Succession of Hernandez
| Decision Date | 18 October 1915 |
| Docket Number | 21581 |
| Citation | 138 La. 134,70 So. 63 |
| Court | Louisiana Supreme Court |
| Parties | Succession of HERNANDEZ |
Rehearing Denied November 15, 1915
(Syllabus by the Court.)
An action to annul a will on the ground of fraudulent suggestions or 'undue influence' or 'captation' is repelled by the plain text of article 1492 of the Civil Code.
An alleged contemporaneous verbal agreement, between the testatrix and her husband, the universal legatee, that he would hold the estate for the sole use and benefit of her children, is null and void, as verbal testaments are prohibited by article 1576 of the Civil Code.
A general allegation that a will is void both under the laws of the state where made and of the state of the domicile of the testatrix states merely a conclusion of law, and disloses no cause of action.
Dart Kernan & Dart, of New Orleans, for appellant.
McCloskey & Benedict, of New Orleans, for appellee.
The succession of Grace Norton Hernandez was opened in this state on the petition of Walter Hernandez, the surviving husband, which alleged, in substance:
That Mrs. Hernandez died in the city of New Orleans on December 4, 1912, her legal domicile having been that of petitioner, her husband, in Brooklyn, New York City.
That Mrs. Hernandez left a last will and testament, dated October 28th, made in Brooklyn, in the state of New York, which said will was offered for probate in the Surrogate Court of Kings County, N. Y., on December 10, 1912, and the said Walter Hernandez, named as executor in said testament, prayed for confirmation as such.
That the probate of said will was opposed by Walter Hernandez's daughter, Grace Hernandez, wife of William F. Voorhies, of the city of New Orleans, and his minor children, Walter Hernandez and Juanita Hernandez, and, after due contradictory proceedings had, said Surrogate Court, by decree of April 4, 1914, admitted said will to probate and confirmed said Walter Hernandez as executor thereunder.
That the said opponents prosecuted an appeal or writ of error to the Appellate Division of the Supreme Court of the State of New York, and by final decree therein rendered on October 3, 1914, the appeal so taken was dismissed; said appeal having been abandoned by consent. That the foregoing facts more fully appeared from an exemplified copy of the proceedings had in said courts annexed to the petition as part thereof.
That the petitioner prayed that the aforesaid last will and testament of his deceased wife, Grace Hernandez, be filed, registered, and ordered executed, and that ancillary letters of executorship be granted to the petitioner thereunder.
The orders as prayed for were rendered and signed by the judge a quo on November 12, 1914.
The inventory taken under order of court embraced movables, appraised at $ 6,920.57, and real estate, appraised at $ 12,500; total, $ 19,420.57.
Walter Hernandez protested against the inclusion of any movables in the inventory, because the same were subject to the jurisdiction of the aforesaid Surrogate Court of New York, and formed no part of the decedent's succession in the state of Louisiana; also protested against the inclusion of certain securities in the names of Jacob B. Harrison and Mrs. J. B. Harrison, the latter having become the wife of the said Walter Hernandez.
Some of the heirs, through counsel, protested against the alleged exclusion of certain movables from the inventory, and more especially of $ 90,000 of jewelry, coupons, stocks, and bonds removed from the bank box belonging to the estate of the decedent.
Walter Hernandez duly qualified as executor by taking the required oath, and giving bond and security in the sum of $ 24,300, conditioned according to law.
The litigation now on appeal before this court was initiated on April 10, 1915, by the filing of the petition of Mrs. Grace Hernandez, wife of William F. Voorhies, seeking to annul the said will of the decedent on numerous grounds.
Defendant excepted to the petition on the ground that same sets forth no legal right or cause of action.
After a hearing, the judge a quo rendered judgment on the exception, as follows:
'It is ordered, adjudged, and decreed that said plaintiff do within ten days from this date amend article 5 of her petition by alleging in what particulars the will in question is not executed according to the laws of Louisiana and is not valid in form as a Louisiana will; by alleging dispositions of said will, if valid, cannot be enforced in Louisiana; and by alleging in what particulars said will is void under the laws of New York and of Louisiana.
'It is ordered, adjudged, and decreed that the averments in articles 6 and 7 of said petition disclose no cause or right of action, and that plaintiff's demand for annulling said will in so far as said demand is based upon said averments be dismissed.'
Plaintiff refused to amend her petition, and appealed.
Plaintiff's voluminous petition appears in the margin.
Paragraph 3 of the...
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