Succession of Lefort
| Decision Date | 07 February 1916 |
| Docket Number | 21636 |
| Citation | 71 So. 215,139 La. 51 |
| Court | Louisiana Supreme Court |
| Parties | Succession of LEFORT. SERIO et al. v. TRAINOR et al |
On Petition for Rehearing, March 6, 1916
(Syllabus by the Court.)
Where all parties to a suit enter into an agreement, which is entered upon the minutes of the court, to the effect that the judge may decide the case in clambers, during the vacation of the court, 'and shall grant an order of appeal, both suspensive and devolutive, to either party, fixing the return day and bond for either appeal, to have the same effect as if done in open court,' and the judgment is rendered, the order of appeal granted, and the appeal lodged in this court in accordance therewith, such appeal will not be dismissed on the ground that it was taken prematurely and before the expiration of the delay within which, ordinarily, a motion for new trial may be filed, the terms of the agreement authorizing the presumption that the right to file such motion was intended to be waived.
Executors whether testamentary or dative, are included within the meaning of the comprehensive language, 'or other administrators of successions,' as used in article 1059 of the Code of Pracice, and judgments appointing or removing them become provisionally executory when rendered, and are not subject to suspension by appeal.
The article of the Civil Code (1655) applies to the probate of a testament which is not opposed. But a different rule obtains when the probate of the testament is opposed ab initio on the ground that it is a fraud and a forgery. In such a case the denial of the genuineness of the testament removes the contest from the domain of article 1655 of the Code, and it presents an issue which must be determined under the rules which govern all contests involving the genuineness of a signature which is denied. Under such an issue the doors of justice are opened wide for the introduction of any legal evidence in accordance with all the forms which prevail in all contested facts or cases. The textual provisions of Civ Code, art. 2245, and Code Prac. art. 325, recognize the mode of testing signatures by a comparison of writing or by experts.
After all parties to a suit have announced that the testimony is closed, no party has a legal right to introduce further evidence; but the privilege of doing so may be granted by the court in its discretion and in furtherance of justice. The judgment of the court refusing to admit further evidence will not be reversed by this court unless it is manifestly erroneous and productive of injustice.
The declaration of two credible witnesses who attest that they recognize a testament as being entirely written, dated, and signed in the testator's handwriting, corroborated by the testimony of an expert in handwriting, and by the recitals of the will, and by other various extraneous facts, will prevail over the testimony of two witnesses, who swear that a part of the date was not written by the testator, unsupported by any other circumstances.
When a posterior testament does not expressly revoke a prior one, both must be executed, unless the last will tacitly revokes the first as a whole. When they conflict only in part, the provisions of the last will must prevail.
When a testator appoints as executor 'the priest of his church,' without naming him, the court will interpret his testament to mean the person who will be the priest at the time of the testator's death.
L. O. Pecot, of Franklin, for appellant Trainor.
Charles I. Denechaud, of New Orleans, Paul Kramer, of Franklin, and Foster, Milling, Saal & Milling, of New Orleans, for appellants Blenk and Serio.
Charles I. Denechaud, of New Orleans, and Paul Kramer, of Franklin, for appellee Rousseau.
McCloskey & Benedict, of New Orleans, and Borah, Himel & Bloch, of Franklin, for appellee O'Niell.
Caffery, Quintero & Brumby, of Franklin, for appellees Kramer and Sawyer.
H. D. Smith, of Franklin, curator ad hoc, for infant appellee.
O'NIELL, J., takes no part.
On Motion to Dismiss Appeal.
In December, 1914, Rev. James H. Trainor, a Catholic priest, formerly in charge of the church at Franklin, presented to the district court an instrument, purporting to be the last olographic will, executed in 1910, of Caroline Lefort, who had departed this life on November 29, 1914, which will contained, among others, the following disposition, to wit:
'I bequeath to the priest of this church the sum of two thousand dollars and appoint him executor of this will, without bond.'
