Succession of Caprito v. Mayhew

• Decision Date: 07 November 1985
• Docket Number: No. 85-634,85-634
• Parties: SUCCESSION OF Salvador CAPRITO, a/k/a S. Caprito, Joseph T. Caprito, et al., Plaintiffs-Appellants, v. James MAYHEW, et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 243

478 So.2d 243

SUCCESSION OF Salvador CAPRITO, a/k/a S. Caprito, Joseph T Caprito, et al., Plaintiffs-Appellants, v. James MAYHEW, et al., Defendants-Appellees.

No. 85-634.

Court of Appeal of Louisiana Third Circuit.

Nov. 7, 1985.

Sanders & Owens, Alan Sanders, Orange, Tex., for plaintiffs-appellants.

Humphries & Humphries, Guy E. Humphries, Jr., Alexandria, for defendants-appellees.

Before GUIDRY, STOKER and KING, JJ.

STOKER, Judge.

HISTORY OF THE CASE

This litigation was initiated as an action to annul the probated testament of Salvador Caprito. The plaintiffs basically raised three issues: (1) whether the Louisiana court had jurisdiction to probate the will, (2) whether the testamentary formalities were adhered to, and (3) whether the deceased had the mental capacity to execute a will. The trial court held the will to be valid. On appeal we reversed the trial court and held that the district court of Rapides Parish lacked jurisdiction to probate the will. Succession of Caprito, 458 So.2d 588 (La.App. 3d Cir.1984). We did not address the merits of the case at that time. The Supreme Court granted the defendants' application for writ of certiorari and reversed our ruling. Succession of Caprito, writ granted, 462 So.2d 1242 (La.1985), reversed and remanded, 468 So.2d 561 (La.1985). The Supreme Court held the deceased, Salvador Caprito, was a Louisiana domiciliary at the time of his death, thus the court had jurisdiction to probate the will. The court remanded the case to us to consider the remaining issues involving the validity of the will and Caprito's mental capacity to execute the will.

The plaintiffs in this will contest are Marguerite Caprito Dial and Joseph T. Caprito, the niece and nephew of Salvador Caprito. The defendants and proponents of the will at issue are Gertrude Caprito Daily, represented by her daughter and duly appointed guardian, Helen Vaughn, and James C. Mayhew, a/k/a Noel Caprito, who are the daughter and son of the testator.

FACTS

The testator, Salvador Caprito, was born December 21, 1883, in Franklin, Louisiana, and died March 9, 1982, in Rapides General Hospital, Alexandria, Louisiana, at the age of 98. He was an unusual man who lived a rather solitary life. He amassed a substantial fortune during his life and while he lived a rather meager life, he made generous donations of huge amounts of money and valuable properties to persons and charities throughout his life. The latter part of his life, until he was in his nineties, was spent living in hotels with all of his belongings carried in a suitcase.

He had been married at one time to Annie Ehrhardt, later Mayhew. The marriage ended in divorce in Dallas, Texas, on December 14, 1915; however, there were two children born of the marriage. The defendant, Gertrude Caprito Daily was born during the marriage and the defendant, James C. Mayhew, a/k/a Noel Caprito, was born shortly after the divorce. Neither plaintiffs nor defendants had any contact with the deceased until he was an elderly man.

Nothing much is known about the decedent up until about 1955. He seems to have lived and conducted most of his business from 1955 to 1977 in Fort Worth, Texas. It was there in 1963 that William McKinney, an accountant, began keeping his books and assisting Salvador Caprito in handling his business affairs. In June, 1977, McKinney brought temporary guardianship proceedings against decedent and was named temporary guardian in July, 1977. At that time the testator was living with plaintiff J.T. Caprito in Franklin, Louisiana.

In October of 1977, Salvador Caprito executed a will in Texas, leaving his entire estate to the plaintiffs, Marguerite Caprito Dial and J.T. Caprito. In January, 1978, Mrs. Dial was named guardian over the person and estate of testator pursuant to the ruling of a Texas court in a permanent guardianship hearing held in December, 1977. Testator lived with Mrs. Dial until he fell and broke his hip in 1981. She was paid $891 per month to care for the decedent. This amount was later increased to $961.

