State v. Martin

2 La. Ann. 667

• Court: Supreme Court of Louisiana
• Decided: June 15, 1847
• Status: Published

Opinion

The judgment of the court was pronounced b.y

Host, J.

This case presents two novel questions. 1.-.Could Francois Xavier Martin, after he became blind, make any dispositions mortis causa, in thetolographic.form ? 2. If he could, .was.the institution of the defendant as his .universal legatee, a simulated disposition, made .for the purpose of evading the.fiscal regulations of the.act of 1842, imposing a tax of ten per cent on the value of all the property inherited,in Louisiana by foreigners not domiciliated here, and with the secret intention .that the disposition should inure, for the whole,.or for a.part, to the benefit of the foreign relatives of-the testator.?

We will first notice the question o.f capacity.

I. In the case of Gibson v. Foster, lately determined (ante p. 503), after a thorough investigation of the .-law in relation to nullities, we.said : “ That, where defects of form only were alleged, we disclaimed all power to extend nullities to cases neither expressly provided for by the lawgiver, nor coming within the legal intendment of art. 12 of the Civil Code, as fixed by the jurisprudence from which it .is derived:” In the case of the Union Bank of Louisiana v. Morgan, ante p. 418, we held .that the blind.are not declared by law incapable of contracting, and that,.as a general rule, all persons have that.capacity, except those whose incapacity it .expressly declared. We thought on those occasions, that incapacities and defects of form are stricti juris ; that they .cannot be extended from one person to the other, or from one .case to .the other, and that where the law is silent, .courts of justice seldom have authority to invoke considerations of supposed public policy for the purpose of defeating private rights. We are well satisfied with .these views and decisions. They settle .the jurisprudence of the Stale on the important subject of nullities.

We are called upon .to decree the nullity of a solemn act.of .last will, -neither declared to be null, nor expressly prohibited, by law. The nullity alleged is purely one of form, as it is conceded that the testator, -notwithstanding his blindness, might lawfully havejnade,a nuncupative will. It is .not, in legal intendment, an absolute nullity, since it may be cured by -lapse of time, or by voluntary execution or ratification on the part of the heirs .at law, and, if enforced, leaves them under a natural nbligation to .execute the will. Civil Code, arts. 3507, 1751. 7 Toullier, nos. 554 to 565. It is not asked by the foreign heirs, on the ground that the defendant is.a person interposed. One of them has judicially recognised the validity of the will, and the others are silent. The nullity is sued for on behalf of the fisc, exclusively for fiscal purposes, on the assumption that its capacity to maintain the action is the same as that of the heirs.

We will examine the questions presented, on that hypothesis, premising here., that all the authoiities cited in argument have reference to cases in which the heirs are parties.

Art. 1456 of the Civil Code provides that, all persons may dispose, or receive, by donation inter vivos or mortis causa, except such as the law declares especially incapable. The C.od.e further provides that an olographic testament, in order to be valid, must be entirely written, dated, and signed, by the hand of .the testator, but is subject to no other formality. The will in this case was made in that form, and was admitted to probate on the sworn declarations of Messrs. Simon, Bullard, and Morphy, the colleagues of .the testator on the bench of the late Supreme Court, that it was, in the words of the law, entirely written, dated, and signed by him, they having often seen him write and sign his name. All the formalities required for ,the validity of olographic wills were strictly complied with. It is therefore incumbent upon the plaintiff to show affirmatively, that the nullity necessarily results from some legal provision in relation to olographic wills, or from the context of our legislation in relation to testaments generally, and the .capacity of testators.

It is alleged that the testator must have had assistance of some kind, as it is in proof that he .could not have written his will without it, and that the will was not, therefore, .entirely written, dated, and signed by himself. He told one of the witnesses that he had written it with the .assistance of a rule. We have no doubt it was so. The assistance of a rule, after he became blind, was not greater than that of a pair of spectacles would have been, while he could still see. A testator may avail himself of mechanical and other assistance in the making .of his will, provided that assistance does not operate upon the substance of the testament. It is not pretended that it did in this instance. 5 Toullier, no. 47.

It is .urged that, blind persons are expressly prohibited from making wills in the mystic form, and that if a will made in that form, and entirely written, dated, and signed by a blind testator, should be rejected as a mystic will, it is absurd to suppose that it could be established in the olographic form. There is nothing absurd in this. By an express provision of the Code, a will, not valid in the form intended, must be maintained, if it fulfills the requisites of either of the other forms. Civil Codo, art. 1583. 12 Rob. 35. 6 Mart. N. S. 263.

The analogy drawn from the jurisprudence of France, that the incapacity of ¡the blind .to make an olographic will exists though not expressly declared, because the incapacity of blind persons to be witnesses to wills is admitted to .exist there though n.ot .exjiressly declared, if it have any force with us makes .against the pretensions of the plaintiff. By art. 1584 of the Code, the incapacity of blind persons to be witnesses to wills is expressly declared ; but their incapacity to make an olographic will is nowhbre to be found.

