35 La. Ann. 394 | La. | 1883
Lead Opinion
The opinion of the Court was delivered by
Ou May 4,1875, Louis Miih made bis olographic will in due form, and died November 13, 1882. A notary placed seals upon his effects on the day of his death, and put a guardian over them. A few days after, this officer in the presence of witnesses removed the seals, and made search for a will, A bureau, secretary, and some trunks were searched without success. A table stood in the bedchamber of the deceased, the drawer of which was looked. This drawer bad also been sealed by the notary. The key broke in the effort to unlock it, and it was opened by a locksmith. In the drawor was found an envelope, superscribed—“ Ceci est mon Testament Olograph Pour étre ouvert aprés mon Décés,” underneath which was his signature with a paraph. This envelope had once been sealed with three wax seals. They had been broken.
The paper within was presented for probate as the will of the deceased. The proofs verbal of the notary recites all the particulars with lengthy detail; and among them that in the drawer were “ memorandums which indicate the making of a later will by said deceased.”
The will is written on a sheet of legal cap, the writing covering three pages and nearly half of the fourth. It commences thus :
“ Ceci est mon Testament Olograph. Jesonssignó Louis Miih sain de Corps ot D’Esprit,” etc,, etc. Then follows over twenty legacies, and a final distribution of the residuum of his estate among these legatees.
All of these legacies, except four, had been erased by drawing a line of ink through them, but the words can be read. The clause in which his executors are named is erased in like manner, and their names arc more obliterated than the other parts of that clause, the pen evidently beiug pressed harder and witli a more copious How of ink. The paper had been signed, and the signature is covered with ink, the erasing pen having been moved in several ways, aud witli various and different strokes, which extend over the paraph. A minute inspection reveals the name to those who know what it was already. Experts state on the trial they can see both the signature and the paraph through the superimposed ink. It would be difficult to blotch it more, but portions of the capital letters of the name appear when the eye has
The first legacy is to his former slave, William Epps, and is not erased. The other three unerased legacies are to his sister Elizabeth* and his niece Melanie, widow of Henri René, and another niece Eugenie Cocheteux. On the margin, outside the colored line on legal cap, and abreast each legacy to the nieces, is written with a paler ink, “filie de ma sceur Elisabeth,” manifestly written at a different time from the will, and as additionally descriptive of the person intended. A like marginal description is abreast the partially erased legacy to Eugenie Ducayet, the name “Jenny” being there written, and the unerased part of her legacy is his book case, “ ma Bibliothéque sans le con ten u.” These indicate unmistakably that when he was reading the will over with a view to make another, he revised it, and added these descriptive words to be put in the new will.
There is other and stronger internal evidence that his own hand made these erasures and blottings.
The only parts of the will, except these legacies, that are not erasod are the exordium as first above given, and the conclusion where he revokes all previous wills, disinherits any heir who shall attack his will, prays God to receive his soul, etc., etc., all of which remained because he wished to insert them in his new will, and the form of words was left intact to be copied. And finally the most significant marginal correction or addition occurs here. After Je prie Dieu d’agreer mon ame follows immediately au nom du pére, du fils, et du St. Esprit. He felt there was something lacking, and he wrote in the margin et du, scratched it, and then, ainsi soit-il .amen, making a X mark between the above two sentences to shew the place of insertion.
That his intention, was to annul the will, make if void and of no effect, cannot reasonably be. doubted. The painstaking and elaborate defacing and blotting out the signature was the act which, to his apprehension, destroyed it as a will. The obliteration of the names of the executors was almost as complete, but the legacies that were not intended to be repeated had simply an ink line drawn through them, and th'e sentences that were untouched received marginal additions as memoranda, or were left entire for use in copying.
It will be observed we have paid no attention to the testimony of the three women of his declarations touching his having revoked his will, because their testimony was objected to on the ground that it was parol (upon which we make no ruling) and for the better reason that, if admissible, it adds nothing to the force of the internal evidence of the paper itself.
