1 Rob. 359 | La. | 1842
The petitioners sue for their freedom under the last will of the late James Goodbee. The evidence in the case shows that on the 5th of December, 1838, a sealed olographic will of the deceased was presented to the Court of Probates of the parish of Iberville. It was, in due course of law, opened, proved, and ordered to he executed. On the same sheet of paper, and below the olographic testament, which hears date the 11th July, 1838, there was an instrument of writing purporting to he a codicil
The only question to be determined is, whether this case comes within the exception established by article 1576, in relation to the number of witnesses required for nuncupative wills, under private signature, when made in the country? The general rule, as provided by article 1574, is that testaments of this kind must be made in the presence, of five witnesses, residing in the place, or of seven residing elsewhere. The above mentioned exception declares, that with regard to wills made in the country, three witnesses residing in the place, or five residing elsewhere, will suffice, provided a greater number of witnesses cannot be had. The testimony shows that at the time of the execution of the last mentioned instrument, the situation of the testator was considered by his physician as extremely precarious. Pie had been very ill for some time past, and was then in the last stage of a dropsy, which might have caused his sudden death. These apprehensions of the physician are shown to have been well grounded, by the fact of the testator dying the very day after the will was made. The parish judge was sent for to make a will. Being unable to attend, he sent word that a will could be made without his presence, if attested by five witnesses, but that four would be sufficient, if a greater number could not be
It is therefore ordered that the judgment of the District Court be reversed ; and that the slaves Maria and George Joseph be declared to be entitled to their freedom under the will of the late James Goodbee, and that the executor take the necessary steps to have them emancipated according to law; the appellees to pay the costs of this appeal.