Lewis' Heirs v. His

| La. | Apr 15, 1833

The opinion of the court, Mathews, J. absent, was delivered by

Pouter, J.

This is an action instituted by the heirs of the deceased Robert Lewis, to annul and set aside an instrument which had been probated as his last will and testament; or in case the will should not be declared void in toto, to have certain bequests therein, contained, annulled.

Heirship may to proved by reputa-«onand othercor-roborating facts Sflmrtatowhere iiavebecaibmed0. winie an <yaer tL Story™bates directing execution 0f n wjllieunreversed no other court vhi void! prevent its execution, or collaterally examine the correctness of the order or judgment.

The petition sets out that the will which the plaintiffs seek to annul, purports to be the mystic will of the said Robert Lewis, written by another person, and for the validity of such wills, the law expressly requires that the same, or the paper serving as their envelope, be closed and scaled. Second, that the testator shall present the same thus closed and sealed to the notary, and to seven witnesses, or cause it to be closed and sealed in their presence. Third, that he shall declare to the notary in presence of the witnesses, that the paper contains his testament written by himself, or by another by his direction, and signed by him, the testator. Which your petitioners aver, and are ready to prove was not done, and which does not, as it ought to appear to have been done, from the act of superscription of said will.

The answer puts at issue the heirship of the plaintiffs, asserts the validity of the will, ancl avers the legality of the several legacies contained in it.

There is also an answer by one of the legatees, a prayer of intervention on the part of one Sarah Lewis, and an answer on the part of the attorney appointed to represent the absent heirs, which we do not consider necessary to set out.

Before we enter on the principal questions in the cause there are two or three points of considerable importance, but of easy solution, which may be disposed of.

The first in order of these, is an objection to the sufficiency of the evidence to establish that the plaintiffs are the heirs A of the deceased. It appears from the testimony adduced, that they were born in Virginia, and that in that state no official register of marriages is kept, nor any of births. We think, under these circumstances, that the relationship may be proved by reputation, and by other facts tending to establish the connexion. The evidence on that head satisfies us in the present case, that the plaintiffs are the heirs of the deceased.

The second is, that the Court of Probates had not jurisdiction in this case, and could not entertain a suit to annul a -i . -i i t ♦ i •* a will. We think on the contrary it had íurisdiction, and J ° 1 we n°t see that any other court had already received the will and ordered its execution. While that judgment or order stood unreversed, no other court could declare the will voi(j ancf say should not be executed. The suit was there-fore properly brought, no other tribunal could collaterally examine into the correctness of the proceeding by which the i , t Will WaS probated,

_ _ . , The third omection. is5 that the allegations in the petition did not authorise the introduction of parol evidence to attack the verity of the instrument, even admitting that species of proof to be admissible, under proper averments.

We have already, in order to show the strength of this objection, set out verbatim, the allegations in the petition. It appears to us they did authorise the proof. The plaintiffs say they will prove, that those things which are necessary to give validity to the will, were not done ; it is true, they add, that these things do not appear to have been done, as they should appear, by the superscription; but, under these allegations, the fair and just construction appears to us, that they would prove by evidence aliunde, as well as by the instrument itself, that the formalities of law had not been complied with.

But another, and more serious objection, is made to the introduction of parol evidence. The act of the notary re-ceivingthe will in the presence of witnesses, is an authentic act: and it makes full proof of what is contained in it. To authorise you to disprove its verity, you should have made an inscription de faux, as is the practice in France. Such is certainly the course of proceeding in that country, and it appears there are two inscriptions of this kind. Faux principal, which we understand to be equivalent to a prosecution here on behalf of the state against the authors of the crime. The other is called the faux incidentals, to which we have nothing similar in our practice, and which we do not think it very desirable we ever should. By this proceeding, whenever an act is presented by one of the parties, in the course of a trial, which purports to be authentic, and the other alleges it is not so, the civil suit is suspended until a trial can be had on the inscription de faux, which partakes of the character of a criminal prosecution. This, in France, it is proper to remark, is the consequence of positive legislation. Here our legislature have furnished us with no provisions on the subject, which implies very strongly they did not intend the remedy should be used. Our practice in Louisiana, it appears to us, is more simple and direct, and attains the ends of justice just as efficiently. We do not wait for a judgment in the criminal prosecution, because it could not be evidence against those whose civil rights were affected by the instrument. Instead of the faux incidentals, we permit the party attacking the instrument, to introduce the proof in the civil suit; all we require of him is, that if the act emanates from him, or is alleged to emanate from him, he shall attack it directly, and put Ms opponent on Ms guard. 6. JV*. S. 512. We see no reason to change our practice ; positive law does not ¡require us to do so — convenience does not. Under our code, we think there is the same authority to bring a suit to set aside an instrument which stands in the way, and obstructs the enjoyment of a right to property, as there is to sue directly for that property itself. And if the suit can be brought, the proof may be admitted, unless we come to the conclusion that what notaries do, is binding on the whole world, which is not pretended, and could not be maintained.

a person can only attack, di*ectiy,an authentic act alleged to ^T®.^eon “ado

We now come to the merits of the case. The Louisiana Code requires, for the validity of the mystic, or secret testament, that,

K The testator must sign his dispositions, whether he has written them himself, or caused them to be written by an other person.

“ The paper containing these dispositions, or the paper serving as their envelope, must be closed and sealed.

u The testator shall present it, thus closed and sealed, to the notary and to seven witnesses, or he shall cause it to be closed and sealed in their presence. Then he shall declare to the notary, in the presence of the witnesses, that the paper contains his testament, written by himself, or by another, by his direction, and signed by him the testator.”

If the formalities required by law, have not been pursued, a testament is void, no matter how strong may be the moral evidence that it contains the testator’s last will. It is sufficient, the declaration required for the validity of a mystic testament is made in words conveying the same idea, as those used in the Louisiana Code.

The object of these ceremonies, is to prevent impositions being practised on men in their last moments. And the law, in its anxiety to guard against the testator being circumvented, or practised on, will not permit a testament to have any effect, no matter how strong the moral evidence may be that it contains truly his last dispositions of his property. The formalities, (our Code says) must be observed, otherwise the testaments are null and void. Courts of justice, therefore, can do nothing else but inquire, when a case of this kind arises, whether the formalities have been pursued.

In the case before us, the evidence satisfies us, that the testator did not declare, in the presence of the witnesses, whether the will had been written by himself, or by an other under his dictation, and signed by him. This declaration is required to guard, as much as possible, against the substituting, thereafter, another will in place of that which the testator presents, and in furtherance of the object which the law has so much at heart, is not without its utility. But whether of utility or not, it is a formality in the making of a will; it is a formality which has not been pursued, and for want of which the law has declared the testament shall be null and void.

It has been contended that the words used in the law are not indispensably necessary to be followed by the testator, and that other language, which conveys the same idea, is sufficient. This is true, and there are several cases decided in the French courts on that principle. Whenever it can be fairly inferred from what was done, that the law has been complied with, it is sufficient. Here we cannot indulge in such a presumption, for the proof repels it.

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