37 La. Ann. 833 | La. | 1885
The opinion of the Court was delivered by
The will of the deceased, which is in the nuncupative form by public act, is attacked on various grounds, one of which is that it does not contain the formal declaration that it was written by the notary.
We have carefully scanned the instrument and weighed each and every word used in the procés verbal of the notary, whether in the caption or in the closing part, and have failed to find any from which it can be even inferred tiiat the will was written by that officer.
The law, in mandatory terms, imperiously requires that express mention be made, not only that the will was'dictated by the testator and read to him, but also that it was written by the notary; and this under pain of nullity.
The omission to recite explicitly strict compliance with the requirements of the law is fatal, as it cannot be supplied by testimony aliunde. R. C. C. 1578, 1595; see 3 M. 167; 6 N. S. 263; 12 L. 114; 8 A. 469; 15 L. 28; 1 R. 48; 11 Ann. 108; 16 L. 82; 20 Ann. 203; 21 Ann. 115; 35 Ann, 480.
In the Lawson case, 12 Ann. 604, in which the will had been attacked because it did not set forth that it had been written by the notary, in the presence of the witnesses, the instrument contained express mention that the notary had written it in his own proper hand. What the Court held is: that it was fairly deducible from the tenor of the instrument that the witnesses were present while it was being prepared.
The other authorities referred to do not apply to a case of writing by the notary.
In the present case, the word written, or its equivalent, is essentially lacking.
The will is a nullity.
.Judgment affirmed.
