Succession of Gaudin

• Citation: 140 So.2d 384
• Decision Date: 28 February 1962
• Docket Number: No. 5275,5275
• Parties: Succession of Joseph J. GAUDIN.
• Court: Court of Appeal of Louisiana (US)

Page 384

140 So.2d 384

Succession of Joseph J. GAUDIN.

No. 5275.

Court of Appeal of Louisiana, First Circuit.

Feb. 28, 1962.

Rehearing Denied April 3, 1962.

Certiorari Granted April 30, 1962; Dismissed on Joint Motion.

Kantrow, Spaht & Kleinpeter by Carlos G. Spaht, Baton Rouge, for appellant.

Breazeale, Sachse & Wilson by Victor A. Sachse, Baton Rouge, for appellee.

Before ELLIS and HERGET, JJ., and MILLER, J. pro tem.

MILLER, Judge pro tem.

Joseph J. Gaudin died on February 12, 1956, leaving an olographic will dated '9/12/55'. The proponent of the will is Miss Bobbye Clements, a niece of decedent, who was made universal legatee under the testament. The opponent is decedent's brother, Albert G. Gaudin, Sr., who contends that the will bears an uncertain date and thus is null under the provisions of Louisiana Civil Code Article 1588.

This court, for the second time, is called upon to consider the certainty of the date '9/12/55'. Initially the trial court, upon objection by opponent, refused to admit extrinsic evidence to determine whether or not the will was in fact dated September 12, 1955, as contended by proponent. Accordingly, the trial court, upon concluding that the date on the face of the will was uncertain, declined to probate the instrument. From this judgment proponent appealed to the Supreme Court of Louisiana, which court in 233 La. 235, 96 So.2d 500, transferred the case to the Court of Appeal, First Circuit. This court, in Succession of Gaudin, 98 So.2d 711, reversed the judgment of the trial court and remanded the case to permit introduction of extrinsic evidence for the purpose of proving, if possible, the month and day of the will with certainty. Following this judgment remanding the case, application for writs was made to the Supreme Court, which application was denied with two Justices dissenting.

On remand of the case to the trial court, over objection of counsel for opponent, the trial judge permitted counsel for proponent to introduce extrinsic evidence for the purpose of proving the certainty of the date. Following a hearing the trial court dismissed the opposition and sustained the position of proponent, holding that the will was dated September 12, 1955, and ordering it probated as the last will of decedent. Opponent has appealed from this judgment and the matter is now before this court. There are two issues to be resolved (1) Is extrinsic evidence admissible to prove the certainty of the date of an olographic will, and (2) If this evidence is admissible, has this date been proved with certainty.

We state at the outset that we are in complete agreement with our prior decision in this case to the effect that extrinsic evidence is admissible to prove the certainty of the date of an olographic will. However, inasmuch as this question is of paramount importance and counsel for both sides concern themselves almost exclusively with this issue in briefs and arguments, we are compelled to discuss this problem in detail.

In meeting the argument that extrinsic evidence is not admissible, we would be less than frank if we did not hold that the weight of jurisprudence tends to favor this position,--that is, that such evidence is not admissible. A landmark case in this respect is that of Heffner et al. v. Heffner, 48 La.Ann. 1088, 20 So. 281 (1896). This case deals with the probate of an olographic will which was dated as follows: 'This $ $ day of June, 1893'. In refusing to probate this will where the day of the month was entirely omitted, the court had this to say:

'That the olographic will must be entirely written, dated, and signed by the testator necessarily excludes proof aliunde of the essentials. The only evidence is the will itself. The testimony tendered to supply the deficiency in the will was properly excluded by the lower court.'

A distinction can be made between the Heffner case and the instant one, inasmuch as the Heffner case involved a missing date whereas the Gaudin case involves an uncertain date which can be made certain and which was not missing from the face of the will.

