Stewart v. Branch

• Citation: 250 So.2d 474
• Decision Date: 30 June 1971
• Docket Number: No. 8419,8419
• Parties: Fannie Schilling STEWART et al. v. Robert L. BRANCH.
• Court: Court of Appeal of Louisiana (US)

Page 474

250 So.2d 474

Fannie Schilling STEWART et al. v. Robert L. BRANCH.

No. 8419.

Court of Appeal of Louisiana, First Circuit.

June 30, 1971.

Rehearing Denied Sept. 10, 1971.

L. Barbee Ponder, Jr., Amite, for appellants.

Haley M. Carter, Franklinton, for appellee.

Before LOTTINGER, SARTAIN and TUCKER, JJ.

TUCKER, Judge.

This is an action to annul a statutory will drawn for Mrs. Ouida Schilling Branch on March 26, 1969, on the grounds, first, that it was null with respect to its preparation, confection and execution, and secondly that Mrs. Branch, the testatrix, was mentally incompetent to comprehend or appreciate the effects of her acts due to her allegedly advanced arteriosclerosis and resultant loss of memory, and, thirdly, that she had been unduly influenced in the making of this will.

Mrs. Branch died on September 14, 1969, due to causes other than her arteriosclerosis. She left no forced heirs, and her husband had predeceased her in October, 1968. The will, in which she left her entire estate to her husband's nephew, Robert L. Branch, was probated and filed on October 13, 1969. Subsequently, it was attacked by plaintiffs, her collateral heirs.

The attorney for the testatrix, Haley M. Carter, testified that he had previously prepared wills for Mrs. Branch and her husband, Wilber Branch, in 1961; that he had opened the succession of Mr. Branch after his death in 1968, and had had Mrs. Branch placed in possession of the property. During the course of completing her husband's succession, Mrs. Branch inquired about a new will, and Mr. Carter advised her to return when she decided what she wanted in the will. On March 26, 1969 she returned to Mr. Carter's office in the company of Mrs. Myrtis Knight Branch, mother of the universal legatee, for the purpose of getting her will prepared. Since Mr. Carter's secretary was not in the office on this particular afternoon, the attorney himself typed the will, a very brief document occupying about one-third of a legal sized sheet of paper. While Mr. Carter was preparing the subject will, David D. Vining, manager of the Baton Rouge Production Credit Ass'n in Franklinton, La., came to the attorney's office, as he often did on business. Mr . Vining agreed to act as a witness to the will; then Mr. Carter read the will in its brief entirety in the presence of the testatrix, Mrs. Branch, who had accompanied her and remained present throughout the proceedings, and Mr. Vining. Mrs. Branch expressed her satisfaction with the will, signed and executed it in the presence of the aforesaid witnesses and Mr. Carter as Notary Public. The witnesses, Mrs. Myrtis Branch and Mr. Vining, and the Notary, Mr. Carter, along with the testatrix, Mrs. Ouida Branch, all signed the will at that time in the presence of each other. The will was delivered to Mrs. Ouida Schilling Branch; she paid Mr. Carter for his services in cash, and he gave her a receipt.

The trial court found the will to be valid, and plaintiffs' suit was dismissed at their costs. From this judgment plaintiffs appealed.

The plaintiffs claim that this action of nullity, commenced in advance of the expiration of three months after the will was probated, results in the burden of proof that compliance with the formalities of R.S. 9:2442 continues to rest upon the defendant. The defendant, irrespective of where this burden lies, has adequately established and proved that the will under attack was in strict compliance with the formalities prescribed by R.S. 9:2442.

In opposition to the conclusion expressed in the preceding paragraph of this opinion, the appellants urge the nullity of the will due to the fact that Mr. Vining, one of the witnesses to the testament, testified that he did not know the testatrix, the other witness, Mrs. Myrtis Branch, nor did he remember the occasion of his witnessing the will (Tr. 68--72). They further aver that Mr. Vining did not know what he was witnessing and that he did not hear the will read, and did not in fact know that the document was a will; that he was not present when it was signed by the other witness and only signed it as a favor to Mr. Carter, a good friend whose office was near his, and for whom he often acted as a witness; that he did not remember whether or not the testatrix signed the will before he did; and that he did not know the contends of the will. Mr. Vining did indeed testify the will was not read in his presence (Tr. 69), and answered evasively when asked if anyone signed the will before he did (Tr. 68--'She apparently signed it in order for me to witness it.'). However, it was establisher that the drawing and witnessing of the will took place over a year prior to the trial. Mr. Vining stated that he was in and out of Mr. Carter's office on occasion, but the court here notes that the will was so brief that it could easily have been read in a few minutes. Mr. Vining testified it was his true signature which appeared on the face of the will, and concluded that he must have witnessed it (Tr. 68). The other witnesses, Mrs. Myrtis Branch and Mr. Carter, the Notary, did testify, however, to the fact that the will was read in the presence of all the signators, including the testatrix, and that all parties signed in the presence of each other. Because of the positive testimony by the two witnesses and the acknowledgment by the third that his signature was valid, the court is constrained to hold that Mr. Vining simply forgot a brief occasion, unimportant to him, which had occurred more than a year previously. From a careful analysis of all the evidence we find, as did the learned trial judge, that the will was prepared, confected and executed under the direction of the testatrix, Mrs. Branch; that the will was read by the Notary, Mr. Carter, to the testatrix and the two witnesses in the presence of the other parties, with Mrs. Branch signifying that the document was her...