41 La. Ann. 1109 | La. | 1889
Mrs. Bridget Murray, wife of George Grover, died in the city of New Orleans, on the 16th of November, 1888, leaving a nuncupative testament, which was received by public act. This will is couched in the following terms, viz :
“ State of Louisiana — City of New Orleans.
“Be it known that on this ninth day of December, eighteen hundred and eighty-four.
“I, Alphonse Barnett, a notary public, in and for the city and parish of Neto Orleans, duly Commissioned and sworn did, at the request of Bridget Murray, wife of George Grover, proceed lo her residence at the corner of Bieiwille and Bwrgundy streets, m the second, district of this city, where I found the said Mrs. Grover, sound in mind, memory and understanding, as she appeared to me, notary, and the witnesses hereinafter named amd undersigned, amd she requested of me, notary, to receive her last will and testament, as folíolos, to-wit:
“My name is Mary Bridget Murray, and am a resident of this city.
“ I have no father or mother living and no children.
“ I give and bequeath to my husband George Grover, the whole of my property, movable and immovable, I may die possessed of.
“ I appoint my said husband George Grover, my testamentary executor, with seistim of my estate.
“ I revoke all loills and testaments heretofore made by me.
“ It is thus that the foregoing ivill was dictated to me, notary, by the testatrix to the undersigned notary in presence of said witnesses, a/nd the undersigned notary did ivriteit down as dictated by said testatrix impresence of said witnesses, and lecture of said ivill as dictated and written having been given by the undersigned notary in a loud and intelligible voice, to the said testatrix m presence of said witnesses, as she declared to me, notary, m presence of said witnesses, that it contained her last will and testament in which she persists, the whole was done atone time without interruption or im-ning aside to other acts, in the presence of said witnesses, who hewe signed their names with said testatrix a/nd me, notary, the witnesses hereto being Bobert (Beuben) T. Wheeler, Joseph Baillet and William S. Mackey, residing in this city and of Imvful age. The na/me of Bobert ei'ased and that of Beuben ■interlined appd before signing the name of Mary interlined also appd before signing.
MABY GBOVEB.
BEUBEN T. WEEELEB.
JOSEBE BAILLET.
WM. S. MACKEY.
A. BABNETT, Not. Bub.
The various alleged defects in the will are set out with great particularity and in extenso in the petition, but as they are succinctly summarized in plaintiff’s brief, we quote them, viz :
“1. It was not received by said notary in the presence of three witnesses, of lawful age and residing in this place, and otherwise competent as required by law.
“ 2. It was not written by said notary as it was dictated and in the presence of the said three witnesses. ■
“ 3. It was not read by said notary to said testatrix in the presence of the same three witnesses.
“ 4. It was not signed by the testatrix in the presence of the same, three witnesses and the said notary.
“ 5. It was not signed by the same three witnesses.
“ 6. The act states the testatrix to be ‘ Bridget Murray, 'wife of George Grover,’ and further states that she dictated to the notary her name to be ‘ Bridget Murray,’ whilst the act is not signed with that name, but is signed ‘ Mary Grover,’ an entirely different name.
“7. The interlineation of the word ‘Mary’ before the word ‘Bridget, on the first page of said act, was made after the signing and conclusion of the will, as is shown by the interlineation running irregularly between the ruled lines of the writing paper, and the scrawled signature ‘ Mary Grover’ and was neither dictated nor approved by the testatrix.
“ 8. The erasure of the word ‘ Bobert,’ and the interlineation of the word ‘ Beuben,’ were not approved by the testatrix, and show two different persons and appearing at different times, and of whom only one has signed his name.
“ 9. The three persons who signed their names are not the three witnesses referred to in the caption or at the end of the will, and were not all present as witnesses when the will was received, dictated, written and signed, continuously; and the act does not show who were the three witnesses.
*1112 “10. The act does not make proof by itself of a strict compliance with all the legal requisites, but does show on its face all of said illegalities.
“11. All the legal requisites wore not done at one time, without interruption and without turning aside to other acts, and such formalities as were observed, were done at different times.”
We will discuss these various objections seriaUm., and in the order foregoing.
I.
Preliminary to the discussion of the merits are the exceptions of George Grover, beneficiary under the mooted will, and two bills of exceptions retained by him, during the trial.
