Succession of Holloway

• Decision Date: 29 February 1988
• Docket Number: No. 87-C-2093,87-C-2093
• Citation: 531 So.2d 431
• Parties: SUCCESSION OF HOLLOWAY. 531 So.2d 431
• Court: Louisiana Supreme Court

Page 431

531 So.2d 431

SUCCESSION OF HOLLOWAY.

No. 87-C-2093.

531 So.2d 431

Supreme Court of Louisiana.

Feb. 29, 1988.

Rehearing Denied March 31, 1988.

Walter White, Nelson, Hammons & Johnson, Shreveport, for applicant.

Lawrence May, Vivian, for respondent.

CALOGERO, Justice.

Louisiana's statutory will is one which "shall be dated." R.S. 9:2442(B). This case presents two essential questions:

1) Is this a mandatory requirement, so that the absence of a date is a fatal defect?

2) Is "the _____ day of February 1984" a date?

A case with relevant facts almost identical to the one now before us, Succession of Gordon v. Bridges, 257 La. 1086, 245 So.2d 319 (La.1971), was decided by this Court in 1971. ¹

The statute in existence at that time in its pertinent first paragraph did not state that the statutory will "shall be dated", as does the 1974 and current versions of the statute. It merely required that the will be in writing and signed by the testator in the presence of a notary public and two witnesses in a manner thereafter described. Additionally, R.S. 9:2442(3) then required that the described manner of execution be evidenced by a declaration in "the following form or a form substantially similar" to one which ended with the words "in the presence of the testator and each other we have hereunto subscribed our names on this _____ day of __________, 19__."

In a well reasoned but non-unanimous opinion the Succession of Gordon majority ² concluded that Louisiana's common law based statutory will "need not be dated" because there is no "express requirement within our statute mandating an inclusion of a date," and that while it is "advisable that a will be dated to show the order of execution if more than one will has been executed by the testator or in the event of an attack upon the capacity of the testator to make the disposition," nonetheless, if the will is undated, the date "may be established for the statutory will by ordinary proof when and if proof of it is needed." As the dissent in the case made evident, there was a respectable view that the statute as then written did indeed require a date, ³ and that the permissive "may" (R.S 9:2442(3)) referred not to inclusion of a date in the will, but to the required but alternate forms of the attestation clause, i.e., "Such declaration may be in the following form or a form substantially similar thereto."

In all events, after rendition of the judgment and opinion in Succession of Gordon v. Bridges, and responsive to a bill introduced at the urging of the Louisiana State Law Institute ⁴ the Legislature passed Act No. 246 of 1974. R.S. 9:2442 was thus amended in two particulars. The outset paragraph was amended to read as follows: "The statutory will shall be in writing ... shall be dated, and shall be made in the following manner:" (emphasis provided). It was also amended by revision of the remainder of the statute with deletion of the permissive "may" which had earlier existed in 9:2442(3). ⁵ Furthermore, in subsection 2 there was essentially repeated the suggested form of the attestation clause, including the verbiage "this _____ day of __________, 19__."

So, the "express requirement within our statute mandating an inclusion of a date," which the Gordon majority found lacking in the pre-1974 version, is now and has since 1974 been contained in the statute. The legislature's change in the law to require a date, after Gordon said that a date was not required, makes it perfectly clear that today "a statutory will must ("shall") be dated." The word "shall" is mandatory. La.R.S. 1:3. When a law is clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. LSA C.C. art. 13.

Proponents of the will in this case urge upon us policy reasons why a date is not necessary. Absent need to show an order of execution of two competing wills, or an attack upon the capacity of the testator (where the date and corresponding mental condition of the testator become relevant), the date of the will is irrelevant, or if the date is relevant, it is provable by extrinsic evidence dehors the will. They rely on the Succession of Gordon v. Bridges and Succession of Boyd, 306 So.2d 687 (La.1975). ⁶

Unfortunately for relators those policy reasons are more in the province of the Legislature than of this Court, and were presumably considered by the Legislature which, notwithstanding, passed Act 246 of 1974.

The sole remaining question is whether "the _____ day of February, 1984" is a date. With that language included in the will, was the will "dated"?