The instrument was admitted to probate as the last will of Miss Lefort, the petitioner was confirmed as testamentary executor, and the taking of an inventory was ordered. In the discharge of that function, the notary discovered, among the papers in the residence of the decedent, another instrument, purporting to be an olographic will, executed in 1913, which contains, among others, the following provision, to wit:
'I appoint the pastor of this church administrator, without bond.'
At the date of the death of the decedent, Rev. J. H. Trainor had ceased to be the pastor of the Catholic church at Franklin, and had been succeeded by Rev. J. J. Rousseau, and that gentleman, together with Sam Serio, Rt. Rev. Jas. H. Blenk, the Church of the Assumption, and Mrs. Caroline Levy, persons who are named in the instrument so described, presented that instrument to the court as the last will of the decedent, and prayed that it be so recognized; that Rev. J. J. Rousseau be confirmed as executor, and that the other petitioners be recognized as legatees. They further prayed, in the alternative, that, should the court hold the instrument first presented to be the last will of the decedent, it should set aside its order confirming Rev. J. H. Trainor, as executor, and substitute, in his place, Rev. J. J. Rousseau, as the then pastor of the church to which both of the instruments are conceded to refer. A litigation then ensued between the legatees named in the two instruments, respectively, and the former and present pastor, and the case was submitted for adjudication in June, 1915, after which, on July 16, the following entry was made upon the minutes of the court, to wit:
On July 27th (during the vacation) the court handed down its opinion and decree, rejecting the demand for the recognition of the document last presented as the will of the decedent, but setting aside the order confirming Rev. J. H. Trainor as executor of the instrument first presented, and recognizing and confirming the Rev. J. J. Rousseau in that position; and, there was an order, made at the same time, granting 'to any plaintiff or defendant' an appeal, both suspensive and devolutive, returnable to this court on or before September 20th on the furnishing of a bond in the sum of $ 250. The parties cast -- that is to say, Rev. J. H. Trainor, Sam Serio, Rt. Rev. J. H. Blenk, and the Church of the Assumption -- availed themselves of the order so made, and lodged their appeal in this court on September 15th, and, thereafter, on September 18th, Rev. J. J. Rousseau filed the motion, which we are now to consider, to dismiss the appeals, on the ground that they were taken prematurely and before the expiration of the delay for the filing of motions for new trial, and as to the appeal of Rev. J. H. Trainor, in so far as it operates suspensively on the further ground that he was not entitled to a suspensive appeal. That gentleman has filed an answer to the motion, to which he attaches a copy of the minutes of the district court, of September 21st, showing that, upon that day, the court overruled a motion for new trial which had been filed, on July 29th, in behalf of Sam Serio, Rt. Rev. James H. Blenk, Archbishop of New Orleans, the Church of the Assumption, Rev. J. J. Rousseau, and Mrs. Caroline Levy, the reasons assigned by the judge for the ruling so made being that he had rendered the judgment in vacation and granted the appeals in conformity to the agreement of all parties, entered upon the minutes of the court on July 16th, and that he did not consider that the matter of the motion for new trial was any longer within his jurisdiction.
The proceedings on the motion for new trial took place after the transcript of appeal had been lodged in this court, and are not before us for consideration, but the agreement as to the rendition of the judgment and the granting of the appeals is to be found in the transcript; and, as the action of the trial judge was in strict conformity thereto, we are of opinion that the motion to dismiss the appeals, as premature is without merit. It is, of course, possible that the mover herein, in becoming a party to the agreement, made a mental reservation, to the effect that the judge should grant the appeal only after the litigants should have exercised their right to apply for a new trial, but there is no intimation of such reservation in the entry upon the minutes, and the mover seems to stand alone in claiming that advantage, since the judge and all the other litigants have interpreted the entry to mean what the language imports, viz., that, in agreeing that the judgment should be handed down and appeals granted, during vacation the parties in interest waived the right to move for a new trial, the reservation or exercise of which right would necessarily have carried the case...
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