It is .contended that the testator .could not read what he had written, and had no means of ascertaining whether his intentions were correctly set down; and that the will does not, by itself, make the proof required, that the dispositions it purports to contain emanate from the testator and embody all his intentions. The Jaw does not require proof that the testator read his olographic will, ¡after writing it; and the fact that he did not, is not a cause of nullity. Moreover the representatives of .the fisc forget that they have made two pleas, which are not entirely consistent with each other. For the purpose of terminating this ¡litigation we have overlooked the irregularity of the pleadings; but they cannot take advantage of it, to deny, under the first plea, the fact of all others which they have taken most pains to prove under the second, that the will is in all respects such as the testator intended. The evidence adduced in support of one branch of tho case must necessarily have the effect to which it is entitled on the other; and the plaintiff is precluded from alleging that the intentions ofithe testator are left in doubt.

A vast number of authorities have been adduced. Those drawn from the Spanish commentators, rest upon an express disposition of the Partidas, and can be of no assistance to us. None of the french authorities cited, expressly say that a blind man who can write cannot make an olographic will. Grenier, who goes farther than any other, argues the question as one of inconvenience and danger to the testator. The will, he says, may not be legible; frauds and deceits may be practised on the .testator. These arguments would apply with equal force to testaments made in any form, and do not seem to question the right of the testator to resort to the olographie will. Duranton, vol. 9, no. 139. Delvineourt, vol. 2, note 12, p. 309. Boileux, Com. on art. 699 of Code Nap. Rogron, on arts. 977, 978, 979 C. N. Domat, des Testamens, titre 1, sec. 3, § 20. Merlin, Testament. Grenier, Donations, vol. 2, nes. 258, 281. Ricard, Traité des Donations, nos. 142, 1470, 1474. Dénizart, Collection, Testament, no. 160. Pothier, Traite des Donations Testamentaires, ch. 1, art. 4. Partida 6, 1.14, tit. 1. Gomez, Opera Omnia; 3 1. Toro, nos. 51, 52, p. 25. Molina, on the laws of Toro, nos. 69, 70, Madrid edition. Febrero Addicionado, vol. 1, parti, chap. 1, no. 14

The authorities cited by the defendant’s counsel, on the other hand, unequivocally hold that, when a man can write, he is not incapacitated on account of blindness from making an olographic testament. Coin-Delisle’s Commentaries on the Napoleon Code, p. 408, no. 4. Marcadá, vol. 4, p. 48, and page 7, no. 2; page 13, no. 5; page 332, no. 7. Vilarde, Dict. du Notariat, verbo, Aveugle. Vazeille, on Donations and Testaments, 498,

It is a singular fact that the researches of the able and diligent counsel who have taken part in the argumentof this case, have only enabled them to find in the annals of jurisprudence the single precedent mentioned by Dénizart. The heirs of Madame de Pressigny, attacked an olographic will made by her after she became blind, on the ground taken by most of the authorities cited at bar, that a blind person, not being able to write, could not make testamentary dispositions in that form. But the executor maintained that the testatrix could write, although blind, because it was in proof that she had written, and that ah actu .ad posse valet consequentia. It was further contended by him that, the provisions of the roman law and of the french ordinance of 1735, in relation to wills, having exclusive reference to nuncupative and mystie wills, had not limitatively subjected the blind to one or the other of those two forms. Dénizart, loco citato. The capacity was recognized and the will maintained.

The commentators, who combat this opinion, say that it was probably rendered upon peculiar and unknown circumstances, and this, we apprehend, is the key to the principle upon which the question turns. Coin-Delisle, in a passage cited by the appellee, says : “ II est de principe que les incapacites ne s’étendent pas. Aussi avons-nous dit ailleurs que les incapacites naiurelles n’étaient pas de vraies incapacites, mais des impossibilités physiques, et que les questions sur ce genere de difficultés devaient étre jugées suivant les circonstances.” In England, a similar rule at this day prevails. Lovelase on Wills, nos. 264, 265, 15 Law Library.

In this view of the law we concur. Natural incapacities are not questions of law, but matters en pais, depending upon the peculiar circumstances of each case. Most of the commentators relied on by the appellees either say, or intímate, -that a blind man cannot make an olographic will, because he cannot write ; but as no one doubts that the late able presiding judge of the Suprexne Court of this State could wi’ite, that reason does not ci-eate an incapacity as to him. Should the conflicting authorities adduced have left us in doubt, that of the testator himself would have had great and deserved weight with us. But we are clearly of the opinion that the incapacity alleged is not established by law, nor to be implied from its provisions, and that it is a mei’e question of fact. The court of the fii’st instance came to the same conclusion, but considei’ed the physical impossibility established by the notoi'ious helplessness of -the testator. Public-notoriety cannot outweigh, in our minds, the testimony of the thx-ee unimpeachable Witnesses upon which the will was admitted to probate, and the uncontradicted evidence adduced on behalf of the plaintiff, that this instrument wasin all respects as intended by the testator.

