39 La. Ann. 1092 | La. | 1887
The opinion of the Court was delivered by
This is an appeal from a decree orderiug the execution of the will of the deceased as being in the nuncupative form, under private signature.
The objections urged against its validity are : That it was executed in presence of three witnesses in the country, where more could have
It is unnecessary to pass upou the first objection.
As to the second, it is fatal to the validity of the will.
The evidence conclusively shows, that the witness Main did not understand or speak the French language.
It is, however, contended that, as the will was translated to him in English, by another witness, while the testator was uttering his intentions — this ceremony supplies the absence of knowledge of the language.
There might be some plausibility in the retort had the will been translated, not only at the time tliat'it was being taken down, but also when it was read to the testator, if he understood the English language ; but it does not appear that this was done.
The law is emphatic. It disqualifies a person who is deaf, as a witness to testaments, and it exacts that its requirements touching the formalities to which wills are subjected, be strictly observed, under, pain of nullity. R. C. C. 1591, 1595.
Under the Roman, the French and the Spanish law, knowledge of the language in which the will is dictated and written down, is deemed indispensable for the validity of the will, when, to be valid, it must have been executed in the presence of witnesses. Mackeldey, § 642; 1 Febrero, No. 12 and 16; 4 Marcadé, p. 42; 5 Toullier, No. 393; 9 Duranton, p. 113, No. 79; Saintespes Lescot Donat, p. 97, No. 1038; 2 Mourlon, No. 785; 21 Demolombe, No. 196-7, 251; 13 Laurent, No. 268; Merlin, vo. Test. (Quest de Droit) xvii, art. 2.
In Hebert vs. Hebert, 11 L. 364, and Breaux vs. Gallusseaux, 14 Ann. 233, in this State, it has been held that a witness who does not understand the language in which the will is couched, is incompetent, and the testament is a nullity.
Had the witness Main, in the instant case, when interrogated, been asked to state his knowledge of the contents of the will, as acquired from the reading only, and not from the translation, whatever it be, previously made to him, assuredly he would have remained perfectly dumb. From a legal standpoint, he was intellectually deaf, and disqualified from service.'
It is apparent that it was impossible for him to have compared the translation in English with what was read in French, and that as to him, the will was no more read than if he had not been at all in attendance.
It does not appear that the testator understood the English language,
While fully appreciating the utterance of our immediate predecessors touching the sacreduess of the will of the departed ones, which should be respected as their graves, (30 Ann. 217), we cannot say that the ceremonies observed at the making of what is termed the will of the deceased have impressed upon it a sanctity, which shields it from the assault now made, and we are driven to the necessity of declaring that one of the three subscribing witnesses being incompetent, the ceremony has taken place before two witnesses only, while the law imperiously requires that three at least.should attest its execution.
The pretended will must, therefore, be considered as having never been made, and having no legal existence, .
It is, therefore, ordered and decreed, that the judgment appealed from be reversed, and that the application for the probate and execucution of the will be rejected, with costs in both courts.
