Woodfork v. SandersWoodfork v. Sanders
- Reporters:
- Before:
- Redmann, Stoulig, Boutall
Plaintiff, the universal legatee under a will a trial court held formally invalid, appeals from the dismissal, on exceрtion of no cause of action, of his damage suit against the testator‘s attorney who prepared the will.
The substance of plaintiff‘s petition (as amended) is that plaintiff (whom defendant represented in another matter) brought the would-be testator to defendant to have a will exеcuted, in accord with testator‘s wishes, naming plaintiff universal legatee. Defendant, “a licensed attorney at law“, prepared the will in attempted compliance
Defendant‘s exception was based, essentially, on lack of attorney-client privity, and on the theory that defendant acted as a Notary Public, rather than as an attоrney at law, in the confection of the will.
On our own motion, we requested both parties to brief the question of the will‘s formal validity and have had the benefit of able argument.
Because we hold the will formally valid and because the petition states only the will‘s invalidity as the cause of the loss of the estate, we affirm on those grounds the judgment maintaining the exception of no cause of action, although we grant leave to amend. We will not discuss the issues raised by defendant on the exception except in connection with leave to amend.
Validity of the Will
Insofar as concerns testator‘s succession and the heirs in whose favor this will was adjudged invalid, that judgment has apparently become final for lack of a timely appeal; Succession of Mallary, 220 La. 825, 57 So.2d 737 (1952).
But that judgment does not bind defendant, who was in no way a party to that proceeding, not even as counsel. (Plaintiff was then represented by present counsel.) The authority of the thing adjudged affects only the parties;
Therefore we examine the question of the will‘s formal validity just as if we were ruling on the will itself.
The statutory will form is authorized by
We first note that
“In addition to the methods provided in the Louisiana Civil Code, a will shall be valid if in writing * * * signed by the testator in the presence of a notary public and two witnesses in the following manner: * * *”
“Except as provided in
R.S. 9:2442 with respect to a testator who is physically unable to sign his name, those who know not how or are not able to sign their names, and those who know not how or are not able to read, cannot make dispositions in the form of the will provided for inR.S. 9:2442 , nor be attesting witnesses thereto.” (Emphasis added.)
Our initial impression of the intent of
Nevertheless we find that in Succession of Hackett, 187 So.2d 485 (La.App. 1966), counsel for the defendant in an attack on a trust under will apparently conceded (on facts in fact occurring prior to the 1964 amendment of
“In the course of oral argument before this court, counsel for the defendant, Richard
Alexander Hackett, dramatically informed us thаt one of the witnesses to Mrs. Hackett‘s testament was also a named legatee therein, thereby rendering the will invalid.1 “Respective counsel failed to notice this fact during the trial in the lower court. The briefs which were submitted to us on appeal did not even allude to this error. Defendant‘s counsel discovered the invalidity the night before the case was fixed for argument here.”
The court apparently accepted the defendant‘s concession that the statutory will, which defendant sought to uphold, would be invalid if a witness were also a legatee. We remanded to the trial court “in order that evidence may be adduced therein to prove the identity of the legatee and the said witness, and thereafter to determine the validity of the will“.
We also find that our Supreme Court in obiter dictum in Succession of Eck, 233 La. 764, 98 So.2d 181, 185 (1957), suggested
“* * * There are no provisions in Act 66 of 1952, LSA-R.S. 9:2442, with respect to who may witness a will drawn under its provisions. Under such circumstances, the substantive law of Louisiana applies. Mrs. Micas did not fall within any of the incapacities set forth in the Revised Civil Code. LSA-C.C. arts. 1591, 1592.”
Since the 1964 amendment of
Civil Code Book III, Title II, chap. 6, sec. 2, “General Rulеs on the Form of Testaments,”
“Art. 1591. The following persons are absolutely incapable of being witnesses to testaments:
“1. Children who have not obtained the age of sixteen years complete.
“2. Persons insane, deaf, dumb or blind.
“3. Persons whom the criminal laws declare incapable of exercising civil functions.
“4. Married women to the wills of their husbands.
“Art. 1592. Neither can testaments be witnessed by those who are constituted heirs or named legatees, under whatsoever title it may be.