Without question, the Succession of Beird, 145 La. 756, 82 So. 881, 6 A.L.R. 1452 (1919), is the principal authority advanced by opponents to show that a slash date ('9/8/18') is uncertain and hence violative of the written, dated and signed requirements of LSA-C.C. art. 1588. In this case the Supreme Court concluded that the month and day as well as the century were uncertain. The court stated that the fundamental weakness in opponent's contention is that the court is called upon to supply from sources outside of the will something that does not appear on its face. Its decision was wrapped up with this reasoning:

'However, we have uniformly applied the rule of strict interpretation to wills, and to be valid, in the language of the Code, they 'must be entirely written, dated and signed in the hand of the testator.' It is hardly necessary to mention the reasons for this strictness, especially as to date, considering, as we must, that a person has the right to make as many wills as he chooses, and that the last, under the law, at least insofar as it may conflict with prior ones, has the effect of revoking their dispositions. The date, therefore, must be certain and beyond speculation. Tested by this rule, the document assailed here fails to meet the requirements of the law.'

We make no attempt to go into any hair-splitting distinctions in the Beird case, as such distinctions would serve no useful purpose, inasmuch as this issue was by and large squarely met and decided adversely to the proponent of the will. We point out that the present Supreme Court was likewise confronted with this question in this very same case (Succession of Gaudin, 98 So.2d 711) and by denying writs refused to review this court's decision that extrinsic evidence is admissible to prove the certainty of the date of an olographic will.

Citing the Beird case as authority, this court held in Succession of Lasseigne, 181 So. 879 (1938), that the date '12.10.1934' was uncertain and hence the olographic will was invalid. We went on to say that evidence aliunde the will cannot be admitted to prove a correct date or to interpret the date. We also pointed out that the Kron case, infra, which held that the century given in two figures was certain because the law presumes no man lives more than 100 years, did not reverse the Beird decision but merely modified it as to the certainty of the century, otherwise affirming it as to the uncertainty of month and day. Furthermore, we rejected the trial court's reasoning that the custom of sometimes putting day, month and year had changed, holding that it was unlikely custom could change is so short a time (from 1919 to 1934), and we found that there was no such change. We cannot help but note that in 32 Tulane Law Review 334 in a comment on our decision in the Lasseigne case and in particular the question of custom, the writer stated that our language suggested that 'a different result may be reached if the same case would arise today, since it has now become sufficiently settled in Louisiana that the digits before the first virgule represents the month'. We are constrained to agree with the observation by this writer and moreover we acknowledge that our present decision is inconsistent with our decision in Succession of Lasseigne. We do not choose to compound our error in the Lasseigne case by a like holding in the instant case.

In the Succession of Mutin, 232 La. 416, 94 So.2d 420, (1957), the Supreme Court held that the date 'Feb. 2/9/54' was a certain date on the face of the will. In so holding however, the court went on to say that when a date is uncertain the will is a nullity for a vice of form and extrinsic evidence is not admissible to show what date the testator intended. Since the court concluded that the date was certain without considering the extrinsic evidence, the ruling that extrinsic evidence was inadmissible was not necessary for the disposition of the case.

The two principal cases relied upon by proponents of the will are Succession of Lefort, 139 La. 51, 71 So. 215 (1916), and Succession of Kron, 172 La. 666, 135 So. 19 (1931).

The Succession of Lefort involved among other things, the question of whether or not the date of a will was 1913 or 1908. The question was a crucial one inasmuch as the testator had made a will in 1909. The date on the will was as follows: 'Franklin May 26 19 --1913'. Following the first '19' were the figures '13' which appeared to have been written over by the figures '08'. Over objection by opponents, proponents produced testimony by a handwriting expert to show that the figures '13' were made by the testator and the figures '08' by the hand of another.

The reasoning of the Supreme Court in the Lefort case contains a penetrating analysis of the question of admissibility of proof aliunde the will to prove the certainty of its date. The opponents of the probate of the will point up the question and the court answers it:

"Must the olographic testament speak for itself and express its date with certainty and precision upon its face, or may an uncertainty or doubt as to the date, appearing on the face of the instrument, be removed by testimony as to when the document was or must have been written?'

'We are all agreed upon the proposition that an uncertain date is equivalent to no date, and that a document with no date, or with an uncertain date cannot be a valid will. But the question at once arises, What is an uncertain date?

'There is a physical difference between a document without a date and one with an uncertain date. There is a legal difference between supplying a missing date, or any part of it, by facts outside of the will, and establishing certainty concerning an ambiguity or uncertainty or doubt in an existing date. The former cannot be done, because it is of the essence of the validity of a will that it be dated 'by the hand of...