Vidal's Heirs v. Duplantier

7 La. 37 | La. | 1834

Bullard, J.,

delivered the opinion of the Court.

The plaintiffs allege, that they are the instituted heirs of Nicolas Maria Vidal, and sue to recover the title papers of certain tracts of land, amounting in all to sixteen thousand arpents, which they aver, the defendant unlawfully withholds from them.

The defendant specially denies, that the plaintiffs are the children and heirs of Vidal, under whom they claim, or that they are entitled to any rights as such, by testament or otherwise. He further sets up title to the land, under a judicial sale, made by Grandpré, military and political governor of Baton Rouge, under authority derived from Don Vicente Folch y Juan, governor of West Florida, in the course of the administration of the e.state of Vidal.

The plaintiffs, in support of their pretensions, gave in evidence a document, purporting to be the • testament of Vidal, dated in 1798; and an order or judgment of the Court of Probates, for the parish of East Baton Rouge, that the petitioners be recognised as universal legatees of Vidal, for the sixteen thousand arpents of land, bequeathed by the will, and authorising them to exercise all the rights of ownership to the same. The judgment was rendered on the 27th of July, 1827, in a proceeding to which it is not pretended the present defendant was a party.'

As the plaintiffs claim only as natural colored children and instituted heirs, and do not pretend to be the heirs at law, our first inquiry is in relation to the testament, which forms the basis of their pretensions. On a careful examination of the copy in the record, certified by a notary public, it does not appear to have been signed either by the testator or the witness whose names are mentioned in the body of it. The certificate of the notary, before whom the testament purports to have been made, is in the following words: “ To, el escribano, doyfé, conozco al señor Ortogante, que está, al parecer en su entero juicio, memoria y entendimiento natural, y lo firmé, siendo testigos él señor don Gilberto Leonardo, contador interino de exto. y real hacienda; don José Maria de la Barba, ministro interventor; y don José Maria de Peña. Ante mi, Pedro Pedescldux, not. público.”

It is not so clear from the copy, whether the words, used be lofirmé, I signed it, or lo firmó, he signed it; nor does it appear material, in as much as the signature of the testator does not appear, nor that of either' of the witnesses.

The Spanish an^nthspensabie solemnity, to the validity of a testament or will, signedShbyldthe testator and witnesses,orbysome one of the witSmm atTéast °r h&libensealed5 that according to the Spanish law itisnotabsoiutetim^diSty^ofa qyired soiemnipear on the face mentlSeif^but tllat some appabe cured,'orsupment was offered for Probate. In a petitoryaction, ^ when the'plaintiffs fail to show title in themselves, it will not he deemed necessary to inquire into tiie validity of the proceedings in pursuance of which tiie property was sold to the defendant.

The Spanish law required as an indispensable solemnity, that the testament should be signed by the testator and witnesses, or by some one of the witnesses for him or them at least. Febrero, part. 1, chap. 2, sec. 1, Nos. 10 and 12.

' This Court recognised on one occasion, the principle, that according to the Spanish law, it was not absolutely necessary for the validity of a testament, that all the required solemni- • tit , , -ic mi ties should appear on the face of the testament itself. 1 hat there may be cases, in which some apparent defects might be cured, and supplied by proof, when the testament should be , ., , . . offered for proof before the proper tribunal, we do not question, But in this case, it does not appear that the testament was ever recognised as such by judicial authority, and ordered tobe executed. The proceedings had before the Court of Probates, for the parish of East Baton Rouge, more than twenty years ,ii -i , after the death of the testator, does not purport tobe a probate of the will, and an order for its execution. No notice is taken of the executors appointed. The supposed will directs the residue of the estate, if any thing should remain to be inherited, to be delivered in equal portions to four natural colored children, of whom the plaintiffs are two. It appoints J. ’ B. Labatut and Christoval de Armas, testamentary executors, with full authority to take possession of the whole property, and pay the debts of the testator; and the period of executorship is prolonged beyond the regular period for that . purpose.

The plaintiffs having failed to show any title in themselves, it is unnecessary to inquire into the validity of the procedings of the Spanish tribunal, in pursuance of which the land was sold as the property of the deceased Vidal; for it is clear that if the plaintiffs do not take under the will, they are without rights in as much as they are not the heirs at law.

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