Succession of Whittington

26 La. Ann. 89

• Court: Supreme Court of Louisiana
• Decided: February 15, 1874
• Docket: No. 4852
• Status: Published

Opinion

Ludeling, C. J.

Caleb Whittington died in November, 1872. He left what purported to be a nuncupative will by public act, by which Thomas Duffy was constituted his universal legatee. The probate and registry is opposed by the legal heirs. The district court declared the will null and void.

The objection urged against the validity of the will is that the testator, not having signed the will, the notary undertook to declare the cause of the non-signing. The language of the notary in the proces verbal of the will is, “the said testator, being illiterate, signs liis. mark,” — and that this does not .meet the requirements of article-1579. We think the objection fatal. Conceding that the word illiterate means that the testator did not know how to sign his name, would not help the universal legatee’s case, for article 1579 requires this declaration to be dictated or made by the testator himself.

The article declares that “ this testament must be signed by the testator. If he declares that he knows not how, or is not able to signr ■express mention of his declaration, as also of the cause that hinders ■him from signing, must .be made in the act.”

The cases of Stafford v. Stafford, 12 La. 449, Shannon et al. v. Shannon’s executor, 16 An. 9, and Brand v. Baumgarden, 24 An. 628, do not support the views of the universal legatee.

The testator has not declared that he knows not how to sign, nor has express mention of that declaration been made in the will. The testament is therefore null and void. Marcadé, 4 vol., p. 22, edit. 1855.

It is.therefore ordered that the judgment of the lower court be affirmed with costs.