions of the present section, must be observed ; otherwise the testaments are null and void.”

This will, in its caption, states “ enpresence des sieurs John H. Thomas, Charles Fagot et Therence Boutté, tons trois temoins requis en conformity de la lot est comparu,” &c. It does not appear from this passage, or any other in the instrument before us, that the requirement of the law, in relative to the residence of these witnesses, has been complied with. The probate judge, when called upon to order the execution of this will, had no evidence to satisfy him, that all those things which are required, to give validity to the will, had been done. The residence of the witnesses not being mentioned, it did not appear, from the will, that it had been received in presence of a sufficient number of witnesses. It has been contended, that from the words, “en conformité de la loi,” the inference might be drawn, that the witnesses were such as the law requires. Such an inference, if admitted to supply the mention of this fact, might be extended to every one of the formalities prescribed. Their absolute omission, might with as much reason, be said to be supplied by an assertion of the notary, that he executed the will according to law. The Code not only requires these formalities to be pursued, but provides that express mention of their fulfilment must be made in the will itself, when executed before a notary public. It is on a strict compliance alone with these formalities, that the law is willing to recognize the testament as legal, and to suffer the established -order of succession to yield to the will of the testator. When a case of this kind arises, courts of justice can do nothing else, but inquire whether they have been pursued. The objection taken by the heirs at law, in this respect, appears to us fatal.

Where there are but three witnesses to a will by authentic act, express mention must be made in the will, that they "esicle in the place where the will is executed. The formalities required to be pursued in a will by authentic act, * express mention must be made in the will itself of their fulfilment, on pain of nullity of the entire instrument.

It is, therefore, ordered, adjudged and decreed, that the judgment of the court below, homologating the last will of Julien Baras, and ordering its execution be reversed ; and that the said last will, be set aside and annulled, the appellee paying the costs in both courts.