Succession of Koerkel
| Decision Date | 12 April 1965 |
| Docket Number | No. 6384,6384 |
| Citation | 174 So.2d 213 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | Succession of Elizabeth Kieran KOERKEL. |
Morris B. Phillips, New Orleans, for appellant.
Rodrigue & Edwards, Covington, Richard K. Simoneaux, New Orleans, for appellee.
Before ELLIS, LOTTINGER, LANDRY, REID and BAILES, JJ.
The present appeal is by the opponent of the will of decedent Elizabeth Kieran Koerkel from the judgment of the trial court permitting introduction of extrinsic evidence to establish the certainty of date of said decedent's olographic last will and testament and admitting same to probate.
Decedent's demise occurred October 23, 1959, in Orleans Parish. Thereafter decedent's niece, Illeen Bloecher Dellinger, presented to the Civil District Court, Orleans Parish, and petitioned for the probate thereof as decedent's last will and testament a document written entirely in the handwriting and purporting to be the olographic last will and testament of decedent naming the aforesaid proponent as executrix and universal legatee of the alleged testatrix. Max Koerkel, decedent's surviving spouse, excepted to the jurisdiction of the Orleans Parish Court on the ground decedent was domiciled in another parish. The District Court, Orleans Parish, overruled opponent's exception to the Court's jurisdiction and probated the will. Opponent then appealed to the Court of Appeal, Fourth Circuit, which tribunal overruled the judgment of the District Court upon the finding decedent was in fact domiciled in St. Tammany Parish at the time of her death. (See Succession of Koerkel, La.App., 144 So.2d 690.)
Upon finality of the judgment of the Court of Appeal, Fourth Circuit, annulling the probate of decedent's will in the District Court, Orleans Parish, decedent's aforesaid surviving spouse, alleging the existence of the reputed will but simultaneously asserting its invalidity for lack of formal requisites, opened decedent's succession in St. Tammany Parish as an intestate succession, and applied for appointment as administrator.
Subsequently on November 19, 1963, Mrs. Dellinger intervened in the succession proceedings filed in St. Tammany Parish, presenting the purported will and praying for its probate therein. On the same day, opposition to the will was filed by Alvin J. Koerkel, alleging the death of Max Koerkel on March 4, 1963, and further averring said opponent to be the universal legatee and executor of the already probated will of Max Koerkel, deceased, and in such capacity, entitled to inherit the estate of decedent Elizabeth Kieran Koerkel considering decedents Max and Elizabeth Kieran Koerkel left no surviving ascendants or descendants and Max Koerkel therefore inherited the estate of his predeceased spouse.
In essence the present opposition is based on the contention that the testament lacks a proper date and therefore does not comply with the provisions of LSA-C.C. Article 1588 which requires that an olographic last will and testament be 'entirely written, dated and signed by the hand of the testator.'
The purported testament is dated 'August 17' followed by the figures '19' and two additional and unintelligible ciphers which the proponent contends represent the figures '51'. On this basis Mrs. Dellinger argues the year of the date line is '1951'. Proponent offered extrinsic evidence to 'assist the Court in ascertaining the certainty of the date', and our learned brother below admitted same over opponent's objection. In this regard we note the record itself does not contain the objection, but counsel for both parties concede the objection was timely made, and the trial court's reasons for judgment appearing in the record substantiate introduction of such evidence notwithstanding opponent's objection that extrinsic evidence is inadmissible to cure a defect in the form of an olographic last will and testament.
In his reasons for judgment, our learned brother below noted that the jurisprudence on the question at issue is somewhat uncertain. Believing, however, an exception exists with regard to specimens of the testator's handwriting since 'such evidence does not tend to explain anything, and certainly could not alter or change the will in any way,' he ruled the extrinsic evidence admissible, citing Succession of Wenling, 172 La. 673, 135 So. 21, as authority for the exception to the rule against admission of extrinsic evidence in matters pertaining to probate of testaments.