“Art. 1593. Mystic testaments are excepted from the preceding article.
“Art. 1595. The formalities, to which testaments are subjeсt by the provisions of the present section, must be observed; otherwise the testaments are null and void.”
The importance of
However, the wording of
But the language of
As a minimum, it appears that
Apart from reliance on Eck and Hackett (the facts of which pre-dated the 1964 witness disqualification provisions of
Defendant argues excluding
Thus, just as
Still, reasoning that
In adopting
Defendant has furnished us an elaborate history of will witness requirements, beginning with the pre-Justinian Roman Law‘s testamentum per oes et libram, a form of “sale” by mancipatio from testator to heir in the presence of seven witnesses.
We have about-faced from that position, where the heir‘s presence was indispensable, through an interesting course of development, to the point where the Code Napoleon, art. 975, disqualified, as attesting witnеsses to a will by public act, not only the legatees but also their relatives by blood or affinity through the fourth degree. (Interestingly, we nowhere find a prohibition against the legatee‘s presence at the execution of the will.)
Louisiana added, in its Digest of 1808, a nuncupative form of will by private act, unknown to the Code Napoleon, presumably because of the extreme scarcity of notaries in early Louisiana. Accordingly the Code Napoleon‘s prohibition against legatees (and their relatives) being witnesses to a “testament by public act” became a flat prohibition against legatee-witnesses to “testaments“, Digest 1808, p. 232, art. 106. When the 1825 Civil Code was adopted, its art. 1586 enacted today‘s
Indisputably, neither
Courts have no authority to impose additional formalities on statutory wills and thus deny the power of testation to citizens who have complied with the Legislature‘s requirements. Succession of Suarez, 219 So.2d 1 (La.App. 1969), cert. denied, 253 La. 1090, 221 So.2d 520. Despite the statute-provided sample attestation clause having blanks for day, month and year (one would suppose, to be filled in), our Supreme Court has upheld the validity of an incompletely dated statutory will; Succession of Gordon, 257 La. 1086, 245 So.2d 319 (1971). Although there was no majority opinion (three justices concurring, one dissenting and one recused), it seems fair to cite Gordon as supportive of the view that the statutory will “shall be valid” unless an explicit requirement of
We so hold. The will confected under defendant attorney‘s supervision was valid.
Accordingly plaintiff has not stated a cause of action for the loss of the estate against defendant, whose advice as attorney, however, questionable in this instance, at least did not cause the will to be invalid and did not by itself cause plaintiff to lose the estate (much less its gross value, as sued for).
Mere failure to state a cause of action does not mean failure to have a cause of action. Unless one of the other grounds of exception urged by defendant is valid, we would therefore allow plaintiff leave to amend his petition,
Defendant‘s objeсtion that, if he is liable, he is liable only as notary apparently misconceives himself as several persons. The petition alleges testator went to defendant as a lawyer for legal advice and assistance in confecting a will. If defendant additionally undertook to act as a notary, the petition nowhere alleges that (and we are unable to conceive circumstances under which) defendant at some stage ceased to act as attorney at law. Accordingly failure to allege acts “as notary” is not a defect.
Defendant‘s seсond ground of exception, lack of attorney-client privity between himself and plaintiff, is likewise rejected. The testator sought defendant‘s professional legal assistance in order to benefit plaintiff, the intended universal legatee. We believe the stipulation that a lawyer is tо confect a will to institute third parties legatees is a stipulation pour autrui,
Finally, because the lawyer‘s error must be one that the exercise of reasonable competence would have avoided, we note that defendant‘s error in using a legatee as witness may have been such an error. Presumably evidence from оther practitioners will add light on this question. We here say only that the fact the error did not invalidate the will and thus did not by itself cause all plaintiff‘s damage means neither that it was not a culpable error nor that it did not cause damage.
Therefore plaintiff may be able to amend his petition tо state some cause of action against this defendant.
The judgment appealed from, maintaining the exception of no cause of action, is accordingly amended to grant leave to amend within a delay to be set by the district court, and as amended is affirmed; and this matter is rеmanded for further proceedings not inconsistent with this opinion.
Affirmed as amended and remanded.