Home/Louisiana Court of Appeal/Succession of Bendily

Succession of Bendily

132 So. 2d 693, 1961 La. App. LEXIS 1326
CourtLouisiana Court of Appeal
DecidedJune 30, 1961
DocketNo. 5402
StatusPublished
Cited by2 cases

This text of 132 So. 2d 693 (Succession of Bendily) 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
Succession of Bendily, 132 So. 2d 693, 1961 La. App. LEXIS 1326 (La. Ct. App. 1961).

Opinion

HERGET, Judge.

On March 5, 1959 Mrs. Inez C. Bendily, widow of Hatch J. Bendily, died in Livingston Parish, Louisiana, leaving no living ascendants or descendants. An olographic will, purportedly written, dated and signed by the testatrix was probated by the Trial Judge despite the opposition of several nieces and nephews of decedent as to the validity of the will, contending that the will bore no certain date; that if it be contended that the date was Dec. 5-58 then the will was not written on December 5, 1958.

The Trial Court concluded that the will was dated December 5, 1958 and dismissed the opposition to the execution of the will. From this judgment opponents appealed to the Supreme Court of Louisiana, which Court, under the provisions of the Constitution of Louisiana, transferred same to this Court for decision.

The appellants contend that the will could not have been written on December 5, 1958 and offered in evidence in an attempt to show same was impossible proof by the witnesses who appeared at the probate of the will and who likewise signed the olographic will as witnesses that the will was in fact executed by the testatrix on a Sunday either in November or December, 1958; that December 5, 1958 was on Friday and therefore the will was not written on that date. Opponents offered further evidence to the effect that the testatrix had left the State of Louisiana on December 5, 1958 and therefore the will could not have been written on that date. This phase of the opposition is without any effect for there is no requirement that the will be written at one sitting or one day, the sacramental formalities of an olographic will being that the same be entirely written, dated and signed in the hand of the testator. Thus it becomes unimportant as to what date the testatrix dated her will, but [694]*694the serious issue raised by opponents is the question as to whether, in fact, the instrument does bear a certain date.

In the Succession of Buck, 208 La. 556, 23 So.2d 215, 222, the late Chief Justice O’Niell of the Supreme Court of Louisiana in an exhaustive opinion reviewed the Louisiana and French authorities on the issues presented to us for resolution. We quote copiously from his opinion:

“It is well settled that, under article 1588 of the Civil Code, declaring that an olographic testament, in order to be valid, must be entirely written, dated and signed by the hand of the testator, and article 1655 requiring proof by the declaration of two credible persons, who must attest that they recognize the testament as being entirely written, dated and signed in the handwriting of the testator, if the date appearing on the instrument is uncertain, it is not a valid olographic will. It was so declared literally in the Succession of Curtis, 149 La. 487, 89 So. 629, and, substantially, in the following cases: Fuentes v. Gaines, 25 La.Ann. 85, 107; Heffner v. Heffner, 48 La.Ann. 1088, 20 So. 281; Succession of Robertson, 49 La.Ann. 868, 21 So. 586, 62 Am.St.Rep. 672; Succession of Swanson, 132 La. 606, 61 So. 685; Succession of Wenling, 172 La. 673, 135 So. 21.
“This pronouncement in the Succession of Curtis, 149 La. 487, 89 So. 629, 630, is supported by the French authorities, and is very appropriate, viz.:
“ Tt is well settled that, if any part of the date appearing on an instrument purporting to be an olographic testament is doubtful or uncertain, whether as to the day, month or year, the effect of the uncertainty or doubt about the date is the same as if the instrument were not dated at all; such an instrument is not a valid olographic testament. The will in question was probated as being dated October 5, 1918. The last figure in the date line has the appearance of having been converted from the figure 0 or the figure 6 into the figure 8; and the date appears yet as much like October 5, 1910, as like October 5, 1918.’
“Article 1588 is a free translation of article 970 of the Code Napoleon, now called Code Civil Francais, a literal translation of which in Louisiana Legal Archives, Vol. 3, Part I, p. 876, is as follows:
“ ‘The olographic testament shall not be valid unless it is entirely written, dated and signed by the hand of the testator: it is subject to no other form.’
“The French commentators on article 970 of the Code Civil Francais— both the old and the modern commentators — are unanimous in their opinion that an incomplete or uncertain date in what purports to be an olographic will is equivalent to no date, and renders the instrument null.
“Carpentier et Du Saint, in their Repertoire du Droit Francais, Vol. 35, sec. 478 and sec. 481, state the rule thus :
“ ‘No. 478. Although the date is not tied down to any sacramental form of expression, at least must it be certain in order that it may answer. Uncertainty in the date is equivalent to no date at all and renders the will null.’
“ ‘No. 481. The date is again uncertain if, for instance, it is surcharged (meaning written over) in such way that it cannot be read, or that the judges remain undecided between two dates equally apparent.’
“Baudry-Lacantinerie, Traite de Droite Civil, Vol. 11, Part 2, Sec. 1960, gives the rule thus:
“ ‘Hitherto, we have spoken only of the inexact date. The same principles are applicable to the incomplete date, for example, as to the date indicating [695]*695the month and the year, but not the day, ■of the confection of the will. They apply equally to the uncertain date; for ■example, that which has been written ■over (surchargé) in such manner that it shows two dates.
“ ‘An incomplete date, or an uncertain date, as clearly fails to comply with the form prescribed by article 970, Code Civil, as does an incorrect ■date.
“ ‘The testament bearing an incomplete or uncertain date is, therefore, null and void, for the same reason as .a testament not dated or bearing a date which is not correct.’
“Demolombe, Donations Entre-Vifs —Testaments, Vol. 4, Sec. 85, states the rule thus:
“ ‘Is an uncertain date sufficient ? Evidently, No. The date is, as we have said, the precise indication of the day, the month and the year of the making of the will; so that the date which leaves uncertainty as to any one of these three elements does not indicate it in a precise manner. Hence, such date is not sufficient; or rather it is not a date in the sense of article 970.’
“Demolombe, in sec. 86 of the same volume, points out that there were some commentators who thought that the certainty of the date, in an olo-graphic testament, was not indispensable, if the month and year were stated plainly in the instrument; but the author expresses as his own opinion that certainty of the day, in the date given in an olographic will, is as essential as certainty of the month and year; and he declares that the commentators are unanimous in their opinion that uncertainty with regard to the year stated in the date line of an olographic will -.renders the will null.
“Merlin, Repertoire de Jurisprudence, Vol. 17, Sec. II, Par. I, Art. VI, p. 302, states the rule thus:
“ ‘Does the uncertainty of the date of a will vitiate it? Yes, without doubt.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kanable v. Birch
471 P.2d 237 (Nevada Supreme Court, 1970)
Succession of Gaudin
140 So. 2d 384 (Louisiana Court of Appeal, 1962)

Cite This Page — Counsel Stack

Bluebook (online)
132 So. 2d 693, 1961 La. App. LEXIS 1326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-bendily-lactapp-1961.