It is contended that, whatever may have been the intention of the tes
“ It is simply making it impossible to produce and probate the destroyed or suppressed instrument, unless perchance parties in interest should procure secondary proof, sufficient for the purpose. Hence, testators usually resort to this mode of getting rid of—not of legally revoking their will.”
It is however correctly asserted that the intention to revoke may have existed, but if not legally effected, the instrument remains a will, and Hollingshead vs. Sturgis, 21 Ann. 450, is cited as establishing that a will was not revoked by another, subsequent in date, which latter was invalid for want of form, although the intention to revoke was energetically expressed in the later instrument. ' The doctrine is not ■new, and may be found in any of the books on Wills, and with a distinction therein drawn as to the purpose and effect of the act of revocation very pertinent to the matter in hand. Thus:
“ But if the testator revokes his will upon the mere general purpose of thereafter making another, it will not hinder the revocation becoming effectual because he dies without carrying such purpose of making a new into effect. Williams vs. Tyley, Johns Eng. Ch. 530. It is only where the testator revokes a former will, upon the supposition that he has executed a subsequent valid will, which proves invalid, that the act of revocation is held Incomplete. 1 Redfield on Wills, *308.
The Code declares that a revocation of a testament by the act of the testator may be express or tacit, general or particular. It is express when the testator has formally declared in writing that he revokes his will, or a particular disposition in it. It is tacit when it results from some other disposition of the testator, or from some act which supposes a change of will. Rev. Civ. Code, Art. 1691 (1684).
The meaning is plain. If the testator has made another disposition, repugnant to and inconsistent with the previous one, although nothing is said about revoking the former, a tacit revocation will thereby be made. So also if he has done any act which supposes a change of will, let that act be what it may, provided always the intention to revoke is fairly and legally deducible from it, a tacit revocation will result from the act.
■ With language so- unambiguous as the text of the Code before us,
By this reasoning it. follows,—when the Code enacts that a revocation of a will may be express or tacit, it means by express, a formal declaration in writing to that effect; and by tacit, a declaration still more formal, viz., a testamentary act.
A similar perversion of Art. 1589 (1582) is urged. By that Article erasures not approved by the testator are considered as not made, and it is insisted that this applies to the erased signature equally as to erased legacies. No particular method of approval is specified, nor does it seem essential that approval shall be indicated by writing, in which respect our Code differs from the English statute of Wills. ■There is no indication of the testator’s approval of the erasures other than the approval which erasure by his own hand manifests. But it is apparent the Article is not treating of the erasure of a signature to a will. The erasures, which are considered not made if not approved, are those which change or strike out parts or clauses of a paper recognised as an existing will, not that part, the erasure of which would destroy it as a will. Erasures of clauses in the body of the will affect only the dispositions erased. Erasure of the signature strikes at the existence of the instrument as a will.
The same Article further provides: if the erasures are so made as to render it impossible to distinguish the words covered by them, it shall be left to the discretion of the judge to declare if he considers them important, and in this case only to decree the nullity of the testament.
All the numerous counsel treat the adjective “important” as qualifying “ words.” On one side it is urged that the signature is a word, and since the judge has discretion to declare if he considers that word important, the erasure of the signature is not more significant than the erasure of an ordinary word. It would be remarkable indeed if the Code in any place had treated the signature to a will, even by implication, as a thing the importance of which varied with the discretion of judges, since it emphatically attaches so much importance to it that signing an olographic will cannot be dispensed with.
It is not the words that the judge must consider important, but the erasures, as is evident when we observe that only in the case of their
And thus erasures are recognised as one of the acts which will operate a revocation of a will. This might have been expected, since it is the law both in England and France, the two countries whose legislation and jurisprudence have moulded our own.
