Succession of Killingsworth, 6783

• Decision Date: 21 November 1966
• Docket Number: No. 6783,6783
• Citation: 194 So.2d 331
• Parties: Succession of Freddie Robertson KILLINGSWORTH. Mrs. Rose Schlater Johnston TUTTLE v. Edward Hill SCHLATER et al.
• Court: Court of Appeal of Louisiana — District of US

Page 331

194 So.2d 331

Succession of Freddie Robertson KILLINGSWORTH.

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

No. 6783.

Court of Appeal of Louisiana, First Circuit.

Nov. 21, 1966.

Writ Refused Feb. 3, 1967.

Rehearing Denied Dec. 28, 1966.

Byron R. Kantrow of Kantrow, Spaht, Weaver & Walter, Victor A. Sachse, of Breazeale, Sachse & Wilson, Charles H . Dameron, of Durrett, Hardin, Hunter, Dameron & Fritchie, Robert J. Vanderworker, of Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for appellant.

Kopfler & Causey, Hammond, Middleton & Templet, Plaquemine, for appellees.

Before LANDRY, BAILES, and ELLIS, JJ.

ELLIS, Judge.

Appellants in these cases seek to have reversed a judgment rendered pursuant to a motion for judgment on the pleadings which was filed herein by the plaintiffs. Under the terms of Article 965 of the Code of Civil Procedure, we are limited in this case to a perusal of the pleadings, and must assume as true all allegations of the petitions not denied by defendant, and all well pleaded allegations of the answer. The operative facts, as revealed by the pleadings, are essentially as follows:

Mrs. Freddie Robertson Killingsworth died in Iberville Parish on July 19, 1961 leaving surviving her the following collateral heirs, each having the proportionate interest in the estate shown opposite his name:

                Edward Hill Schlater            1/8
                Sara Elizabeth Appleton        1/32
                Mary Blouett Mitchell          1/32
                Frances S. Melton              1/32
                Mildred T. Sanders             1/32
                Fredrick M. Schlater           1/12
                Thomas Weissinger Schlater     1/24
                Mary Hughes Schlater Stumb     1/24
                John Day                       1/24
                Mary Alice Day                 1/24
                Nona Mae Bronner Norton        1/16
                Fred LeBlanc                    1/8
                Rome Schlater Johnston Tuttle  1/12
                Winona Johnston Bell           1/12
                Mary Lewis Johnston Rowe       1/12
                

She also left a will, in nuncupative form by public act, executed before W. P. Obier, an Iberville Parish Notary Public, on October 7, 1955.

It is to be noted that only five of the legal heirs, who would otherwise share three eighths of the estate, are included in the will, along with a number of special legatees who would otherwise be strangers to the succession. The latter include Mr. Obier, the Notary Public who received the will, who was bequeathed the sum of $2000.00. Mr. Obier predeceased the testator.

Various pleadings were filed in the succession proceeding which put at issue the validity of the will and the possible liability of the heirs of Mr. Obier, his law firm Obier and Middleton, his law partner, W. B. Middleton, Jr., and their professional liability insurer, St. Paul Fire and Marine Insurance Company, in the event the will should be declared invalid.

In addition to the pleadings in the succession proceeding, a suit for a declaratory judgment was filed by the proponents of the will, in which all of the same points are put at issue by pleadings similar to those in the succession proceeding.

The allegations of the answer which attack the validity of the will set forth two bases: first, that the bequest to the notary who received the will and who predeceased the testatrix strikes the entire will with nullity; and second, that the will was typewritten by one of the witnesses, one Lorraine Melancon, from the dictation of Mr. Obier, and not by the notary himself.

The matter came before the District Court for hearing on a number of exceptions which had been filed by the Obier heirs, St. Paul and Middleton. All of these exceptions were overruled, but in the course of his opinion, the trial Judge rendered an opinion that the will was valid and invited the filing of a motion for judgment on the pleadings. Such a motion was promptly filed by the proponents of the will, and maintained by the Court. The judgment declared the validity of the will and ordered the distribution of the estate in accordance with its terms. It also dismissed as of nonsuit the demands against the Obier heirs, William B. Middleton, and St. Paul, and also the original petition for declaratory judgment filed in the succession proceedings.

Devolutive appeals were taken by the opponents of the will, the testamentary executor under the will, and the Obier heirs, Middleton and St. Paul.

The major point in this case, which has been most ably briefed and argued before this court, deals with the validity of a nuncupative will by public act which is not actually recorded by the notary public's own hand, whether it be handwritten or typewritten.

The formalities surrounding the execution of such a will are set forth in Articles 1578, 1579, and 1580 of the Civil Code as follows:

Article 1578

'The nuncupative testaments by public act must be received by a notary public, in presence of three witnesses residing in the place where the will is executed, or of five witnesses not residing in the place.

'This testament must be dictated by the testator, and written by the notary as it is dictated.

'It must then be read to the testator in the presence of the witnesses.

'Express mention is made of the whole, observing that all those formalities must be fulfilled at one time, without interruption, and without turning aside to other acts.'

Article 1579

'This testament must be signed by the testator; if he declares that he knows not how, or is not able to sign, express mention of his declaration, as also of the cause that hinders him from signing, must be made in the act.'

Article 1580

'This testament must be signed by the witnesses, or at least by one of them for all, if the others can not write.'

Article 1595 provides as follows:

'The formalities, to which testaments are subject by the provisions of the present section, must be observed; otherwise the testaments are null and void.'

This point was considered by the Supreme Court of this state over 150 years ago in Knight v. Smith, 3 Mart. (O.S.) 156 (1813), in which case an attack was made on the validity of a nuncupative will by public act on the ground, among others, that it was written by the notary's clerk rather than the notary himself. In that case, the Court, in finding the will invalid, said:

'The law which makes it the duty of the notary to write the will is not only clear in its expressions--it is also clear in its object. The legislature has been unwilling to trust any body else but the notary with the sacred function of writing a will--a function which, in unfaithful or negligent hands,...