No. 5176 | La. | Apr 15, 1874
Lead Opinion
The defendant has appealed from a judgment annuling the nuncupative will by public act of Christian Rongger on grounds-of informality. The will reads: “I, tho notary, at the request of Philip Lorch, of this city, did repair to the residence of Christian Rongger,. at the corner of Henry Clay avenue and Levee streets, in this city, where I found the said Christian Rongger sick in bed, of sound mind and memory, as he appeared to me, notary, and the three witnesses named and undersigned. Whereupon the said Christian Rongger did declare and dictate to me, notary, his last will and testament, and I did write down the same in mine own handwriting according to his said
The grounds of informality are:
First — The will was not received by the notary in presence of three competent witnesses residing in the place where the will was executed.
Second — The same was not dictated by the testator to the notary in presence of the witnesses, nor written by the notary as dictated.
Third — All legal formalities requisite for the validity of the will were not fulfilled at one time without interruption, and without turning aside to other acts.
I. It is urged that there is a distinction between domicile and residence, and the statement that- the witnesses were domiciliated in this city is not a compliance with the law, which says “witnesses residing in the place.”
We are satisfied the notary used the word domiciliated as synonimous with residing, as it is, and without any consciousness of the legal distinction invoked by counsel.
II. and III. The essential formalities are, the will must be received by the notary in presence of three witnesses residing in the place or five not residing there; it must be dictated by the testator and written by the notary as it is dictated; it must be read to the testator in presence of the witnesses; express mention is made of the whole, observing that all those formalities must be fulfilled at one time without interruption, and without turning aside to other acts; it must be signed by the testator, or mention made of the reason of his not doing so, and by the witnesses or one for all. R. C. C. 1578, 1579, 1580.
The above extracts from the will, although not very artistic, make it manifest, we think, that those formalities were observed. There are no sacramental words prescribed by law. If words are used which taken all together show that the notary did all that the law makes essential, the will is good as to form, although the notary may be confused in his manner of expressing himself. The object of the law is to have it appear from the will itself that the prescribed formalities
It would have been more clear and accurate if the notary had used the words “as dictated,” instead of “according to his dictation;” but the latter expression, as used in this instance, means what the other does. To adopt the construction contended for would be refining a little more than the law does, and prescribing a fixed formula to be used by notaries, who all have their peculiar mode of expression.
It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of the defendant with costs.
Dissenting Opinion
dissenting. The rules regulating the confection of wills are simple, but they are, in my opinion, inexorable. Nullity is the result of their violation. In this case I do not find that the will in question was dictated in the presence of the witnesses. This I think indispensable, and I therefore dissent from the opinion of the majority.
Dissenting Opinion
dissenting. I concur in this opinion.