Defendant Gertrude Caprito Daily's daughter, Helen Vaughn, applied to the court to replace Mrs. Dial as testator's guardian in April, 1978. The court granted the change in guardianship in June, 1978. She resigned in favor of her uncle, James C. Mayhew, in November, 1978. He remained the testator's guardian until testator's death in 1982. Mr. Mayhew had the testator moved to Hilltop I Nursing Home in Pineville, Louisiana in January, 1982, after hip replacement surgery in Lake Charles. On February 16, 1982, the testator executed a new will leaving his entire estate to his son and daughter, the defendants in this suit. Salvador Caprito died in Rapides General Hospital on March 9, 1982.

It is the will executed on February 16, 1982, which is at issue. The only questions which are before us for review concern the validity of the will and the mental capacity of the testator. Whether or not the formalities have been met in executing the will and whether or not the testator has the mental capacity necessary to execute a will are both questions of fact to be answered by the trial judge. It is well accepted jurisprudence that these factual decisions will not be disturbed unless they are clearly and manifestly erroneous. Succession of Barbe, 301 So.2d 711 (La.App. 3d Cir.1974). We find no error, thus we affirm.

FORMALITIES

The will was confected pursuant to LSA-R.S. 9:2443 which provides for a statutory will for those with sight impairment or those who are illiterate. The will contains a declaration by the testator that he could not read or sign his name because he had broken, lost or misplaced his prescription glasses. The requisite formalities are clearly stated and in 1982 when the will was executed read as follows:

"Sec. 2443. Statutory will for those with sight impairment or those who are illiterate

A. A statutory will may be executed under this Section by a person whose sight is impaired to the extent that he cannot read or who does not know how to read.

B. The statutory will shall be prepared in writing and shall be dated and executed in the following manner:

(1) The will shall be read aloud by the notary in the presence of the testator and three competent witnesses, and the witnesses shall follow the reading on copies of the will.

(2) After the reading, the testator shall declare or signify to them that he heard the reading and that the instrument is his last will and shall sign his name at the end of the will and on each other separate page of the instrument. If the testator cannot sign his name, he must so declare or signify to the notary in the presence of the witnesses and declare or signify the cause that hinders him from signing, and shall then affix his mark in the places where his signature is required.

(3) In the presence of the testator and each other, the notary and the witnesses shall then sign the following declaration, or one substantially similar: "Read aloud by the notary in the presence of the testator and each other, such reading having been followed on copies of the will by the witnesses, signed at the end and on each other separate page, (or if not signed by the testator, the statement of his declaration or signification that he cannot sign his name and of the cause that hinders him from signing) and declared or signified by testator, in our presence, to be his last will and testament, and in the presence of testator and each other we have hereunto subscribed our names on this __ day of __________, 19__."

C. A competent witness for the purposes of this Section is a person who meets the qualifications of Civil Code Articles 1591 and 1592, and who knows how to sign his name and to read the will as written and is physically able to do both.

D. The statutory will authorized by this Section may not be executed in braille or other similar mode of expression."

On the face of the will itself the formalities have been met. Plaintiffs seem to argue that the witnesses should have a complete and exact recollection of the events surrounding the execution of the will. Since the will was attacked within three months of the death of the testator, the burden of proving that the formalities had been met were on the proponents, defendants in this case, of the will. LSA-C.C.P. art. 2932. The trial judge correctly stated that it would be a ridiculously high burden to expect the witnesses to have a complete and independent recollection of every event which occurred at the signing of the will. Riedel, et al v. Sharp, 386 So.2d 1066 (La.App. 3d Cir.1980). All of the witnesses testified to the reading and signing of the will. They recognized the signatures and testified that they signed in each other's presence. The trial judge found "the evidence presented by defendants amply support a determination that the will was executed properly."

While the proponents in this case have the burden of proving that the formalities have been followed, their task is eased by a presumption in favor of the validity of testaments in general. In Succession of Kilpatrick, 422 So.2d 464 (La.App. 2d Cir.1982), writ denied, 429 So.2d 126 (La.1983), the court explained at page 475:

"However, even though the burden rests upon the proponents, validity of the testament is still presumed until the contrary is established. Proof of non-observance of formalities must be exceptionally compelling in order to rebut the presumption of validity of testaments. Succession of Staggers, 254 So.2d 289 (La.App. 4th Cir.1971); [writ not considered 254 So.2d 617 (La.1971) ] Succession of Dauzat, 212 So.2d 523 (La.App. 3d Cir.1968)."

In this case all three witnesses and the notary testified to the circumstances surrounding the execution of the will. The trial judge, after observing their attitude and demeanor, determined that the formalities had in fact been followed.

Plaintiffs also complained that the testator had not declared that he could not...