Succession of M'Candless

3 La. Ann. 579 | La. | 1848

The judgment of the court was pronounced by

Seibeee, J.

Hugh M/iCandless, a brother of the deceased, presented to the court at Rapides, charged with the succession, a will constituting him sole legatee, and prayed that it might be recognized as the last will of the deceased, .and executed accordingly. This the curator opposed, upon the ground that the •testament was null for defect of form.

The will was made in Mississippi, and it is admitted by the curator that it is .clothed with all the formalities required by the laws of that State. If, however, its validity in point of form be tested by our laws, it is conceded by the legatee •that the will is null. The succession of Me Candless consists partly of slaves, which our law considers as immovables, and partly of moveables. All were situated or found, at the time of his death, in the parish of Rapides, In that parish he had been domiciled for many years, and there died. In the year 1832, he went from Louisiana to Mississippi, apparently for a temporary purpose. He remained there a few months, and while there fell sick, and, on the day before he stai'ted for his home in Louisiana, he made the will. He continued after his return to be a citizen and resident of Louisiana, and died in Rapides, in 1845.

Our Code, after enumerating the three classes of wills — nuncupative, mystic, and olographic — and minutely prescribing the formalities to bo observed in making them, declares, in article 1588, that “ the formalities to which testaments are subject by the provisions of the present section must be observed, otherwise the testaments are null and void.” But the article which immediately follows, declares “ that testaments made in foreign countries, or in the States and other •territories of the Union, shall take effect in this State, [aupont leur execution dans cet Etut,] if they be .clothed with all the formalities prescribed for the validity of wills in the place where they have been respectively made.”

We find nothing jn these expressions which would authorize us in restricting •the article to the case of foreigners, or of moveable property. The language is ,unqualified, both as to persons and property; and fairly embraces wills made iibroad, by our own citizens, of immovables, situated within our territorial iimjts. Why should we make distinctions which the law has nof made ?

Slight reflection will show the impropriety, as well as illegality, of excluding our own citizens from the benefit of this provision. numerous class of them habitually leave the State for a short time during the hot months, for the purposes of health or pleasure. Others are called away from time to time by the necessities of business. A citizen thus absent may be visited by sudden sickness, and could rarely find in the other States .of the Union, mpch less in a foreign country, persons competent to advise him with regard to the formalities required by our law. It was therefore reasonable to permit him to adopt the solemnities known and required by the law of the country where lie is sojourning. To refuse him that privilege would be to deprive him, under certain circumstances, of authority over that which is his own, and which the law, as well as natural justice, permits him to dispose of.

But it is said that a previous article of the Code, in treating of the olographic will, and after having defined it as that which is entirely written, dated, and signed by the testator, and subject to no other formality, declares that, “ it may be made anywhere, even out of the State.” And, since in the relation to the other forms of will, there is no provision that wills made according to these forms out of the State shall be good, the rule “ Inclusio unius,” etc. is invoked. We do not see the force of this reasoning. -'The légatee asks that the will be sustained, not because it has the form of a nuncupative or a mystic will, but because it is a testament clothed with all the formalities prescribed for the validity of wills in the State of Mississippi, where it was made. If this h.ad been an olographic will made in Mississippi, the legatee would have asked its judicial recognition here, not because the laws of Mississippi recognize that form— which it seems they do noWbut because the lawgiver had said that the olographic will should be respected, even though made in a foreign country. There is no inconsistency between articles 1581 and 1589 ; and both must be so in,terpreted as to receive their full effect,

We have already observed that the language of article 1589 is general in its terms, and not restricted to particular kinds of'property. Nor do we find in ether parts of our Code, aDy language which would authorize us to confine to moveables, the operation of testaments made abroad in the foreign form. Unquestionably, in a proper sense, it is true that immovable property is controlled by the law rei silts. And if, for .example, this testament contained a substitution, or Bfideicommissum, which our law prohibits, we should hold such disposition null, even though it might be valid by the law of the State where the will was made. But in what relates to the exterior form, not to the substance of the testament, we find nothing in our Code authorizing a distinction between moveables and immovables.

The third clause of article 10 has been cited, but seems to us irrelevant to the present question. We understand the clause as referring,.not to the form, but to the substance, of a testamentary disposition, and permitting the validity of the testamentary disposition of mov.e.ables to be regulated by the law of the foreigner’s domicil.

We may remark, in conclusion, that article 1589, as interpreted, accords with what appears to be the prevailing doctrine of the continental jurists. See also jfi Robinson, 23i>. Judgment affirmed,