167 So. 444 | La. | 1936
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *794 Mrs. Bernadina Albers Purkert died leaving an estate, of both real and personal property, appraised at $30,991.18. Her heirs at law are a nephew and two nieces. They are the son and daughters of a deceased brother of Mrs. Purkert. She left a nuncupative will, by public act, written by Emanuel L. Weil, notary public, in the presence of three witnesses, of date the *795 17th day of December, 1918. The testatrix left several small cash legacies to individuals who were related to her by marriage, and a legacy of $200 to her church, and directed that a sum not exceeding $1,000 should be spent for a tomb. She did not bequeath anything to the son or daughters of her brother, but bequeathed $5,000 to him. He died, however, before the testatrix died. As to the balance of her estate, the testatrix declared in her will:
"Balance of my estate after paying all debts to go to my executor, to be given by him to any charities he may select, after giving to Jerry Schultz and Charles Thompson, both of this city, the sum of Two hundred ($200.00) each. Schultz now lives on Louisa near Rampart street; and Thompson used to live on Royal street near Elmira street.
"I hereby name and appoint my friend Emanuel L. Weil, of this city, Executor of this my last will and testament, with seizen and without bond."
Emanuel L. Weil, who was named as executor, is the notary public who wrote the will. He qualified as executor and filed a detailed account, on which he listed the privileged claims and the special legacies, and showed a balance of $26,102.36 belonging to the estate. The executor did not then claim that this residuum, of $26,102.36, belonged to him, as residuary legatee, or suggest what disposition was to be made of it.
The nephew and the two nieces of Mrs. Purkert brought this suit against the executor to have the residuary clause in the will *796 decreed null, and to be sent into possession of the residuum of the estate, as the heirs of the deceased, in the proportion of one-third to each of them, on payment of the inheritance tax and subject to the payment of any unpaid debts or special legacies.
The plaintiffs, as heirs of Mrs. Purkert, did not complain of the two special legacies, of $200 each, given to Jerry Schultz and Charles Thompson, or complain of any other of the special legacies, but averred that the residuary clause was null and of no effect, viz.:
"Balance of my estate after paying all debts to go to my executor, to be given by him to any charities he may select."
The executor, in his capacity as executor, filed an exception of no cause or right of action. The judge, after hearing argument on the exception, overruled it. The executor excepted to the ruling, and, with reservation of his exception, and again in his capacity as executor, answered the petition. He averred that the will spoke for itself; and he denied that the residuary clause was null.
The only evidence introduced by the plaintiffs on the trial of the case was the proof that they were the heirs at law of the deceased and that the executor was the same Emanuel L. Weil who officiated as notary public in making the will. No objection was made to such proof. The executor introduced in evidence only the will itself. The judge decided that the residuary clause, "Balance of my estate after paying all debts to go to my executor, to be given by him to any charities he may *797 select," was null, and ordered the plaintiffs sent into possession of the residuum of the estate, as the heirs of Mrs. Purkert, on payment of the inheritance tax and subject to the payment of any unpaid debts or special legacies. The executor has appealed from the decision.
The judge was right in overruling the exception of no cause or right of action. If the plaintiffs had sued to annul the residuary clause in the will for a reason or cause not shown in the will itself, the plaintiffs would have been obliged, in order to set forth a cause of action, to state the reason or cause for which they contended that the residuary clause should be annulled; because, without an allegation of nullity dehors the will itself, evidence of such a nullity would not be admissible. But the plaintiffs in this case contended — and depended upon their contention — that the residuary clause in the will was intrinsically null; hence they needed no proof dehors the will itself to show the nullity of the residuary clause, if in fact it was null on its face. The plaintiffs were not obliged to cite, in their petition, the law governing the case. The executor's exception of no cause or right of action, necessarily, tendered the issue as to whether the alleged nullity of the residuary clause in the will was apparent on the face of the instrument. The hearing and disposition of the exception, necessarily, informed the defendant, executor, if he was not already aware of the law which the plaintiffs were relying upon. There is no reason why the plaintiffs should have been ordered to amend their petition or supplement their allegations in that respect. *798
Counsel for the executor cite the Succession of Hernandez,
The law which the plaintiffs in this case had reference to in their allegation that the residuary clause in the will was null is article
"The custom of willing by testament, by the intervention of a commissary or attorney in fact is abolished.