(a.) The exceptions are: First, that the petition contains inconsistent demands, and fails to aver any injury as resulting from the alleged errors in the copy of the will; second, that it is vague, general and indefinite ; third, that is shows no cause of action ; fourth, that the plaintiff must either accept or reject the succession of the deceased, absolutely and unequivocally; and in case she accepts, such acceptance must be with, or without the benefit of an inventory; and she cannot, assume an equivocal position, so “ as to receive, if there is anything to receive, and yet not be liable if there is any liability.”
These exceptions Avere overruled by the judge« quo, and the language of the petition, though somewhat guarded, is sufficient for his so doing. It is that the petitioner “is the sole legal heir of said deceased, (and) that, in so far as she may haA^e any right to do so, (she) accepts the succession of said deceased Avith the benefit of iLwentory,” &c.
This is folloAved by a prayer to the effect that the Avill and its probate be annulled and set aside, and “that petitioner be recognized as the sole legal heir of said deceased, under the benefit of inventory, and, as such, entitled to the entire estate of said deceased, after the payment of debts, if any there be,” &c. .
The object had in view by the petitioner was, doubtless, to preserve the benefit of being liable for the charges and debts of the succession only to the value of the succession effects. R. C. C. 1032,1054.
The code defines “ succession ” to be the transmission of the rights and obligations of the deceased to the heirs. R. C. C. 871.
It is matter of no consequence whether the property exceed the. charges; or the charges exceed the property, or Avhether the deceased left charges without property. R. C. C. 872.
The right of an heir to be discharged from the payment of his ancestor’s debts out of his own property, by abandoning the effects of. his
(ft.) The demands of her petition are all of like tenor, and tend to the same conclusion, the nullitp'- of the will. They do not assail the will for any inherent defects, but are, that it is null for vices of form. They appear to us to be perfectly consistent, and free from ambiguity, and set out a cause of action.
(e.) The defendant’s exceptions are taken to the rulings of the .judge in permitting the plaintiff to restrict the effect of certain written instruments offered in evidence, to a definite purpose; his position being “that the documents must go in for all they are worth as evidence.”
It is elementary that a written instrument is only binding upon parties and persons to it, and'third persons are not estopped from assailing, or contradicting its recitals.
In this instance plaintiff’s claim is that Bridget Murray’s will is null, and she is her sole heir. If it'were true that the plaintiff was bound to offer and file the will “for all it is worth as evidence,” and could not be permitted to restrict the offer to a certain purpose, Unit would be an end of the case; because it is a fundamental rule of evidence that a party is bound by the testimony he places on record in his own behalf.
Plaintiff had the undeniable right to offer the will for the purposes of rem ipsam, as the commencement of proof, and with a view of exhibiting to the court its defects and informalities. If this were not a correct rule of evidence, how could fraud or simulation in written contracts be shown, by parol evidence. We think the judge a quo ruled correctly.
II.
The.judge of the lower court maintained the plaintiff’s first ground of objection to the will, annulled it, and held her to be Bridget Murray’s sole legal heir, and, as such, entitled to bo placed in possession of the property left at her demise.
t From his elaborate and carefully considered opinion, it appears that he rested his conclusions upon what was said on this subject in the Succession of Vollmer, 40 Ann. 597, and Weick vs. Heine, 41 Ann. —, and tíre various authorities therein cited.
“ In this case, the legal capacity of the three witnesses named, appears only from the declaration of the notary, the witness hereto * * residing in this city, and of lawful age. It is true the names Reuben, Joseph, and William indicate males, but there is nothing to indicate their age as being over sixteen years, or that they are not insane, or deaf, or dumb, or blind; or that they are capable of exercising civil functions, unless we accept, as such indication, the declaration of the notary that they reside in this city, and are of lawful age.
“ Under the decisions above quoted, the notary is not the judge as to these requirements, and, on the pain of nullity, it was his duty to mention explicitly the qualifications of the witnesses, in order that same might be determined by the court in the probate and execution of the will. Age and residence are only two of the seven qualifications required by law for nuncupative testaments, and nothing can be left to inference, or proof tie hors the face of the will itself.”
As a foundation on which to rest this proposition, the judge previously announced the opinion that “the nuncupative will by public act, must make, of itself and on its face, full proof that every requirement of the law for the execution of testaments in this form, has.been complied with.
“One of the requirements of the law is that the three witnesses, in whose presence the will must be received and executed, and who must sign the act, shall hare the, legal capaellg defined in Ji. O. G. 1591, * * 1592 and 1594.”
