Segur's Heirs v. Segur

12 La. 25

• Court: Supreme Court of Louisiana
• Decided: February 15, 1838
• Status: Published

Opinion

Bullard, J.,

delivered the opinion of the court.

This action was instituted to annul the testament of J. L. Segur, on several., grounds ; but chiefly, that one of the witnesses was incompetent, being the grandfather of one of the legatees, that the will was not dictated by the testator, and that it does not appear that it was written by the notary himself.

I. It is conceded, that Evariste Lauve, one of the testa-witnesses, is the grandfather of Florentine Lauve, w^10 entitled under the will, to a specific legacy,

The counsel for the appellants contends, that although the witness in 'question was not laboring under any absolute incapacity, according to article 1584 of the code, and though he would not be excluded as relatively incapable under the next article, not being himself a legatee, yet, inasmuch as he could not testify in a court of justice in a case in which his grandchild might be a party, he is necessarily incapable of acting as a witness to a testament by public act, in which, she has a direct interest as legatee.

The authorities cited from French commentators, do not appear to us to sustain the counsel in this position. It is true, that, witnesses to a testament by public act, must possess not only the qualities required for that particular act, but for notarial acts in general; but it does not follow that they must be competent as judicial witnesses in any controversy growing out of the will. Witnesses to authentic acts, other •than testaments, must be free males, and at least fourteen years of a&e- Theil' attestation proves nothing but rent ipsam, and although they may have such an interest in the subject matter of the contest, or stand in such relation to either or both of the parties, as to render them incompetent to testify in a suit at law, yet it is not believed that the instrument would be the less authentic. The article of the code above •referred to, having declared that the instituted heir or legatee ■shall also be incompetent to serve as witnesses to a testament, it appears to us the maxim applies est alterius ‘expressir unius exclusio

The notary Memorandum of dictations of the testator, and. -write out the ;f'it^sMn done “ .the presence and without MheMmatters, it Miv<MvaUcUty to the will.

II. In relation to the dictation of the will, and the manner in which it was written, it appears to us there was substantially a compliance with the requisites of law as expressed by us in the case of Chardon’s heirs vs. Bongue, 9 Louisiana Reports, 458. ’ " * 3

ii It is true, the notary first noted on a memorandum the different bequests, and afterwards wrote them out; but the whole was done in presence of the witnesses, and in truth, most of the will was twice written, according to the dictation of the testator. Nor does it appear to us that there was any such interruption or turning aside to other acts, as would vitiate the. act. .

III. We are of opinion, that the testament itself sufficiently shows that it was written by the notary. The expression to which our attention has been called, is as follows : “ Ce testament, a été ainsi dicté par le testateur au notaire soussigné et.écrit par lui,” &c. According to a grammatical construction of the sentence, the pronoun lui, refers to the last antecedent, the notary; but if we-even admit that it is doubtful, it must refer either to the notary or the testator himself, and on the last supposition the' testament would be valid, as olographic.

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