Verdun's Heirs v. Verdun's

15 La. 28 | La. | 1840

Simon, J.,

delivered the opinion of the court.

This is am action instituted by the legal heirs of one Alexander Verdun, for the purpose of annulling a certain instrument, purporting to be his last will and testament, made in the form of a-nuncupative testament, by public act. Several grounds are alleged in the petition, for which the plaintiffs contend that the testament ought to be declared null and void, and among others, that it does not appear that the testament was dictated by the testator, that it was written by the notary ; and that no mention is made, that it was written by the notary as it was dictated by the testator. The parts of the will relative to the legal formalities, are as follows :

gilité des choses humaines et de la vie, et voulant en outre mettre ordre U ses affaires en cas que son creatéur le rappéle h lui “ Pardevant, fyc., est comparu, fyc. Lequel etant sain de corps et d’esprit ainsi qu’il nous a paru mais bien persuadí de la fradeclare en presence des sieurs Joseph Délaporte et Auguste H. ‡ 1 * ° Verret et Henry C. Thibodeaux témoins domicilies et requis U ce^e effeh son testament et act de derni'ere volanté, ainsi qu’il suit; savoir.” And, at the close : “ Ce testament en tí été dicté a moi dit juge en préseme des témoins ci-dessus nommés soussignés et l’ayant lu au testateur tt haute et intelligible voix en préseme ges y^es témoins il tt déclaré parfaitement comprendre et y persé- * J r a r vérer. En foi de quoi le dit compar ant a signé, fyc.”

It is perfectly clear, that the will attacked in this suit is not clothed with the legal formalities necessary to make it valid ; it contains no mention of its having been dictated by the testator to and written by the notary, and written by the notary as dictated by the testator. We are, therefore, of opinion, that the district judge did not erf in invalidating said will, as it suffices that if a testament be defective in one of the legal requisites to be invalidated,.it becomes unnecessary to examine the other grounds of nullity.

gu| it is contended, that if this testament be null as a . ' nuncupative will by public act, it is good as one under private signature. It is true, that this last kind of testaments are not su'3ject to the same strictness of formality as those by public act; and that it. does not matter whether the testator intended to make his will in a particular form, if it be good in one of the forms prescribed by law. Louisiana Code, article 1574, 1575 and 1583. But in order to make a valid testament under private signature, it is necessary that it should be received by five witnesses ; unless, the testament being made in the country, a greater number than three witnesses cannot be procured. Louisiana Code, article 1576. In this case, it does not appear that more than three witnesses could not be had, and it is not even shown that any attempt was made to get more witnesses than the number required for a nuncupative will by public act. 1 Martin, N. S. 488.

We think that the testament of A. Verdun, is also void as a nuncupative will under private signature, and that the district judge did not err in giving judgment in favor of the plaintiffs.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.