We are of the opinion that our learned brother of the lower court has mistaken the true import of R. C. O. 1591, el seqnenies.
In Vollmer’s Succession anle, we said of the testament under consideration — which was in nuncupative form, ly public act:
“ The charge against it is, that it does not set forth that the three witnesses are residents of the parish of Orleans, but that they are competent witnesses.
“ The omission is fatal. The notary is required, under pain of nullity of the aat, to express specifically every material fact constituting the competency of himself, and of the officiating witnesses, under the law, in that respect, and also of every formallity observed in the execution of the will. The not must make full proof, on its face, of every element necessary to its validity, as no evidence is admissible to supply any deficiency.”
The language in which that opinion is couched is carefully selected,
As it was a question of form, only, we must look to the articles of the Code which prescribe the essential formalities for this particular kind of testament. Now we find in Article 1578 this declaration :
“ The nuncupative testaments by public act, must be received by a notary public, in the presence of three- witnesses residing in the place where the will is executed, or of five witnesses not residing in the place.
“ This testament must be dictated by the testator, and written by the notary, as it is dictated.
“ It must then be read in the presence of the witnesses.
“ Express mention is made of the whole, observing that all those- formalities, must be fulfilled at one time, without interruption, and without turning aside to other acts.” R. C. C.
The guarded language of, our opinion in Yollmer’s succession, was aptly chosen, and properly limited to the question of the special qualification of witnesses to a nuncupative testament by public act, on the score of their residence in the place where same was executed, that being the only one involved in that case. Hence we said that the notary is required “ to express specifically every material fact constituting the competency of himself, and of the officiating witnesses under the law, in- that respect, and, also, every formality observed in the execution of the will.” (Italics are ours.)
There is no other formality in the execution of a nuncupative will by public act, than those enumerated in R. G. C. 1578.
In Weicke vs. Heine, we merely quoted what was said on this subject in Yollmer’s succession, with approval, without announcing anything new or additional; for that .was a similar case.
It will be observed that the articles of the Code succeeding 1580 treat of nuncupative testament under private signature, the mystic or sealed testament, and the olographic testament, and designate the requisites of each.
They are followed by articles containing general provisions which are applicable alike to all. Among this number is article 1591, which declares that certain designated persons “are absolutely incapable of being-witnesses to testaments ” — not to the nuncupative testament by public act, alone, but to testaments, in general.
In this and subsequent articles the plural noun “ testaments,” is employed in a generic sense, to indicate the applicability of the principle to
We think it erroneous to conclude, therefrom, that, in order to be valid, a nuncupative testament received by public act, should circumstantially recite full compliance, with all the formalities that are prescribed iu that section; on the contrary, we think such a testament would be, utterly, null and void, if it did recite them all. For instance, article 1588 provides, that the olographic testament, “in order to be valid, must be entirely written, dated and signed by the testator.”
That is one of the formalities to which testaments are subject by the provisions of that section, yet it is completely at variance with those required for the validity of nuncupative testaments received by public act, which are likewise provided by that section.
This is sufficient to show that article 1595 employs the word “testaments ” in its generic sense, and that the law-giver intended it should convey the idea, that the several formalities which are required in the confection of different testaments, must be observed therein respectively, and -not collectively.
Article 1591 is in the same category, and it is clear to our minds that if does not specify any formality to which testaments are subject, but simply declares what persons are absolutely incapable of being witnesses to testaments, in general. If this article has received a proper interpretation at'the hands of our learned brother of the lower court, the law has entailed upon notaries a great hardship — the performance, indeed, of an utter impossibility — iu requiring that, on pain of nullity, they shall specifically state, in acts executed by them, all the facts which tend to negative the disqualifications of witnesses mentioned in that article. For, how could a notary know that a witness was more or less than sixteen years of age; or was so deaf, dumb, blind or insane, that he was incapable of being a witness to a testament ? By what means could he determine; what persons are disqualified by the criminal law from exercising civil functions ?
Such an interpretation was certainly not intended by our opinion in Yollmer’s Succession. When it said that “ the notary is required, under pain of nullity of the act, to express specifically every material fact constituting the competency * *' of the officiating witnesses, under the law, in that respect,” it was not intended to convoy the idea, that it was the duty of the notary to state “ every material fact ” constituting their
Suffice it to say, broadly, that the law does not make it the duty of notaries to state the qualifications of witnesses in tire sense of R. C. C. 1591; but it does make it their duty to state their qualifications in the sense of R. C. C. 1578.
