Renfrow v. McCain

• Decision Date: 25 May 1936
• Docket Number: 33861
• Citation: 168 So. 753,185 La. 135
• Court: Louisiana Supreme Court
• Parties: RENFROW et al. v. McCAIN

168 So. 753

185 La. 135

RENFROW et al. v. McCAIN

No. 33861

Supreme Court of Louisiana

May 25, 1936

Appeal from First Judicial District Court, Parish of Caddo; T. F Bell, Judge.

Suit by Mrs. Nellie McCain Renfrow and others against Floyd W. Dodds McCain. From an adverse judgment, plaintiffs appeal.

Affirmed.

Olin D Moore, of Many, and Malcolm E. Lafargue, of Shreveport, for appellants.

Harry V. Booth and H. B. Lingle, both of Shreveport, for appellee.

FOURNET Justice. O'NIELL, C. J., absent.

OPINION

FOURNET, Justice.

This is an action by the collateral heirs of G. M. McCain, deceased, to have declared null and void his nuncupative will by public act and the proceedings probating the will on the following grounds:

First. The will was not written by the notary public as it was dictated.

Second. The testator lacked testamentary capacity at the time of the confection of the will due to the fact that he was feeble, and in a comatose condition as the result of his illness.

Third. The signature to the will is not the signature of the testator.

The defense is a general denial. There was judgment on the merits in favor of defendant, dismissing plaintiffs' suit. The plaintiffs have appealed.

We shall dispose of the grounds of attack made on the will in the order hereinabove enumerated.

The first attack is leveled at the formalities required in the execution of a nuncupative will by public act in that they were not followed and that the will does not express the exact wishes of the testator.

"There is no other formality in the execution of a nuncupative will by a public act than those enumerated in Revised Civil Code, art. 1578." Succession of Murray, 41 La.Ann. 1109, 7 So. 126, 128. And it is the well-settled jurisprudence of this state that the mere fact that a nuncupative will by public act contains words which were not dictated by the testator will not affect the validity, when it is shown that the notary lucidly expressed the testator's intentions, and that he faithfully recorded those intentions in the will. Martha A. Starrs v. W. R. Mason, 32 La.Ann. 8. See, also, Raphael Landry et al. v. Eugenie Tomatis et al., 32 La.Ann. 113; Succession of Cauvien, 46 La.Ann. 1412, 1416, 16 So. 309; Hennessey's Heirs v. Woulfe, 49 La.Ann. 1376, 1387, 22 So. 394; Rostrup v. Succession of Spicer, 183 La. 1087, 165 So. 307.

Counsel for plaintiff argued before this court and in brief that the witnesses to the will and others who were present when the will was executed testified that the testator, upon being asked by the notary what disposition, if any, he wanted made of his property after his death, stated that he first wanted his debts paid and the remainder of his estate, after the payment of $ 100 to a half-brother, John Compton, to go to the defendant, Floyd W. Dodds McCain, but none testified that the testator dictated that portion of the will making the defendant the executor of the will, with seizin and without bond, and appointing H. B. Lingle, attorney at law, to represent the estate and those to whom bequests were made in the will, and, therefore, the will is null and void.

A review of the evidence shows that there was not a single question propounded by either counsel for plaintiff or defendant as to whether or not those parts of the will were inserted without having been dictated by the testator. On the other hand, Mr. L. E. Plaisance and the defendant both testified that the notary wrote the will as it was dictated by the testator, and all the witnesses, who were present at the time of the execution of the will, stated that after the will had been written, it was read aloud by the notary to the testator, and when asked by the notary whether the will expressed his wishes as dictated, his answer was that it did and he then signed it. The record is barren of any direct proof that the notary inserted those clauses in the will without having been dictated to him by the testator.

"The recitals of a nuncupative will by authentic act must be considered as proved until disproved." Succession of Block, 131 La. 101, 59 So. 29, 30. The plaintiffs have signally failed to show that the clauses under attack were not dictated to the notary by the testator.

Another point raised under the first ground of attack was that the closing paragraph in the will reads: "Thus done, read and signed at my office in Caddo Parish, State of Louisiana, * * *" when in truth and in fact the will was executed and written while the testator was confined to his bed at the home of the defendant, several miles from Shreveport, where the notary's office is located. This counsel for plaintiffs contend strikes the will with nullity.

This court...