But it is argued that the contrary is the true interpretation, and in this wise. Before the adoption of the Napoleon Code, the provinces of France had different laws, and different customs which had the force of laws. Some of the provinces had the droit écrit—others the droit coutwmier. ■ The Napoleon Code produced a uniform law for the whole country. A voluminous jurisprudence was developed upon the subject of tacit revocation of wills, and there were conflicting opinions of commentators, approving or antagonizing the decisions of the Court of Cassation upon the revocation of wills by erasure, laceration, suppression, or destruction. These decisions were founded upon the Roman law, which had not been expressly repealed. Now, Art. 3521 of the Code of 1825 enacts that the Spanish, French and Roman laws, which were in force in this State formerly, are repealed and shall not be invoked as laws even under the pretence that their provisions are not contrary to that Code. Ergo all the French jurisprudence touching the revocation of wills by erasure, laceration, etc., is altogether inapplicable here, because our Code has not provided for the revocation of wills by such means.
' This is what logicians call petitio prineipii. The Code has provided for the tacit revocation of wills, and that provision is of the most enlarged and comprehensive kind, viz., by any act that denotes a change of intention. Of course, the acts are not specified. They could not be. They are as numerous and as varying as the diflerenfcircumstances under which men act on such occasions. The compilers of our Code were careful to omit even the classification of these kinds of acts into erasure, laceration, suppression, destruction, etc. Those clashing commentaries, in which jurisconsults had invented the most subtle distinctions, were before them, and they therefore formulated a general rule, leaving to courts, of necessity, to apply it to each particular case that fell within its scope.
How could it be otherwise 1 How could any community or people 'get on with, a law that declared the perpetuity of a will, unless revoked by an act as solemn as that by which it was made? That although a
The French authorities are full to repletion with discussions upon the revocation of wills by different acts, such as those heretofore mentioned. XIV Laurent, pp. 268, 271; Rogron, Art, 970; 2 Boileux, p. 335; 4 Marcadé, Art. 290; IX Duran ton, p. 471. As to the proof of laceration, etc., XIV Laurent, pp. 262, 265. One quotation only will be made, and that because it expresses what we have enforced above. Duranton writes : “ II y a invocation tacite lorsque de nouvelles dispositions, sans révoquer expressément les précédentes, sout néanmoins incompatibles avec ellos; on bien encore lorsqu’il resulte de certains faits généralement désignés par la loi, que le testateur n’a pas persévéré dans sa volonté de maiutenir ses premieres dispositions.” Tome IX, Art. 427.
The contention is that these French legists cannot be followed in interpreting our law, but the modern English decisions may be consulted, because “ the Louisiana departure from the French jurisprudence on revocation of wills has elicited the approbation of the British Parliament.” The statute of Wills was passed in 1838, and it is confidently asserted, “ under the adjudications of the English courts upon questions of actual and symbolical destruction of wills arising under that Act, the testament of Louis Miib with all its erasures would without diffculty be admitted to probate, precisely discarding the erasures.”
Here then we stand on solid ground, and to these decisions we will now resort.
In the recent case of Woodward in re, Lord Penzance placed the point of ascertaining the precise purpose of a testator in tearing, cutting,- or obliterating any particular portion of a will very clearly. The summary of the doctrine is, if such obliteration, etc., is confined to a particular bequest, the rest of the instrument remaining perfect, the natural conclusion might be reasonably clear, that all the will was intended to remain operative except the particular portion obliterated or defaced ; while on the other hand, if the burning, tearing, cutting, or obliteration is made upon an essential portion of the instrument, as the signature of the testator, or if made generally upon the body of the instrument without regard to any particular provision contained in it, the natural conclusion would be that the whole instrument was intended to be destroyed. 1 Redfield on Wills, *332, 56.
When there are erasures and interlineations on the face of a will, the presumption that they were made before execution does not arise as it does in the ease of deeds. The presumption is that these erasures,
■ A will was found in a wrapper (envelope) in the testator’s locked drawer with other papers, and had been cut in two pieces immediately above the signatures of the witnesses and of the testator, but both parts preserved, Sir Creswell Creswell said, “ I cannot come to the éonclusion that the deceased did not mean to revoke his will by thus cutting it.” Re Simpson, 5 Jur. N. S. 1366. Put erasure for cutting, and there is the present case.
