151 So. 190 | La. | 1933
Miss Susan Sullivan died January 17, 1931, leaving as her heirs certain nephews and nieces and grandnephews and grandnieces; and one of the nephews, W.P. Sullivan, was appointed administrator of the succession.
Mrs. Belle Friedman, one of the grandnieces, produced three documents purporting to be wills executed by the deceased, and asks that they be probated, the one or the other, according to the latest date.
Two of the documents are exact duplicate originals. They were both dated December 2, 1922, and were in nuncupative form by private act. The other was in the olographic form, and dated October 29, 1897.
In all three documents the proponent was named universal legatee.
The probate was opposed by the administrator on the ground that the documents were forgeries, and that they were not in the proper form for wills.
The only counter evidence is the testimony of the opponent, that the signature of his aunt is a forgery, and that of an expert witness who, with but a single standard before him in each case, declares that all the signatures to all the documents are forgeries.
With the documents before us for comparison and the ruling of the district judge to guide us, we think the evidence shows that the documents are all genuine, and not forgeries.
In the case before us there was no emergency; the testatrix was not seriously ill at the time, and in fact lived many years afterwards. She had had the will formally written out beforehand, with only the date and signature needed to complete it; and moreover there were several other persons present at the time in and around the house where the will was made, or nearby the premises and available as witnesses, had the testatrix chosen to call them as such. The conclusion is irresistible that the testatrix did not know that five witnesses were required for her will, and therefore called only three witnesses, thinking that these would suffice.
The probate of the document dated December 2, 1922, purporting to be the last will of the deceased in nuncupative form by private act, must therefore be set aside. *235
"Oct. 29, 1897.
"I Susan Sullivan agree with consent of parents to adopt this child, third child and girl (Jessie Belle Vanghan), of W.H. and Eva Vanghan, to give schooling board and clothing having control of child until grown. To live with me a lone maid to inherit atmy death every thing undisturbed as I leave it to a child ofblood, cattle horses hog chickens money land household goods and every earthly thing I possess. Signed by me and father and mother of child and witnesses. (Italics ours.)
"[Sgd.] Susan Sullivan
"[Sgd.] Eva L. Vanghan, W.H. Vanghan
"[Sgd.] Joe Shanks, O.S. Flynn."
This document, intended primarily for an act of adoption, was executed when the child, Jessie Belle Vanghan (now Mrs. Belle Friedman, the proponent), was about two years of age, and was lived up to by the parties according to its intent from the time it was executed up until the time of Miss Sullivan's death.
But as an act of adoption it availed nothing because it was not passed before a notary public. Act No. 31 of 1872, p. 79.
But though an act of adoption be invalid, as such, yet the donation contained in it, by making the child the universal heir of the donors to their property after death, gives the donee capacity to receive, independent of the adoption. Fuselier v. Masse et al.,
In this case the language of the alleged olographic document clearly institutes the proponent as universal legatee of the deceased, and any language is sufficient for that purpose if it clearly purports to be a gift mortis causa. Pena v. Cities of New Orleans Baltimore, 13 La. Ann. 86, 71 Am. Dec. 506; Succ. of Ehrenberg, 21 La. Ann. 280, 99 Am. Dec. 729.
As we have said, the evidence in the record is not sufficient to order the probate of the *237 said alleged olographic will; but we think that the appellee is entitled to a remand as prayed for.
O'NIELL, C.J., being absent during the argument, takes no part.