32 La. Ann. 437 | La. | 1880
The opinion of the court was delivered by
This is a petitory action to recover a plantation in the parish of Concordia. Before stating the prayer of the petition, it will be well to state briefly the facts on which the cause of action is based, in order to a clear apprehension of the issues presented for decision: ■ David F. Miller was twice married, his second wife being the plaintiff' in this suit. In 1856, during the existence of the second marriage, John A. Miller sold to Anna S. Miller, wife of David F. Miller, the land in controversy; the price of the sale was $38,638 14, all on credit, and' evidenced by six notes of David F. Miller, drawn to the order of John A. Miller, and falling due in 1857, 1858, 1859, 1860, 1861, and 1862, all secured by special mortgage on the property sold. David F. Miller died, in 1862 ; he left the following children, the issue of his first marriage : W. T., Eliza L., wife of W. B. Ulrich, Mary II., and Julia B. Miller, all majors,, and David D. and Henry W. Miller, minors, as also three minor children, the issue of ,his second marriage. On the 29th September, 1862, W. B. Ulrich, the son-in-law of the deceased, applied for the probate of his-will, which was ordered and granted, and on the same day a decree of probate was duly entered, and letters testamentary were issued to Ulrich,, who was named as such in the will. An inventory was taken, in which, was included the property above mentioned as having been acquired-from John A. Miller. Ulrich, the qualified executor, as far as the record-discloses, filed no account of his gestión ; various judgments were rendered against him as executor, amounting in principal alone to nearly-twenty-five thousand dollars, some of them, containing recognition off
The claim of plaintiff is :
First. That the property never belonged to the succession of her-husband, having been acquired by her; that although the price was ■ paid by the notes of the husband, these notes represented the giving to her in payment by her husband of a sum of money due by him in consequence of the receipt of her paraphernal property.
Second. That the will was never duly probated, the witnesses not ■ testifying to such facts as authorized the probate, and only two witnesses having been heard, when three were required by law. '
Third. That the appointment of Miller as executor was an absolute • nullity, as he was appointed under a so-called codicil, which was absolutely null, not being dispositive in its nature.
Fourth. That all the proceedings in the succession of Miller were • fraudulent and collusive, and were concocted between John A. Miller and the executor, with the object of divesting the succession of its title without consideration.
We will pass on the grounds in detail.
, 2. The will probated was in the nuncupative form by private act; the two subscribing witnesses, whose testimony was made the basis of the probate, testified as follows : one, “ that he had carefully examined the instrument presented purporting to be the last will of David Franklin Miller; that he recognizes it as having been signed .by said Miller, as for his last will in the presence of deponent and the other subscribing witnesses on the day of its date, and'that the said Miller presented it to the witnesses, declaring it to be his last will and testament ; that deponents and the other subscribing witnesses, at the request of said Miller, and in his presence, and the presence of each other, signed the same as witnesses; that all of said witnesses were at the time residents of this parish; that Phelps and Hamberlin are now absent from the State. The other witness testified that he has carefully examined the instrument purporting to be the last will of David Franklin Miller; that he recognizes the same as having been written by deponent under the dictation of said Miller ; that said Miller presented the same to the subscribing witnesses, declaring it to be his last will and testament, and signed the same in the presence of deponent and the other subscribing witnesses, and that deponent and the other subscribing witnesses, at the request of said Miller and in his presence, and in the presence of each other, signed the same as witnesses; that all of the subscribing witnesses were residents of this parish, and that Phelps, Hamberlin, and Welch, as deponent is informed and believes, are now absent from the State.
The grounds upon which it is said that the testimony was insufficient to justify the probate are, first, that only two witnesses testified ; second, that the proof did no! show that the will was read to the testator in the presence of the witnesses.
First. The absence of the three other subscribing witnesses was sworn to, and such absence justifies the probate on the testimony of less than three witnesses. C. C. 1653. True, in the case now before us there is testimony going to show that one of the witnesses sworn to as absent was really present in the State. The proof is not certain, but if it were, the fact would not render the probate absolutely null.
Second. There can be no doubt that the reading of the nuncupative will by private act is necessary to its validity; but O. C. 1649, in pointing out what proof is required to probate such a will, does not enumerate
Third. We think it only needs statement to maintain the proposition that one who has made a last will may by a subsequent will clothed with the legal formalities appoint a testamentary executor. The last will was in the olographic form, and was duly probated. It is contended, however, that this last will refers to the appointment of an executor to some other than the will to which we have previously referred. This claim results from the following: The will last in date, which is called a codicil, says, “ I hereby add this as a codicil to this my last will and testament, the said will having been dated on the 14th day of March, last past.” * * * * The will referred to is dated the 14th day of March, but the word fourteenth, which in the original will is written in letters, appears to have been incorrectly spelled, and has been altered. It is claimed that the word was originally the twentieth, and therefore the appointment of the executor refers to another will than the one probated. The original will is annexed to the transcript, and we are entirely satisfied that the word, as originally written, was the word fourteenth, which has been simply corrected as to spelling. The codicil, as found in the record, is attached to the will, and in it the testator speaks of it as “ this my will.”
Fourth. We find no proof whatever of the charges of fraud. It 'is said that the claim of the first mortgage creditor was prescribed. We know not whether such was the case, but it is manifest that the ■claim was allowed by the executor on his account, and although so allowing it cut all the other creditors off in the distribution, no one seems to have charged or pretended that the claim was barred by pre
The judgment below is affirmed with costs.
Rehearing refused.