Succession of Killingsworth, s. 53128

• Decision Date: 24 September 1973
• Docket Number: Nos. 53128,53156 and 53171,s. 53128
• Citation: 292 So.2d 536
• Parties: Succession of Freddie Robertson KILLINGSWORTH. Mrs. Rome Schlater Johnston TUTTLE et al. v. Edward Hill SCHLATER et al.
• Court: Louisiana Supreme Court

Page 536

292 So.2d 536

Succession of Freddie Robertson KILLINGSWORTH.

Mrs. Rome Schlater Johnston TUTTLE et al. v. Edward Hill SCHLATER et al.

Nos. 53128, 53156 and 53171.

Supreme Court of Louisiana.

Sept. 24, 1973.

On Rehearing March 25, 1974.

Rehearing Denied April 26, 1974.

Charles H. Dameron, Currett, Hardin, Hunter, Dameron & Fritchie, Baton Rouge, applicants in 53128.

Robert J. Vandaworker, Taylor, Porter, Brooks & Phillips, Baton Rouge, applicants in 53171.

Byron R. Kantrow & Gerald L. Walter, Jr., Kantrow, Spaht, Weaver & Walter, Baton Rouge, for appellees Schlater, Appleton, Mitchell, Melton and others.

John D. Kopfler, John D. Kopler & Associates, Victor A. Sachse, Frank P. Simoneaux, Paul M. Hebert, Jr., Breazeale, Sachse & Wilson, Baton Rouge, for applicants in 53156.

CALOGERO, Justice.

This protracted litigation has been heard twice in the District Court had twice in the Court of Appeal. See Succession of Killingsworth, and Tuttle v. Schlater, 194 So.2d 331 (La.App.1st Cir., 1966); Succession of Killingsworth, and Tuttle v. Schlater, 270 So.2d 196 (La.App.1st Cir. 1972). Upon application for writs after the first Court of Appeal decision, we refused to grant, 250 La. 175, 194 So.2d 738 (1967). The matter is now before us because following the second decision of the Court of Appeal we granted writs. 273 So.2d 292, 293 (La.1973).

The proceedings which have heretofore transpired, the contentions asserted, disposition of those contentions and holdings of the various courts (evident from a reading of the cited opinions) will not be restated herein except to the extent necessary to discuss the issues presently before us.

For convenience in this opinion, we will refer herein to the following parties or factions as follows: Mrs. Leila Obier Cutshaw and W. P. Obier, Jr. are the legal heirs of Mr. W. P. Obier, (deceased attorney and Notary Public who executed the will of Mrs. Killingsworth) and will be referred to hereinafter as the Obier heirs; Mr. W. B. Middleton, Jr. is an attorney who had formerly been the law partner of Mr. Obier; St. Paul Fire and Marine Insurance Company is the professional liability insurer of Mr. Obier, Mr. Middleton, and the former law partnership designated Obier & Middleton and will be referred to as St. Paul; Mrs. Rome Schlater Johnston Tuttle, Mrs. Mary Lewis Johnston Rowe, Mrs. Winona Johnston Bell, Mrs. Nona Mae Bronner Miller and Mrs. Barbara Jean Bronner Norton are legal heirs of Mrs. Freddie Robertson Killingsworth, who were designated as the principal legatees under the will of Mrs. Killingsworth (all of the foregoing parties are proponents of the will, validity of which is at issue in this litigation); Edward Hill Schlater, Sarah Elizabeth Schlater Appleton, Mary Blewett Mitchell, Frances S. Melton, Mildred T. Landers, Frederick M. Schlater, Thomas Wessinger Schlater, Mary Hughes Schlater Stumb, John Day, Mary Alice Day, and Frank V. LeBlanc are other legal heirs of Mrs. Killingsworth (principally nieces and nephews) who were not designated as legatees in the will of Mrs. Killingsworth (they are opponents of the will). Mrs. Tuttle, et al, will be referred to hereinafter as legatees.¹ Edward Hill Schlater, et al, will be designated hereinafter as legal heirs.²

The principal contest in this litigation has to do with the validity of the will of Mrs. Killingsworth which was executed as a nuncupative will be public act before Mr. Obier on October 7, 1955.

When first confronted with the issue, posed by various exceptions, the trial court determined that the will would be valid even if typed by Mr. Obier's secretary. The judge therefore invited a motion for judgment on the pleadings, then rendered a judgment declaring the will valid.

On appeal from this judgment (on the pleadings) the Court of Appeal reversed, held that a will would be invalid for failure to comply with a requirement of Article 1578 of the Civil Code (that it be 'written' by the Notary) if it were in fact typed by the Notary's secretary.³ Upon application for writs to this Court we denied, with the comment that 'we find no error of law in the judgment complained of.' 250 La. 175, 194 So.2d 738 (1967).

