Hebert's Heirs v. Herbert's Legatees

Carleton, J., delivered the opinion of the court. This action is brought to annul the last will and testament of Dorothée Hebert, whose heirs and legal representatives the petitioners allege themselves to be. The causes of nullity, alleged, are : 1st. That the will was dictated in the French language, but written by the notary in English, which was not understood by the testatrix. 2i. That of the three subscribing witnesses to the will, one of them was not sufficiently acquainted with the French to have understood it in that language, and that one other witness was absolutely ignorant of the English language, in which the will was actually written. 3d. That the will was not read to the testatrix, as it was written, in the presence of three witnesses competent to understand the dispositions it contained. The defendants, in their answer, insist on the validity of the will, and pray that they may be quieted in the possession and enjoyment of the property they hold under it. A -witness to a will who does not understand the language in which the will ie written, is incompetent to attest it. It is impossible he can compare what is written by the notary, with that which was spoken by the" testator. Incapacity or incompetency of witnesses to a will, isnotlimit-ed alone to the classes of persons enumerated in the article 3584, of the Louisiana Code. The court gave judgment for the defendants, and the plaintiffs appealed. The will is drawn up in the English language, in the nuncupative form, by public act, executed by the parish judge, officiating as notaiy public. On the part of the plaintiffs, Antoine Bagazzoni, testified, that he had known Francois Lefort, one of the subscribing witnesses, for twenty years; that he never heard or knew that he spoke the English language; that Lefort, having some short time since, some explanation to make with an American, inquired of witness -whether he could interpret for him. As this testimony stands uncontroverted, it appears to us sufficiently proved, and not denied in argument, that Lefort did not understand the English language, and therefore, could not know whether the will contained the dispositions intended by the testatrix. It was impossible he could have compared what was written by the notary, with what was spoken by the testatrix. He could not, therefore, testify to the faithful execution of the will, and for all legal purposes, might as well have been absent in a distant place. But, it is contended by defendants’ counsel, that, inasmuch as all persons who are by law incapable of being witnesses to testaments, are specially enumerated in article 1584 of the La. Code, it follows, necessarily, that all other persons whatever, are competent witnesses for that purpose. In this opinion we do not agree with the counsel. The legislature have manifested great solicitude on the subject of last wills and testaments, and endeavored, by every possible safeguard, to ensure their faithful execution. They have required, that nuncupative wills by public act, should be attested by three witnesses, and read in their presence, to the testator. This wise precaution, and strongest barrier which the law interposes for the protection of the testator, would be vain and nugatory if the witnesses were incompetent to the trust they were called to fulfil. Language is the vehicle of thought, and if the witnesses could not understand that in which the will was written, it is plain they [366] would be in no better situation than the deaf who are expressly declared incompetent by the law cited by the counsel. Eadem est ratio eadem est lex. Louisiana Code, art. 1671. It appears to us, that Lefort was not such a witness as the law requires to be present at the making’ of a will, and that therefore, the testament under consideration, is void, for want of a sufficient number of competent witnesses. The opinion we have formed upon this subject, renders it unnecessary for us to notice any other ground of nullity or point raised by either party to the cause. It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates, be avoided and reversed ; that the said last will and testament of said Dorothée Hebert, be, and the same is hereby rejected, and that the defendants pay costs in both courts.