Frith v. Pearce

The opinion of the court was delivered.by Watkins, J. On rehearing by Nicholls, C. J. Watkins, J. This is an action to have the nullity of a testament decreed, and, in the alternative that the validity of the same is maintained, that the legacies therein stipulated be declared void and of no effect, and not enforceable in law. The testament is of the following tenor, viz: “State of Louisiana, “Parish of Avoyelles. “Be it known that I, William M. Ewell, notary public in and for the “State and Parish aforesaid, on the 10th day of November, A. D. 1892, “repaired to the house of Mrs. Sarah A. Frith, inhabitant of the said “Parish of Avoyelles and State of Louisiana, where, at her request and “dictation, the following instrument was written by me, the said notary, and declared by the said Mrs. Sarah A. Frith to be her last will “and testament, which was written by me, said notary, as dictated by “said Mrs. Frith, without turning aside to anything else, in presence “of the undersigned witnesses. “1st. I want May Pearce to have one hundred acres of my cleared “land on the Talbot place. “2nd. I want Minnie and Sadie Frith to have fifty acres of land “each on the Talbot place, cleared land. — 188 — “3rd. I want my sister, Mrs. Verlinda Marshall, to have twenty-“five acres of open land on the Talbot place. “In testimony whereof, the said Mrs. Sarah A. Erith, not being able “to sign her name, on account of physical disability, her son, Thomas “P. Frith, signs for her, in presence of Aubrey Lee Johnson, John A. “Hollinshead and Wyatt K. Pearce, lawful witnesses residing in this “parish, and me, the said notary, after reading the same in an audible “voice, in the presence of the testatrix and said witnesses without interruption and without turning aside to other acts, this 10th day of “November, A. D. 1892. “Sarah A. Frith, “Per Son, T. P. Frith. “Witnesses: “A. L. Johnson, “J. A. Hollinshead, “W. K. Pearce. “Done and passed on the day and date aforesaid, and in the parish “aforesaid. “William M. Ewell, “Notary Public.” This document was admitted to probate as a nuncupative testament under private signature, and, as such, its validity was maintained by the judge a quo. He decreed that the bequest made in favor of Mrs. Verlinda Marshall be recognized and enforced, but that those bequests that were made in favor of May Pearce and Minnie and Sadie Frith be severally decreed null and of no effect in law and that said legatees are prohibited from inheriting said bequests by reason of their renunciation and abandonment thereof and their acceptance of their respective shares in the succession of the testatrix as heirs at law. From that judgment, the plaintiff, alone, has appealed, the cast defendants, as legatees, having contented themselves with making answer to the plaintiff’s appeal and requesting an amendment of the decree annulling the bequests in their favor. The grounds upon which the plaintiff contests the validity of the testament are the following, viz: 1st. That the said testatrix did not sign or affix her signature to said will, and the signing by her son, T. P. Frith, Jr., renders said will invalid. — 189 — 2nd. That it does not appear from said will that there were any declaration, on the part of said testatrix of her inability to sign, or the reason why, except the written statement of the notary himself purporting to give his own opinion, and not the declaration of the testatrix as dictated by her to him. 3rd. That the bequests to Minnie and Sadie Erith, who inherited by representation through their deceased father, Chas. E. Frith, and May Pearce, inheriting by representation through her deceased mother, Menerva Pearce, all of whom were forced heirs of said testatrix and named legatees in items first and second of said will, are null and void, for the reason that said will does not disclose that the said testatrix intended said legacies bequeathed to said heirs to be over and above their legitime, or over and above the legitime portion of other forced heirs. 4th. As a nuncupative will under private act that the requisite number of witnesses did not attest said will. 5th. It does not appear that said will was ever read by said testatrix to the witnesses, or by one of the witnesses to the rest in presence of said testatrix. 6th. And as the last ground, that the legatees, Minnie and Sadie Frith and May Pearce, having effected a partition of the entire succession, in utter disregard of the will, are now estopped from claiming any benefit under such invalid will. As the discussion in the briefs, and oral argument as well, are chiefly addressed to the question of the validity of the will as a testament under private signature, we will observe the same course in its examination. . Counsel for appellant insists, that the Judge a quo in sustaining the will as a nuncupative testament under private signature, improperly sustained the defendant’s contention to the effect that- both the notary and T. P. Frith were competent witnesses, same being necessary to make out the requisite number of five witnesses. His statement is that “whilst the Supreme Court, in a few instances, have, in order to hold a will good under private act, declared the notary a competent witness thereto, this ruling can not be so extended as to permit such a flagrant violation of the articles of the Civil Code on this question.” “The notary is a witness to the act as much as the other attesting witnesses ; he attests the signaure of both the testator and the witnesses. In other words, he is an official witness in every act pertaining to the execution of the will.” — 190 — This argument goes very far towards admitting that the notary who attests an instrument as a nuncupative testament by public act, may be treated as a simple witness to a