Where the will was found with another testamentary disposition, but the place in which the names of the attesting witnesses should have appeared upon the latter was scratched over with a pen and ink, so that no letter of a name could be deciphered, it was hold that this paper was thereby revoked, and the will was admitted to probate alone. James in re, 7 Jur. N. S. 52. Where one had executed his will as a sealed instrument, and tore off the seal animo revoeandi, it was held a sufficient revocation, notwithstanding the statute did not require a seal. And this case was cited with approbation by Vice Chancellor Wood, a high authority, when he decided that a testator, having torn off the signature from the first four sheets of his will, and struck his pen through' the signature upon the remaining sheet, the animus revoeandi being established, it was a sufficient revocation. Williams vs. Tyley, Johns Eng. Ch. 530.
The rule in regard to presumptive revocations, from the mutilation of the will, seems to be that if the will is traced into the testator’s possession and custody and is there found mutilated in any of the modes pointed out by the statute, it will be presumed the testator mutilated it animo revoeandi. 1 Jarman on Wills, 124.
A case is cited in one of the briefs as Harris in re, 2 Law Rep. Prob. Div. 251, where a testator drew his pen through the lines of various parts of his will, wrote on the back of it “ this is revoked,” and threw it among a heap of waste papers in his sitting room. A servant took it up and put it on a table in the kitchen. It remained lying about in the kitchen till the testator’s death, seven or eight years afterwards, and was then found uninjured; held, that the will was not revoked, the words “ or otherwise destroying” in the statute not being satisfied, as, whatever the testator intended, the will had not been actually injured.
The American Courts, in this matter as in so many other of construction, have interpreted laws with an enlightened and liberal spirit, and have held in numerous -cases that any act defacing an existing will, done by the testator, derives its character solely from the intent with which it is done, and therefore when the testator has done an act. with the intention of revocation, and is deceived into the belief that he had destroyed his will, when in fact it was not destroyed, the act done shall have the effect of revocation. 1 Redfield on Wills, p. *318, 30, 31.
Finally, it is insisted that, even if the signature at the end of, or beneath the will, is obliterated, the Code does not prescribe where a will shall be signed, and as the testator wrote his name in the first sentence, and also signed the superscription on the envelope, these or either of them is a compliance with the requirement that an olographic will must be signed by the testator.
Signing a superscription on an envelope cannot be deemed a signing of the will, and as to the written name in the first sentence, unfortunately for the pretension, the testator wrote, I, the undersigned Louis Müh, etc., and the under signature was effaced and obliterated by commingled scratches, circles, and blotches of ink.
This effacement and obliteration as we see it in the original brought up with the record, was in our opinion done with the intent to revoke the will, and this intent should be given effect to by the Court. The lower court so held.
Judgment affirmed.
Rehearing
On Application for a Rehearing.
The brief on application for rehearing renews the arguments of those on the hearing, all of which had already been considered and answered, without throwing additional light upon the questions which we had discussed with elaboration, and decided only after a painstaking study of the whole subject.
■ The brief informs us that our quotation of an Article of the Code is correctly made from the Revi sal of 1870, but that a single word was excerpted- by the legislation of -the following years. As it does not
. We are also told that one of the authorities cited from the English courts antedates the statute of Victoria. If this be so, it does not detract from the force of the other English decisions cited, but it may not be amiss to say that the editions of Jarman and Redfield wo consulted are the latest (one of 187G and the other of 1831) and in their chapters on the Revocation of Wills, treating the law of England as it is at this moment under the statute of Victoria, that case is cited there as it is by us. It is scarcely credible that the latest editions of these standard works, one of them annotated by competent editors, should contain citations of cases inapplicable to the present state of the law in that country.
The rehearing is refused.