We long ago considered that issue in a case involving an olographic testament, Heffner v. Heffner, 48 La.Ann. 1089, 20 So. 281 (1896). In Heffner, as here, the will stated the month and year of execution, but the day of the month on which the will was executed was not given. Louisiana Civil Code article 1588 requires that an olographic will must be dated by the testator, and the issue was whether the recitation of the month and year alone constituted a date.

Noting that French commentators maintained that the inclusion of the day of the month of execution was essential with respect to wills executed pursuant to a corresponding article of the Napoleonic Code, we concluded that the will was invalid:

"The mandate of the Code is positive, without and purposely without, any qualification or exception. The will must be dated, and the month, without the day, is no date." 48 La.Ann. at 1090, 20 So. 281 (emphasis added).

While Heffner dealt with an olographic will, the reasoning of that case controls here. La.R.S. 9:2442 requires that a statutory will shall be dated, and does not qualify that requirement in any respect. The date of an event, be it a birth, a death, an anniversary or the execution of a will, is normally understood to encompass the day, month and year on which the event took place. See also Black's Law Dictionary (4th ed. 1968), which defines "date" as "[t]he specification or mention, in a written instrument, of the time (day, month and year) when it was made."

Unless and until the Legislature says otherwise, we are unwilling to depart from our conclusion in Heffner that "the month, without the day, is no date." If the month without the day were considered to be a date, then presumably the year without the month and day would also have to be considered a date, and thus a will would be considered dated if nothing more than the year of execution were recited. If such were the case, the statute's requirement that the will must be dated would not be attributed its plain and ordinary meaning. We are unwilling to disregard an express statutory requirement in this fashion, and instead adhere to the sound reasoning of the Heffner decision.

Relators rely on the dissenting opinion in Succession of Raiford, 404 So.2d 251, 254 (La.1981), which expressed the view that the provision of the year of execution alone should be sufficient to uphold an olographic will if the year recited "provides a reference point" that allows all attacks on the will to be resolved. The view articulated in the dissent is contrary to Heffner, which held that a date, rather than a "reference point" is required. Therefore, we do not follow that dissenting view here.

The proponents of the will also cite Conner v. Motors Insurance Corp., 216 So.2d 555 (La.App.1968), for the proposition that the meaning of the word "date" is "the time at which an event occurs" or "a given point of time," rather than "the calendar day on which it occurs." Id. at 557 (emphasis by the Court). Conner involved a dispute over the scope of coverage afforded by an automobile insurance policy, rather than a dispute over the provisions of a will. Specifically, the policy stated that it would insure a newly acquired vehicle if the policy insured all other automobiles owned by the insured "on the date of such acquisition." On the day that the new vehicle was acquired, the insured owned one vehicle that was covered by the policy and one that was not. He traded the non-covered vehicle for the vehicle he acquired. After the acquired vehicle was damaged in an accident, the insurer contended that it was not covered by the policy because the insured had owned a non-insured vehicle "on the date" of acquisition. There was no question that the insured had owned a non-covered car on the day of acquisition, that being the car which he traded for the acquired vehicle. However, the Court interpreted the word date in the insurance policy to refer to a point in time narrower than a single day. Instead, "date" referred to the actual moment of acquisition, at which point the insured did not own a non-covered car because he had just traded the non-covered car for the newly acquired vehicle.

It is doubtful that the language in Conner regarding the meaning of the word "date" in the context of an automobile insurance policy has any relevance here. However, if anything, the reasoning of Conner is adverse to any suggestion that the recitation of a month and year constitutes a date. According to the reasoning used in Conner, a date was defined as an even smaller unit in time than a day. It is difficult to see how that mode of reasoning in any way strengthens the position taken by the proponents of the will.

If in fact a will is dated, we have held that extrinsic evidence may be considered to resolve ambiguity regarding the date written by the testator. See e.g., Succession of Boyd, 306 So.2d 687 (La.1975) (date of execution recited as "2-8-72"). However, when as here, a date is not recited in the first instance, the statutory requirement has not been satisfied and extrinsic evidence should not be considered. Heffner, 48 La.Ann. at 1098, 20 So. 281. This case does not involve a will which contains an ambiguous date, but one which contains no date at all.

Decree

For the foregoing reasons, the judgment of the court of appeal is affirmed.

AFFIRMED.

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