McGuffin v. Jones

157 So. 2d 256, 1963 La. App. LEXIS 1961
CourtLouisiana Court of Appeal
DecidedOctober 30, 1963
DocketNo. 939
StatusPublished
Cited by2 cases

This text of 157 So. 2d 256 (McGuffin v. Jones) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McGuffin v. Jones, 157 So. 2d 256, 1963 La. App. LEXIS 1961 (La. Ct. App. 1963).

Opinion

HOOD, Judge.

A document purporting to be the last will and testament of Lowery Fornie Jones, deceased, was probated in the district court on March 23, 1962. In that will the testator named his brother, Claud Jones, as his universal legatee. Shortly after the will had been probated, this suit was instituted by certain nieces and nephews of the decedent against Claud Jones, seeking to annul the will on the grounds, first, that the testator was mentally incapacitated and, sec[257]*257ond, that the will was null and void for the reason that it had not been signed by the testator. Plaintiffs abandoned their first ground for attacking the will, so the sole issue presented in the trial court, and the only issue presented on this appeal, is whether the will is void as being fatally defective as to form, in that it was not signed by the testator.

The trial judge concluded that the will had been signed by the testator, and accordingly, that it was a valid will. Judgment was rendered in favor of defendant, rejecting the demands of plaintiffs, and plaintiffs have appealed.

The will which is being attacked in this suit was written by the testator, Lowery Fornie Jones, on one side of one sheet of ruled white notebook paper. It reads as follows :

“Feb. 18-1952
“I am writing my will, of my personal belonging and real estate
At my death my brother Claud Jones, gets my personal and real estate property,
the courthouse record shows as Larry Jones, same as
“Lowery Fornie Jones”

All parties agreed that the complete will, including the date at the beginning and the full name of the testator appearing at the end of it, was entirely written by the hand of the testator. The only question raised here is whether the testator, in writing his name at the end of this document, must be considered as having signed the will, as required by Article 1588 of the LSA-R'e-vised Civil Code.

Plaintiffs contend that an olographic will is fatally defective as to form if the testator fails to affix his signature at the end of it following the completion of all dispositions and recitations in it, that the name “Lowery Fornie Jones” appearing at the end of the will being contested here is merely a part of a recitation or provision of that will, and accordingly, that the will is void for the reason that the testator failed to sign it following the completion of all provisions of such will. Defendant, on the other hand, contends that the testator’s act in writing his name at the end of the will, centered on the page, on a separate line, and set apart by him to indicate that he was clothing it with a significance beyond a mere place in a sentence, clearly shows that he intended for it to attest to the validity of the will, and thus it constitutes a signing of the will as required by law.

The only statutory requirement in our law that an olographic will must be signed by the testator is that contained in Article 1588 of the LSA-Revised Civil Code, which provides that such a will “must be entirely written, dated and signed by the hand of the testator.”

In the case of In re Armant’s Will, 43 La.Ann. 310, 9 So. 50, the will there in conflict was held to be fatally defective as to form because of the failure of the testatrix to affix her signature at the end of the testament. In that case the only writing of the name of the testatrix was in the caption, written in French, at the beginning of the document, which read, “Testament d’Aglae Armant.” There was no signature at the end of the will, and the name of the testatrix did not appear at any other place in that document. Our Supreme Court held that the French interpretation of the law relating to olographic wills should be applied, and it concluded:

“ * * * Thus, under French jurisprudence, this will would fall for two reasons: (1) Because the writing of the name, was not intended as a signature) (2) because, whether so intended or not, the signature was not at the end of the act. * * * ” (Emphasis added).

The will at issue in In re Poland’s Estate, 137 La. 219, 68 So. 415, was found in a sealed envelope, bearing the superscription, “The Will of Ellen E. Poland, Morrow, [258]*258La.” The document inside that envelope began with the words, “The Will of Ellen E. Poland I made this my will and testament * * but there was no signature at the end of that instrument. Both the purported will and the superscription on the envelope in which it was found were in the handwriting of the decedent. Our Supreme Court held that the document was not a valid olographic will because it had not been signed by the testatrix. In so holding, the court said:

“An essential form for a will of the kind in question in this suit is that it be signed by the testator; and the mere writing of the name of the testator as part of, or in connection with, the instrument, but at some other place than where a signature usually is and ought to be, is not in form a signature, and therefore does not satisfy the sacramental requirement of the law. It leaves open the question whether the name thus written was intended to be the signature. * * * ”

In Succession of Dyer, 155 La. 265, 99 So. 214, the will there in question was entirely written, dated and signed by the testatrix. Under her signature, however, she wrote a postscript purporting to appoint two executors and to make bequests to them, but her signature does not appear at the end of this postscript. The Supreme Court held that although the will itself was valid, the postscript which came after the signature was invalid because it had not been signed by the testatrix. In commenting on the Armant and Poland cases, the court said:

“ * * * On the contrary, in the succession of Armant, 43 La.Ann. 310, 9 South. 50, 26 Am.St.Rep. 183, and again in Poland’s Estate, 137 La. 219, 68 South. 415, it was held that an instrument purporting to be an olo-graphic testament, written and dated by the testator, was invalid because the signature was not written at the end of the document, or so as to indicate that the name as written was intended to be a signature to the will." (Emphasis added).

In Succession of Fitzhugh, 170 La. 122, 127 So. 386, the testatrix wrote on one side of a single sheet of paper certain testamentary dispositions, and dated them, but she did not affix her signature to the dispositions. She then placed this document in an envelope, sealed it, and on the outside of the envelope she wrote the words, “ ‘My last will. Mary Fitzhugh Smith. April 23rd, 1926. New Iberia.’ ” The court held that the writing of the testatrix’ name on the envelope could not be considered as a signing of the will by her.

In Succession of Bechtel, La.App.Orl., 99 So.2d 495, two documents were presented by appellants for probate. One, purporting to be a last will and testament, began with the words, “I Ella C. Bechtel, of legal age and a resident of * * but no signature was affixed to that writing. The other document, written by the testatrix in ink on a separate piece of paper, recited that, “The enclosed is my last will. I believe I have destroyed all other wills.

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Related

Succession of King
595 So. 2d 805 (Louisiana Court of Appeal, 1992)
McGuffin v. Jones
159 So. 2d 286 (Supreme Court of Louisiana, 1964)

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Bluebook (online)
157 So. 2d 256, 1963 La. App. LEXIS 1961, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcguffin-v-jones-lactapp-1963.