After remand the case was tried on the merits. The trial court admitted evidence over objection, concerning the confection of the will, and concluded that the will was indeed invalid because it had been typed by Mr. Obier's secretary, and because such did not constitute 'written' by the Notary as required by Article 1578 of the Civil Code. On appeal the First Circuit Court of Appeal affirmed the judgment in this respect, holding the will invalid. There were and are, of course, incidental issues for decision which will be discussed more fully hereinafter. We granted writs on application of Mr. Middleton and St. Paul (#53,128 on our docket) the legatees (#53,156) and the Obier heirs (#53,171), all of them proponents of the will.

The specific supplemental issues for decision by this Court will, as indicated, be considered hereinafter. At the outset however, we must dispose of the primary issue in this litigation which has to do with the validity of the will under attack. The Obier heirs, Mr. Middleton, St. Paul and the legatees, while denying that the will was typed by Mr. Obier's secretary, urge that we hold the will valid even assuming that it had been so typed.

They contend that the disposition of these issues by the Court of Appeal's first decision was not final because the case then was on appeal only on exceptions and motion for judgment on the pleadings, the case since then having been fully tried on the merits. They also take the position that our earlier refusal to grant writs does not bar our reconsideration of the issue (that a secretary's typing the nuncupative will by public act, if it be so found, strikes it with invalidity) because the earlier refusal does not constitute the 'law of the case'. In this regard they call our attention to Day v. Campbell-Grosjean Roofing and Sheet Metal Corp., 260 La. 325, 256 So.2d 105 (1972).⁴ Our present resolution of this issue, in effect affirming our earlier decision in refusing to grant writs, pretermits any need to consider whether we may properly rule contrary to the earlier decision.

Proponents of the will argue here, essentially as they did in 1967 (both before the Court of Appeal and on writ application to this Court) that the right of testamentary disposition is strongly provided by our law as a clear and distinct corollary of the right of property (Kingsbury v. Whitaker, 32 La.Ann. 1055, 1880); that statutory interpretation should carry out the general social purpose of legislation (22 La.L.Rev. 727); that there is a strong presumption of a will's validity where on its face all of the formalities of a nuncupative will by public act have been complied with (Succession of Watson, La.App., 157 So.2d 612, 1963 and Renfrow et al. v. McCain, 185 La. 135, 168 So. 753, 1936); that this Court's decision in Knight v. Smith, 3 Mart.O.S. 156 (1813), invalidating a nuncupative will by public act because there written by the Notary's clerk, is outmoded and inappropriate; and that Prudhomme v. Savant's⁵ validation of a nuncupative will by public act Typed by the Notary, in 1922, presages the 'logical' extension that typed by the secretary should be construed as written by the Notary, particularly since Article 1578 merely requires written by the Notary, not written 'by the hand of' as is required of the testator in an olographic testament (C.C. Art. 1588).

We find no more merit in these arguments than the Court of Appeal, and this Court, did, in 1967.

Civil Code Article 1578 requires that the nuncupative will by public act must be received by the Notary as dictated by the testator, 'and Written by the notary as it is dictated.' (Emphasis supplied) The statutory language is much too clear to permit the strained interpretation that 'written by' means, permissibly, authored by, or dictated to secretary by, the Notary.

Proponents' alternate contention on the will's validity (or primary contention depending on the emphasis) is that the will's witnesses cannot legally be heard 12 years after the will's confection, to dispute their own solemn attestation to the contrary, evidenced by their subscription under oath in the notarial act of October 7, 1955.

While we subscribe to this plausible principle as first enunciated in Succession of Beattie, 163 La. 831, 112 So. 802 (1926) and repeated in Talton v. Todd, 233 La. 146, 96 So.2d 327 (1957)⁶ we do not feel that our present holding is contrary, for two reasons.

First, both Beattie and Talton held that testimony impeaching the earlier solemn statement in the act was not itself sufficient to overcome the presumption of validity If not 'corroborated by independent facts or reasonable inferences.' In this case we agree, and have agreed, with the Court of Appeal, that the independent inference is supplied by use of the word 'revenue' rather than 'residue' where the latter rather than the former word was obviously and logically intended (and in fact used by both testator and notary, according to the testimony of one of the witnesses). The logical inference, of course, was that the legally untrained secretary rather than the attorney-notary had typed the inappropriate word 'revenue' and presumably therefore the entire will. (For a more elaborate discussion on this point see Court of Appeal discussion commencing at page 202, Vol. 270 So.2d) Finding that this independent inference permits us to entertain the witnesses' testimony, the essential inquiry (as to who in fact typed the will) is easily answered, by the uncontradicted testimony of Mr. Obier's secretary and one of the witnesses, that the secretary had typed the will. (Incidentally, while the third witness to the will, Mr. Desobry, said that he couldn't remember who did the typing he was under the 'impression' that Mr. Obier did Not type it.)

A second...