Before proceeding to a discussion of the jurisprudence on the point at issue, we note judicial expressions of dissatisfaction with the strict application of technical rules governing formality of wills. We particularly note the obiter dicta of our brothers of the Fourth Circuit in the recent three Judge panel decision rendered in Succession of Mayer, La.App., 144 So.2d 896, in which our learned colleague, Judge Hardy, as organ of the Court admittedly indulges in 'a gratuitous elaboration of what we think would be a more justified, though contrary, determination.' The opinion in Succession of Mayer, supra, suggests that LSA-C.C. Article 1588 requires only that the instrument be dated, and imposes no requirement of certainty as to date. However, recognizing the issue to be settled by the Supreme Court in Succession of Beird, 145 La. 756, 82 So. 881, 6 A.L.R. 1452, and reaffirmed in Succession of Mutin, 232 La. 416, 94 So.2d 420, our brothers of the Fourth circuit held extrinsic evidence inadmissible to establish the date of a slash dated testament. The aforesaid panel opinion of the Court of Appeal, Fourth Circuit, is in apparent agreement with the three judge panel of this court which decided Succession of Gaudin, La.App., 140 So.2d 384, wherein the view was expressed that uncertainty of date should invalidate a will only where the date is of factual importance such as where there is more than one will, or the capacity of the testator (LSA-C.C. Articles 1475--1478), or the caducity or revocation of the testament (e.g. LSA-C.C. Articles 1696, 1705) may depend upon the date of confection.
However, appealing this liberal view may first appear, and notwithstanding any inclination of our own to concur therein, we nevertheless are cognizant that we must decide the issue in the light of certain pronouncements of our own Supreme Court which we acknowledge to be binding upon us. If any principle in this most vexatious field of law is settled by the jurisprudence, it is the rule that if any part of the date appearing on an instrument purporting to be an olographic testament is doubtful or uncertain, whether as to the day, month or year, the effect of the incertitude or doubt about the date is the same as if the instrument bore no date at all. Succession of Curtis, 149 La. 487, 89 So. 629; Succession of Wenling, 172 La. 673, 135 So. 21; Succession of Mutin, 232 La. 416, 94 So.2d 420. We hasten to add, however, that this question is quite distinct from the more unsettled problem whether such certainty must appear independently of any extrinsic explanation or elaboration, because, as we appreciate the jurisprudence, those cases which permit introduction of extrinsic evidence do so solely for the purpose of establishing the certainty of the date.
Whether the requirement of a certain date is illogical in those instances wherein the precise date of the testament is of no relative importance, is not, we believe, a proper subject for judicial consideration inasmuch as the formal requirements of the various types of will established by the legislature are to some degree patently arbitrary and must be rigidly adhered to in all cases even when the legislative reason therefor is not readily evident. The legislature, possessing the power to impose such conditions as it may see fit, respecting the form and manner of transferring property mortis causa, need not declare the reasons for its requirements so long as they contravene no applicable constitutional concept. A requirement valid on its face and violative of no provision of constitutional law is binding upon the courts who are powerless to inquire into the reasonableness thereof. Irrespective of the illogicality attending the requirement, under the circumstances shown, the courts are bound to enforce the provision, the irrationality thereof being a matter solely within the legislative discretion.
The question of admissibility of extrinsic evidence to establish with certainty or explain the date of a testament offered for probate, has been most often raised in those instances wherein the testator has undertaken to express the date in figures rather than in writing, including 'figures punctuated with virgules', commonly known today as 'slash-dates', and figures punctuated with periods.
In Succession of Beird, 145 La. 756, 82 So. 881, the Supreme Court was confronted with a 'slash-date' olographic will dated '9/8/18.' The Court expressly held such a date uncertain and insufficient. In also holding extrinsic evidence inadmissible to determine the testator's intention in so expressing the date of his will, the court stated:
In determining the slash-date ambiguous and uncertain, the court in Succession of Beird, supra, so concluded on the ground that a variance in custom and usage existed with regard to the order of designating the day and month when dating an instrument by the 'slash-date' method. Subsequent to ...
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