"Thus the institution of heir and all other testamentary dispositions committed to the choice of a third person are null, even should that choice have been limited to a *800 certain number of persons designated by the testator."
If the residuary clause in this will is null because the selection of the legatee or legatees is committed to the choice of the testamentary executor, the nullity appears on the face of the instrument. If the residuary clause should be construed so as to make the executor, individually and in his own right, the residuary or universal legatee, the fact that he officiated as notary public in the making of the will also appears on the face of the instrument; and, if the residuary clause is therefore null, for want of the formalities required for a nuncupative will by public act, that nullity also appears on the face of the instrument.
The plaintiffs, who are the only persons who have any interest in questioning, or right to question, the validity of the will, do not complain of any of the testamentary dispositions except the residuary clause; which the plaintiffs contend is absolutely null, whether construed as an indefinite bequest to charities to be selected by the executor or as a bequest to the notary public who officiated in the making of the will.
The executor contends that the intention of the testatrix, as expressed in the residuary clause in her will, was to make him, Emanuel L. Weil, individually, the universal or residuary legatee, and to leave it to him to say whether he would keep the legacy for himself or give it to such charities as he might select. Aside from the question whether this residuary clause would be null if construed as a bequest *801
to the individual who officiated as notary public in the making of the will, it is very doubtful whether the testatrix intended to make Emanuel L. Weil her residuary legatee. There is much plausibility in the plaintiffs' contention that what the testatrix intended and attempted to do was to require that her executor should give the residuum of her estate to charities, instead of allowing it to go to her heirs at law, leaving to the executor merely the choice of selecting the charities to be benefited by the legacy. It is possible that the testatrix did not understand that such a testamentary disposition might be construed as giving the legacy to the executor, for his own individual use and benefit. The testatrix did not say that she bequeathed or gave the balance of her estate to her executor or to Emanuel L. Weil. She said that the balance of her estate was to go to her executor to be given by him to charities. The expression "to go to," in a will, means the same thing as "I bequeath to," if the bequest is made without any condition or stipulation as to the purpose for which the legacy is "to go to" the legatee. Succession of McBurney,
"Now, after these bequests have been made, the remainder of my estate I desire my executors to use for any charitable institution they may select, or think of benefiting, to perpetuate my memory."
That clause was decreed null. The court interpreted it thus:
"The testatrix did not designate any one as her residuary legatee, but left the choice of the legatee to her executors. This she could not validly do."
That decision and others to the same effect were cited with approval in the Succession of Reilly,
"And the balance of whatever I may die possessed of I give and bequeath unto Bishop Thomas Heslin, to be distributed as he sees fit among my people in Ireland and for the further education of Thomas Regan, hereby instituting Bishop Heslin my sole heir and universal legatee."
The testator, in that case, declared that he did "give and bequeath" the legacy to *804 Bishop Heslin, and confirmed the bequest by saying that he instituted Bishop Heslin his sole heir and universal legatee. The conclusion, therefore, was inescapable that the testator intended to vest the title to the legacy in Bishop Heslin, and to depend upon his distributing or using it as the testator directed.
For the reasons which we have given, it does not seem likely, in this case, that either the testatrix or the notary public who wrote her will had in mind, at the time, that the residuary clause would have the effect of instituting the notary public as the sole heir and universal legatee. It is not necessary, however, to decide that question, because, if the intention of the testatrix was to give the residue of her estate to charities, the residuary clause in her will is null under the provisions of article
Counsel for the executor cite article
Counsel for the executor in this case say in their brief that, if Mrs. Purkert did not leave the residue of her estate to Emanuel L. Weil, with the expression of a desire that he should use it for charitable purposes, then she left the residue of her estate to him in trust for charitable purposes; and that, under that interpretation, the residuary clause in the will would be valid as a donation to a trustee for charitable purposes, under the provisions of Act No.