testament under private signature, when same is so considered. “But,” he says, “this’ reason would not apply to the signature of one who simply writes the name of the testatrix. His affixing his signature is not conclusive proof that the will was either read by him, or in his presence. * * * “ * * * This will purports to be signed by an agent or attorney in fact’; such agent can no more be called a witness than, could the testator himself. He does not,appear as attesting any part of the will; he simply affixes the signature! of the testatrix and witnesses. The act simply purports to be the act of the testatrix, and greater significance cannot be given such signature than the original signature of the testatrix. The article 1881 of the Revised Civil Code plainly points out the manner of affixing the signatures of those who are unable, or know not how to sign. It is by affixing their marks by the notary, or one of the attesting witnesses residing in the place.” The contention, on the other hand, is that the signatures as appended to the testament, thus “Sarah A. Frith, per Son, T. P. Frith,” sub-serves all the requirements of the law touching the signature of a person who is incapable of signing as testator, as well as that of a competent witness thereto. The name of the testatrix was written by her son, and he signed his own name for the express purpose of attesting her signature. . Defendant’s counsel submits that “five names do actually appear signed to the instrument as persons present when it was executed, although it may appear that the entire five did not intend to officiate as witnesses, nevertheless, in order to maintain the validity of the will, they will be regarded as having acted in that capacity. * * * * * “Independent of any authority on the point, no good reason can be assigned against counting all of these five names as (the names) of witnesses. The law simply says that the testament must be executed in presence of five witnesses. Certainly, it is proven, both from the face of the will itself, and by the testimony aliunde, that those five persons were actual witnesses. They were all (present) during the whole making of the testament, and 'signed as being present at its execution.” The following extracts from the testimony of the witnesses who were heard at the trial, support that proposition. — 191 — That of Dr. Hollinshead, one of the witnesses who attested the will, being that: - “The notary, according to my recollection, was writing what she dictated, and the witnesses were all there, both as the .dictation was made and the writing was done. Immediately after the- writing was concluded, the notary read over what he had written to Mrs. Erith in the presence of -us all, and asked her if that was what she wanted, and she assented. The signatures were then immediately affixed. The foregoing matters were all gone through without any interruption of any kind. We were all standing around Mrs. Erith’s bed when she began to dictate to the notary, and we remained there until the dictation, writing and reading and signing were completed, in the manner I have stated above. All the formalities stated in the will were complied with as they are written in the will.” That of Eev. A. L. Johnson is of similar import. Another witness was Erith Pearce, a grandchild and heir of the testatrix. He was present when her will was) executed, and stated that “he heard her dictate, saw the notary write it, and heard him read it over to her after it was written. The dictation, writing and reading were all done in he presence of the witnesses to the will.” “My grandmother,” testified this witness, “first dictated her will to the notary in the presence of the witnesses, who were all standing around her bed. He wrote it down as she dictated it, and then read over to her what he had written. He asked her if that was what she wished, and she assented. The will was then signed by the notary and by the witnesses, and by T. P. Erith for the testatrix. All these things were done without turning aside to anything else, the witnesses remaining about the bed from the time the formalities were commenced until they were concluded. I remember the incident' of my grandmother asking for the notary. When it was known that she desired to have a notary in order that he might write her will, Mr. T. P. Erith was standing at her bedside. He said: ‘Ma, it is unnecessary for you to make a will; any desire of yours will he fulfilled by me just as if you were) living.’ The other heirs of Mrs. Erith were present and heard this. There was a general assent among those in the room to this. I am twenty-four years of age. I am not a legatee under this will. All the heirs of Mrs. Erith were present in the room when the will was dictated, and executed. Henry Erith and I were the person's who went for the notary that night.” The other witness heard for the probation of the will was Mrs. John — 192 — Snelling. This lady, before her marriage, was Miss Bessie Murph, the testatrix’s granddaughter. She testified that she was present when her grandmother’s will was executed, and swore as follows: “I am not named as legatee in the will. I heard my grandmother dictate the bequests made in the will at the time the will was executed. After she had been told what her will was, she called me and told me that I must not feel that because she had left me out of her will, was because she didn’t care as much for me as the others; it wasn’t that at all, but that she had thought about it and thought I would have as much land as the other three girls without the extra amount. She meant this: I was the only heir of my mother, and in the case of the others, there were three of Ed. Erith’s children and three of the Pearces. I would get the share of one of her children, while the