59 So. 29 | La. | 1912
This is a proceeding for the probate of the will of the decedent. Instead of proceeding ex parte, the proponent took a rule on the legal heir of the decedent to show cause why the will should not be probated. The will is in the nuncupative by public act form. The legal heir, in alleging cause why it should not be probated, denied seriatim every one of the recitals made by the notary of compliance with the formalities prescribed by law for wills in that form. On the trial of the rule, the only evidence offered was the will itself. The proponent offered no other, and the defendant in rule offered none whatever. The court admitted the will to probate, and the defendant in rule has appealed.
The proponent contends that a will by authentic act makes full proof of itself, and that no evidence can be admitted to contradict the recitals made therein by the notary of the formalities prescribed by law having been complied with. .i
To that effect, apparently, is article 1647, O. C., which reads:
“Nuncupative testaments received by public acts do not require to be proved, that their execution may be ordered; they are-full proof of themselves, unless they are alleged to be forged.”
And in Succession of T§te, 7 La. Ann. 95, this court did, in an opinion which was, however, set aside on rehearing, hold that evidence to contradict such recitals of the notary was not admissible until the notary had been prosecuted and convicted of misdemeanor in office for having made false recitals. That conclusion was reached
The learned counsel for the defendant in rule go further, however, and claim that, where denial is made of these formalities having been complied with, the will, ipso facto, ceases to afford any proof whatever; and that the compliance with the formalities must then be proved by evidence aliunde.
In thus contending they base themselves upon the same hereinabove transcribed article 1647 of the Code. Their argument is that the affirmative statement contained in this article (that nuncupative wills make full proof “unless they are alleged to be forged”) is prégnant with the negative (that they make no proof at all when they are alleged to be forged). The learned counsel fortify this argument by referring to article 2236, which reads:
“The authentic act is full proof of the agreement contained in it, against the contracting parties and their heirs or assigns, unless it be declared and proved a forgery.”
They point out that in the case of ordinary authentic acts the requirement is that the allegation of forgery be not only made, but also proved, whereas, in the case of wills, the requirement is only that the allegation be made, not that it be both made and proved.
Whatever force there may be in this argument, it does not convince us that the in, tention of the framers of our Code in omitting from this article 1647 the requirement that the allegation be proved was to abandon, and go counter to, the fundamental rule of evidence by which fraud or crime is not to be attributed to public officers in the discharge of their official duties until due proof has been made; and yet such would be the logical and inevitable conclusion from the contention of the learned counsel. In every case, the solemn, official recitals of testaments would be nullified, and fraud ana crime prima facie established against the notary, by a bare unsworn allegation of forgery.
The provision of the Code Napoleon corresponding with the said articles 1647 and 2236 of our Code is article 1319, reading:
“The authentic act makes full proof of the agreement contained in. it, against the contracting parties and their heirs or assigns.
“However, en cas de plainte en faux principal (a free translation of which is, in case a criminal prosecution is instituted against the notary for having made false recitals in the act), the execution of the act alleged to be false shall be suspended as an effect of the institution of the criminal prosecution: and, en case ¿’inscription de faux faite incidemment (a free translation of which is, in case the charge of falsification is also made in the civil suit itself), the court may according to circumstances suspend provisionally the execution of the act.”
In Prance, under this codal provision, an authentic act makes full proof, in the sense that evidence to contradict its recitals is not admissible, unless the notary has first been criminally prosecuted and convicted.
Now, our article 2236 is an exact translation of the first paragraph of said article 1319 of the Code Napoleon, to the effect that the authentic act makes full proof; but the second paragraph of said article 1319, O. N., was discarded by the framers of our Code. They substituted for it in article 2236 the words, “unless it be declared and proved a forgery,” and, in article 1647, the words, “unless they are alleged to be forged.”'
The function of the second paragraph of the said article 1319, O. N., is to qualify
Our conclusion is that the recitals of a nuncupative will by authentic act must be considered as proved until disproved.
Judgment affirmed.