II. The other ground of nullity alleged by the appellee’s counsel, whether called a tacit fidei-com/missum, or by any other name, presents a question of fraud ; and we agree -with them that they are not limited in their proof to the rules of evidence applicable to ordinarycases; nor is it indispensable for them, under the rule of the civil law, to establish-a pact between the testator and the defendant. It is sufficient that they prove by any description of direct, or circumstantial evidence, the intention of the testator that the legacy, -or -a part of it,-should enure to his fox-eign heix-s, coupled with the -certainty that the instituted heir has discovered that intention, and has either executed,-or -intends to execute, it. W-e say, under the rule of the civil law, as it is believed the common law never readies secret intentions, not manifested by out-ward acts. That limitation is one of -the great safeguards of fr-eedom. It is the l'ule of our penal jurisprudence; and, whether it should not also be held to extend to issues of fraud, is a serious question, but a question which'the opinion we have formed does not render it necessaxy to determine.

Taking the nxle.of the civil lawas our guide, although the appellee is not limited by it in the 'nature of the evidence, that evidence, whatever it he, m-ust make the allegations certain. In this, as in other .eases, fraud is not -to be presumed, however probable it may appear. Should the evidence leave the fact of fraud doubtful, says Merlin, “ ilfaut que le juge forme lesyeuxá toute-conjecture purement humaine, pour s’en teñir aux simples decisions de la loi. Chardon, chap. 2, art. 1, nos. 16-20. Mex-lin, Repertoire, Fidéi-commis tacite.

The defendant was ordered to answer in open court, during the trial, certain interrogatories propounded by the plaintiff. The -substance of his answer is, that there was no pact or understanding between him and his brother in relation to the ti’ansmission of any portion of the property bequeathed ; that his brother gave him no instructions or directions whatever, but simply told him: “ I make you my heir. Dispose of my fortune — it is yours.” The last intex-rogatory was in these words: ■“ State whether it is not your intention to transmit, give, or remit, now or at a -futui-e time, or at your death, the property ieftyou, or part of the same, to the other heii's of the testator, or to some of them ? If yea, state the names, and the amounts” — to which he answered : “ I have, on that subject, no other intention but that of disposing of my fortune according to my will. I do not consider myself bound to make, at this moment, a public will. When I make it, I will follow my own intentions.

It is contended that he has not answered the last question propounded, and that the facts not answered must l)e taken for confessed. The answers are in french, and the manner in which they are made may depend upon the forra adopted in the translation of the interrogatory. The declaration of the defendant that, his only intention is to follow his own will, and to make his testament according to its dictates, negatives the idea of a deliberate intention to dispose now of the property in favor of any determinate person. We cannot,, therefore, consider the intention to transmit, as judicially admitted. But, if we d-id, the presumption which usually results from that intention, that the' transmission is made in.furtherance of the wishes of the testator,- would be rebutted by the presumption resulting in this case from the relationship of the defendant and the heirs at law. He is the brother of the testator, unmarried, and much- advanced in life. His only legal heirs are the foreign heirs of the testator; and, unless the intention of the latter, that he should transmit the property during his life,- is clearly established, he may without danger avow his intention to make, in favor of his nephews and- nieces, the disposition which the law will make for him, if he does- not. Such a disposition is not only legal, but natural and proper.

Many witnesses have been examined- to prove the alleged intention of the testator — from- his declarations in private conversations; from the circumstance1 that he induced his brother to come and live with him; and-from-the great dislike he had of the law of 1842, which- it is alleged he attempted to evade, Ju-dge Morphy,- one of his associates, states that, from his conversations, he was in doubt whether he sent for his brother to avoid paying- the tax to the State,- by making. Mm really his universal legatee, or whether the universal disposition in the will was intended merely to evade the tax, without disinheriting the other heirs. Judge Simon says that, the impression on his mind was that Judge Martin did not absolutely intend to disinherit his foreign relatives, but knows no fact which can authorize that belief. Judge Bullard testifies that,when cases in whieh this tax was involved came before the Supreme Court, the testator expressed his opinion upon the law imposing it, but otherwise never spoke of it; nor does the witness believe he had the intention of evading it himself; when he spoke of it, it was a general question-.