others would be divided into thirds. That is the reason why that the others were mentioned in the will and I was not.” Dr. Hollinshead further testified as follows: “I saw Thomas P. Frith sign his mother’s name and his own to the will. Frith signed his mother’s name to the will, then we signed as witnesses, and then the notary Signed, according to my recollection. At the time this will was signed Mrs. Frith’s condition was very low; she could not possibly have signed the will.” In addition to the statements made by witnesses, the recital of the testament is that at the request and dictation of the testatrix, “the following instrument was written by me, the said notary, and declared by the said Mrs. Sarah Frith to be her last will and testament, which was written by me, said notary, as dictated by said Mrs. Frith.” In Wood vs. Roane, 35th Ann, 865, it was held that in the execution of nuncupative wills under private signature, the law authorizes the testator to cause his will to be written out of his presence and that of the instrumentary witnesses; that the person who has acted as the amanuensis of the testator for that purpose, is not disqualified on that account from officiating as one of the witnesses to the will, and can be counted as one of the five witnesses as required by law. That proposition strikes us as perfectly sound, and it is applicable to both William M. Ewell, who signed the instrument as a notary, and T. P. Frith, who signed it as acting for the testatrix. Both were competent to sign as witnesses, and both did sign the act. The five persons who signed the act were all present when the will was dictated — 193 — by the testatrix, and written by W. M. Ewell, as dictated, “after reading the same in audible voice in the presence of the testatrix and the said witnesses.” Considering W. M. Ewell, as one of the witnesses, it was competent for him to write the will, and afterwards read it to the rest in the presence of the testatrix. We are of the. opinion that there were five witnesses who signed the testament, and that, in that respect, same is valid. Counsel for appellant contends that the will is void, because it contains no express mention made by the testatrix, herself, of her inability to sign same, or the reason of her inability so to do; and that the .mere declaration of the person who wrote same that the testatrix “was not able to sign her name, on account of physical disability,” was not a fulfilment of the requirement of the law. The only formality that the law prescribes for the confection of a nun-cupative testament under private signature is that it be written by the testator himself, or by any person from his dictation; or even by one of the witnesses, in presence of five witnesses. “Or it will suffice if, in the presence of the same number of witnesses, the testator presents the paper on which he has written his testament, or caused it to be written, declaring to them that that paper contains his last will.” R. C. C. 1581. “In either case, the testament must be read by the testator to the witnesses, or by one of the witnesses to the rest, in presence of the testator; it must be signed by the testator, if he knows how, or is able io sign” &c. R. C. C. 1582. The law declares that “this testament is subject to no other formality than those prescribed by this and the preceding article.” Id. Much stress has been laid in argument, on the provisions of R. R. C. 1579, but they apply to testaments received by public acts, and those only. It is undoubtedly true that the will under consideration was drawn by a notary, who intended it for a nuncupative testament by public act,- but as the law declares that “it suffices, for the validity of a testament, that it be valid under any of the forms prescribed by law, however defective it may be in the form under which the testator may have intended to make it.” (R. C. C. 1590), we are at liberty to disregard the phraseology of the instrument incident to a notarial act, and deal with its substantial elements; and having done so, we find in the will — 194 — the substantial statement, that the testatrix- was unable to sign her name “on account of physical disability.” We are of opinion that that recital subserves all the requirements of the law. We have been referred to no authority-on-this question, by counsel on either side, and those cited with reference to testaments received by public acts are not applicable, on account of the marked difference between the two articles of the code- that appertain to nun-cupative testaments. Our examination has led us to the conclusion that the will is legal and valid. With regard to the nullity of the legacies in favor of May Pearce and Minnie and Sadie Erith because of their having, participated in the partition of some of the succession property of the testatrix, hut little is said in the briefs of either party. The record discloses the fact that such a partition was made, but it also shows that all of said legatees were minors at the time, and. represented in the proceedings by special tutors appointed to represent them therein. The defendants’ counsel insists that the defendants can not be judicially estopped by such proceedings; and in that proposition we quite agree. Zunts vs. Courcelle, 16th Ann. 98. 7 Am. and Eng. Enc. of Law, p. 4, and authorities cited. This conclusion necessary results in the amendment of the judgment appealed from, so far as to reinstate the aforesaid legatees and to affirm it in all other respects. It is, therefore, ordered and decreed, that the judgment appealed from be so amended as to reinstate and maintain the legacies in favor of May Pearce and Minnie and Sadie Erith, and that the same be, in all other respects, affirmed; and that all costs be taxed against the plaintiff and appellant.