III.
The recitals of the will are as follows, viz.: “ And the undersigned notary did write it” — the will — “ down, as dictated l)y said testatrix, in presence of said witnesses.” This statement fully answers plaintiff's second charge, and satisfies the law in this regard.
IV.
The recitals of the will are further to the effect that “ lecture of said will, as dictated and written, having been given hy the undersigned notary, in a loud and intelligible voice, to the said testatrix, in the presence of said witnesses,” etc,; and they answer the third charge, and likewise satisfy the law. The word “ lecture ” is to be understood in the sense of reading. That is file English of it.
V.
The will further recites that “ the whole was dono. * * in the presence of said witnesses, who have signed their names, with said testatrix, and me, said notary.” This recital sufficiently answers the plaintiff’s fourth charge, and, also, the law.
VI.
The plaintiff’s fifth charge against the will is, that it is signed hy Mary Grover, as testatrix, whilst the body of the act states'the testatrix to be Jiridyet Murray, wife of Georye Grorer, air entirely different, person, to all appearances.
The act states that, “ I, Alphonse Barnett., a notary public, did, at the request of Jiridyet Murray, wife of Georye Grorer, proceed to her residence * * where L found the said Mrs. Grorer * as slit appeared to me, notary, and the witnesses, * * and she requested me, notary, to receive her last will and testament as follows, to-wit: M,y name is Bridget. Murray * * I give and bequeath to my husband, Georye Grover, the whole of my property * T appoint said husband, George Grover, my testamentary executor, etc.”
From the foregoing recitals it is clear that “ Jiridyet Murray, wife of Georye Grorer, and Mrs. Grover,” are one and the same person. Then we have “ Jiridyet Murray” for the maiden name of the testatrix, and
This objection of plaintiff is not good.
VII.
The charge that the interlineation of the word Mary, before the word Bridget, on the first page of the act, was made after the signing and conclusion of the will is not borne out by a close inspection of the will, which is before us in the original. Preceding the commencement of the clause of the will, viz.: “ My name is, etc.,” there is an entire line left blank, and, in this space, the name “ Mary ” is clearly and distinctly written, and it does not bear the appearance suggested.
VIII.
The charge that the erasure of the name Robert, and the interlineation of the name Reuben, were not approved by the testatrix, and show two different persons, who appeared at different times, and of whom only one has signed his name is not borne out by the record.
In the beginning of the act the notary states that Mrs. Grover appeared to him “and the witnesses hereinafter named and undersigned;” and, at the conclusion, their names appear to have been originally stated to be “Robert T. Wheeler, Joseph Paillet and William S. Mackeybut the name Robert, in the original act apprears to have been subsequently erased and that of Reuben interlined. After stating the names and resi
“ The name of Robert erased and that of Reuben interlined, appd. before signing', the name of Mari/ interlined, also appd. before signing.” This affirmative declaration that this erasure and interlineation occurred before the signing is conclusive proof that the subsequent affixing of the testatrix’ signature to the will is an approval of it. Independent of the written declaration of the fact, the subsequent signing is a conclusive evidence of her approval.
IX. AND X.
These two charges are substantially embraced in and discussed under different, preceding paragraphs. The significance of these objections is that, in plaintiff’s view, the three witnesses who signed the act are not the same three witnesses who are mentioned in the act. 'i'his is merely a verbal criticism, or play on words, growing out of the erasure of the name Robert and the substitution and interlineation of Reuben therefor.
They are without merit.
XI.
The final charge is that all the legal requisites were not done at one time, and without turning aside to other acts.
It is a sacramental requirement of the notary that he shall make “express mention * * of the whole,” but not that he shall declare thut all those formalities had been “fulfilled at one time, and without turning aside to other acts.” R. C. C. 1578. His failure to make such a declaration in the will, is not a ground of nullity. 7 La., 599; 12 R. 639. That article only refers to the formalities which are therein mentioned. All of those formalities seem to have been fulfilled at one and the same time; and the act furnishes no proof that he turned aside to other acts. There is no evidence of his having- prepared any other act. This charge must share the fate of its predecessors.
A consciencious and pains-taking examination of the law and evidence appertaining to this case, has brought us to the conclusion that the judgment appealed from is erroneous and should be reversed.
It is therefore ordered and decreed, that the judgment appealed from be and the same is annulled and reversed; and it is now ordered and decreed that the demands of plaintiff and appellee be rejected at her cost in both courts.
