21 La. Ann. 280 | La. | 1869
Upon the decease of Gustave Ehrenberg, application was made to the Judge of the Second District Court of New Orleans to probate the following instrument as the last will and testament of said Ehrenberg, to witt
“ Mrs. Sopbie Loper is my heiress.
“ G. EHRENBERG.”
“New Orleans, March 16, 1861.
“ Tbe legatee’s name is correctly spelt Loeper. »
“G. EHRENBERG.”
On tbe back of tills instrument is written tbe following:
“Ebrenberg’s will, to be opened by S. B. Patrick, wbo will see it executed. Á copy of tbis will is left in tbe bands of tbe beiress.”
Tbe Judge refused to probate tbe act, on tbe ground that it was not a testament — that there was no disposition of property ; that the language could not be regarded as an expression of his will that Mrs. Loeper should inherit bis jn'opcrty.
From tbis ruling an appeal has been taken. A testament is an act clothed with certain formalities, by which tbe last will of the testator is manifested, in relation to tbe disposition of bis property, after bis death. It is proved that tbis instrument is entirely written, dated and signed by G. Ehrenberg. It is, therefore, clothed with tbe formalities required by law for an olographic testament.
The Code declares that one may dispose of bis property by will, “in any manner whatever, whether he has instituted an heir, or only named legatees.” C. C. Art. 1563.
And we are directed by tbe Code that, “ when, from the terms made nse of by the testator, bis intention cannot be ascertained, recourse must be bad to all circumstances which may aid in tbe discovery of his intention.” C. C. Art. 1703 j 1 An. 444 ; 2 An. 580.
If, then, any doubt be entertained in regard to wliat the deceased intended by the terms “ Mrs. Loeper is my heiress,” we are authorized to refer to his acts, in connection with this will, to learn the sense in which he used the words. More than a year after Ehrenberg made the will he wrote on the same sheet of paper, and below the will, “ the legatee's name is correctly spelt Loeper; ” and on the back of the document is endorsed, in his handwriting, “ Ehrenberg’s will, to be opened by S. B. Patrick, who will see it executed. A copy of this will is left in, the hands of the heiress.”
It is certain that Ehrenberg intended to make a will, and that he intended that the act in question should be probated and executed as his testament. It seems to us equally certain that the desire, will, of Ehrenberg was, that Sophie Loeper should have his property after his death, inherit it, that she should be his heir ot universal legatee. The testator’s intention is the object to be ascertained, and when learned beyond a reasonable doubt, it is the duty of courts to enforce it, if the dispositions be not reprobated by law. D. 33; L. 10; T. 71, 2 §; 7 An. 395 ; 4 La. 425; Fuselier v. Masse et al.