Had our minds been brought to-the state of doubt in which Judge Morphy, seems to be, it would be our duty to give the- defendant the1 benefit of that doubt. But the evidence in the record has not produced that result; and the life and character of the testator, as exhibited in the jurisprudence of this State for the last thirty-four years satisfies us, as they did Judge Bullard,- that he could not,- and did not, intend to commit a fraud. It is shown that he was on good term» with his relations; but it is also shown that he repeatedly gave, as a reason for instituting his brother his universal legatee, that he was of the same tastes and habits as himself; that he would-be “un autre lui-méme,” and take care of them, as he had been in the habit of doing. It is shown that he often complained of the act of 1842, and that he said- it might easily be evaded; but it is in evidence also that, he was in the habit of saying that it was the duty of a man to leave his fortune to his relatives, and to those nearest to him; that he thought his niece, Blanche Amelie Martin, rich enough with 60,000 francs, and did not intend to give her any thing else. That, at one time, he requested Judge Simon to find for him a plantation worth $100,000, which he wished to purchase, and give to two of his nephews, on condition that they would come to Louisiana, and settle here ; and that, not long before his death, when Judge Simon told him he had not succeeded in finding a suitable place, he said he was glad of it; that bis nephews refused to leave France, and should not have his money. It is in proof that he made similar statements to Judge Grima. It is true he was heard to say that the tax was unjust and foolish; he held it to be an exceptional, and therefore arbitrary, exaction, which those upon whom it operated were not without reasons to complain of. Iiis saying that it might easily be evaded, under the circumstances in which it was said, cannot be taken as proof of his deliberate intention to evade it. Besides, Blanche Amélie, and the two nephews who refused to come to Louisiana, his only relatives in France, are the son and the daughter of one of his sisters, who lately died there, tie may have been attached to his sister; but he could not have known her children at the time he made his will. Upon what principle of human action can it be explained that a man of great intellect, occupying the highest judicial station of the State, known to us all from our youth as having been a law unto himself, and who, whatever may have been his oddities and faults, justly prided himself on the purity of his life, should have died perpetrating a vile fraud, for the benefit of relatives unknown to him.

There is another view, far more consistent with his character. The love of independence was a passion with him; and the things of this earth, by which independence is secured, had a large share in his affections. His desire that his worldly goods should be kept together after his death, exhibited by the pain he felt at the mere suspicion that his brother would sell them and leave the country, far outweighed in his mind his attachment for those persons. We believe in the sincerity of his anguish. The last looks of the man of wealth, dying without posterity, are cast upon the property he has amassed ; his last hope on earth is, that his succession may live and continue to represent him. The defendant in this case was the instrument selected to give life to that cherished fiction. We have no doubt of his being really universal legatee ; nor that the intentions of the testator were, as he expressed them, that his brother should continue to be, in all respects, “m autre lui-méne.”

We have examined the questions submitted to us, on the hypothosis that the rights of the fisc were the same as those of the heirs. We do not wish to be understood as conceding that proposition. The fisc has no right to annul a will for defects of form, although the heirs may; nor would it be good policy to do so, if the power existed. The policy of the State, as declared by its laws, recognises the validity of probated wills till they are set aside by the heirs, and limits the time within which this may be done. Under those laws the will had been ordered, in the name of the State, to be executed. The fisc could not, without an express warrant of law, interpose to prevent its execution, for the purposes of gain.

The act of 1842 provides that, foreignheirs, legatees, or donees, not domiciliated in this State, shall pay a tax of ten per cent on all sums, or on the value of all property, which they may actually receive from a succession, after deducting the debts due by it. No one is heir, legatee or donee against his will, or before his acceptance, express or implied. There is no legal rule in relation to heirship, analogous to that of pater est quern nuptice demonstrant in relation to filiation. Suppose that the other foreign heirs should affirm the validity of the will, as Blanche Amélie has done, or that they should all renounce the succession, it would, in either case, devolve upon the defendant, who is already the heir at law for one third, and the State would surely not be entitled to the tax. If it bo said that the fisc is exposed to be defrauded, by the connivance of the heirs with the legatee, the answer is, that this is a casus omissus, requiring special legislation. Fiscal laws are in the nature of penal statutes; they act upon things as they find them ; and their operation should not be extended to cases not contemplated by their framers. United States v. Eighty-four Boxes Sugar, 7 Peters, 453.

But should the right of the fisc to interfere, before the acceptance of the heirs and their judicial recognition in' that capacity, be nothing more than doubtful, non putamus delinquere eum, qui in dubiis questionibus contra fiscum facile respondit. L. 10, Digest, De Jure Fisci.

The representative of the State has faithfully, discharged, what, under the information he had received,- he conceived to be an official duty. Upon us devolves the more grateful task to determine that he was misled by that information, and that the name of Francois Xavier Martin stands unsullied by fraud.

It is ordered that the judgment rendered in this case in favor of the State be reversed, and that there be judgment for the defendant, with costs in both courts.