14 So. 2d 749 | La. | 1943
Mrs. Emma Berthelot Wallis, widow of William W. Wallis, died in New Orleans leaving a will executed in olographic form, which was duly probated. The testatrix, after making four special bequests, closed her will with the following clause: "Regarding a Memorial hall or room and the residue of my estate I have given full instructions to Trist Wood whom I make executor of my Will."
The plaintiffs, as nearest of kin and the sole surviving heirs of Mrs. Wallis, filed a joint petition in which they prayed that the quoted clause of her will, except as to the appointment of the executor, be declared null and void for the reason that the clause fails to make any disposition of the residue of the estate and is violative of the provisions of the Civil Code governing last wills and testaments, "in that it would not be carrying out the last wishes of the decedent but instead would be instituting the will and judgment of the executor." *876
On the trial of the case, it was admitted that only verbal instructions were given to the executor by the testatrix relative to the memorial hall or room and the residue of her estate. The judge of the district court rendered judgment in favor of plaintiffs, declaring the disputed clause of the will, except as to the appointment of the executor, to be null, void, and of no effect. The executor has appealed from the judgment.
The law on which plaintiffs in this case rely is to be found in Articles
Article
Testamentary dispositions can be made only in writing, in the form and manner prescribed by law for last wills and testaments. Articles
In the Succession of Burke, 51 La.Ann. 538, 25 So. 387, the clause in the will, which it was claimed violated Article
The clause above quoted was contested on the ground, among others, that it was meaningless and in direct contravention of the prohibitory provisions of the law, and must be reputed as not written. The executors of the will were the only defendants. They contended that the disputed clause was a bequest to a charitable institution to be selected by them, and they relied upon Act No. 124 of 1882, legalizing donations to trustees for charitable, educational or literary institutions, whether already existing or to be organized by the trustees. The district court, as well as this Court, recognized that the disputed clause was not a bequest at all, but was only a suggestion or request to the executors to use the residue of the estate for some charitable purpose to perpetuate the memory of the testatrix. It was said in the opinion of this Court that "the testatrix did not designate any one as her residuary legatee, but left the selection of the legatee to the choice of her executors. This she could not validly do." *878
A will containing a clause very similar in its aspect to the one in the will of Mrs. Honoria Burke Ringrose was that of Mrs. Alice B. McCloskey, which was considered by this Court, in Succession of McCloskey, 52 La.Ann. 1122, 27 So. 705, 706. The clause in. Mrs. McCloskey's will, which was pronounced invalid, read as follows:
"And my trustees shall hold the residue of moneys forming portion or arising from the sale, calling in, collection, and conversion of my American property in trust to apply such an amount as they shall think fit in the erection of a stained-glass memorial window in St. Patrick's Church, Donegall street, Belfast, in memory of the late Rev'd Michael Cahill, C.C., formerly of St. Patrick's Church aforesaid, and in trust to pay and apply any surplus of the said such residue for such charitable uses and purposes in Ireland as they in their discretion shall think fit. * * * and in case any of the charitable or other legacies hereinbefore bequeathed, or of which I shall bequeath by any codicil to this my will, shall be or become void at law, or shall otherwise lapse or fail to take effect, then I bequeath all such legacies which shall be or become void unto my said trustees absolutely, and direct that all such legacies as shall lapse or fail to take effect shall form part of my residuary estate."
The Court declared that such an indefinite disposition to trustees in trust for an indefinite charitable purpose was void and that the legacy was not saved by the provisions of Act No. 124 of 1882. The Court invoked the doctrine prohibiting wills by proxy, remarking: *879
"It is equally obvious that this is not a valid disposition by will under our law. The institution of heir or other testamentary disposition, committed to the choice of a third person, is null by the express language of the law. Civ. Code, art.
It will be observed that the testatrix does not set forth the kind or character of memorial hall or room that she desires to be erected. She leaves that entirely to her executor to whom she declares that she has given full instructions relative thereto. Those instructions admittedly were not in writing. It is obvious that this is not a legal testamentary disposition under the laws of this State. Furthermore, the testatrix did not designate any residuary legatee, but left the disposition of the residue of her estate solely to the discretion of her executor, limited only by such verbal instructions as she may have given him. It is equally obvious that this is not a valid disposition by will under our law. The institution of an heir or other testamentary disposition committed to the choice of a third person is null by express language of the law. Succession of Burke, 51 La.Ann. 538, 25 So. 387; Succession of McCloskey, 52 La.Ann. 1122, 27 So. 705.
The judgment appealed from annulled the disputed clause of the will except as to the appointment of the executor. The judgment is correct.
For the reasons assigned, the judgment appealed from is affirmed; costs of this proceeding to be borne by the succession. *881