"We think, on the contrary, the testatrix intended to charge her executors with the single specific duty of making the selection of a residuary legatee, and that upon the performance of this precise duty their power over the whole matter would be exhausted. We are of the opinion that the disposition and control of this fund by this selected institution after it would be placed in its hands, would be in virtue of ownership, not trusteeship. * * *
"We do not think the bequest in question falls under the provisions of Act No.
"The right and duty of making this choice [of a legatee] were evidently personal to the three particular persons named. Not only could these not be delegated by them to others, nor exercised by parties to be substituted in their place should they refuse to perform the duty, but there would be no legal means of forcing them into making a selection [of a legatee] in the event they were unwilling to do so, or were unable to agree upon a choice."
And so in this case there would be no legal means of forcing the executor to select a residuary legatee, or beneficiary of the legacy. To call him a trustee, instead of an executor, would not change the substance or character of the residuary clause *810 in the will. The executor would yet be the universal or residuary legatee, who is the notary public who wrote the will.
It is said in the brief of the executor that it is certain that Mrs. Purkert did not intend that her nephew and nieces, who are the plaintiffs in this suit, should receive any part of her estate. But it is true in every case, where an heir sues to annul a will, that the testator intended that his will should prevail. The heir in such a case does not claim under the will but by virtue of his right of inheritance.
The judgment is affirmed.
LAND, J., concurs in the result.
FOURNET, J., concurs and hands down reasons.
Concurrence Opinion
A notary public who receives a will not only acts as a public official authorized to perform this serious and important duty but also acts as a witness to the will. In other words, this court has held that, where a nuncupative will by public act is invalid, because of want of proper form, the notary is considered as a witness, so as to give it effect as a nuncupative will by private act. In short, the notary public not only has the status of an official executing a will in the form of an authentic act, which *811 under the law proves itself, but, having been present and signed the will, he is also considered as a witness to it. The two qualities are inherent in him and cannot be separated. Since he was present when the will was executed and signed it, he does everything that the law requires of an ordinary witness. He therefore appears in a dual capacity — as a public official discharging his duty and as a witness to the testament.
A testator, who wishes to make a will, consults with a notary public for the purpose of being advised and directed as to how to make a valid will. It is obvious that, if he is permitted to name himself as a legatee in the will, his interest immediately places him in a position where he is not free from partiality. His interest might well be adverse to that of a testator under such circumstances. While it is true that a notary public, under the law, must write down the will as it is dictated by the testator, he certainly cannot perform that serious and responsible duty with the same freedom from prejudice to the interest of the testator and the other legatees as if he had no adverse interest. It may be that, in a most technical sense, he is not a party to the instrument, in that the law gives the testator the right to control the dictation of his will as well as its revocation. But under the law the notary can suggest the verbiage to his uninformed client. The mere statement of the proposition shows that such a practice would open the door for imposition, deception, and fraud. The lawmaker never contemplated that a notary who writes the will for his client would *812 have the capacity to be a legatee therein, whereas a witness, who merely sits by and observes the making of the will and signs it, is denied that capacity, because the law seeks to guarantee to the testator absolute freedom in the disposition of his property, except as to forced heirs. The old Biblical expression to the effect that one cannot serve two masters is apropos. It would not only be bad practice but unwise public policy to permit a notary public to do what was attempted in this case, i.e., to be the officer officiating, possessing the qualities of a witness, and the universal legatee under the will.
For the above reasons I concur in the decree affirming the judgment of the lower court.
Addendum
My views are in accord with the reasons assigned in the majority and concurring opinions.