Succession of Papa
| Decision Date | 05 December 1966 |
| Docket Number | No. 2392,2392 |
| Citation | 192 So.2d 854 |
| Parties | Succession of Mr. Salvatore (Sam) PAPA. |
| Court | Court of Appeal of Louisiana — District of US |
John P. Nelson, Jr., and Frank S. Bruno, New Orleans, for plaintiffs-appellants.
Alcide J. Weysham, New Orleans, for defendant-appellee.
Before SAMUEL, HALL and BARNETTE, JJ.
Mrs. Francesca Papa Zuccarello, a sister of decedent, and Mrs. Antoinette Papa Monteverde, a niece, daughter of a predeceased brother, filed this suit seeking to annul the last will and testament of Salvatore (Sam) Papa. From a judgment upholding the will and dismissing their suit Mrs. Antoinette Papa Monteverde prosecutes this devolutive appeal. Mrs. Zuccarello did not appeal it being conceded that she is too old and senile to take part in the proceedings.
Salvatore (Sam) Papa died in the City of New Orleans where he had his residence and domicile, on April 6, 1965. At the time of his death he was approximately 87 years old. He had never married and left no surviving descendents or ascendants. The last will and testament of the deceased, under attack in these proceedings, is a nuncupative will by public act before Alcide J. Weysham, Notary Public, dated March 6, 1965, in which the decedent bequeathed all of his property and effects to Mrs. Beatrice Papa Viola, a niece, (sister of Mrs. Monteverde, one of the plaintiffs herein) and named her testamentary exectrix of his estate.
Mr. Papa's succession was opened on April 7, 1965, on the petition of Mrs. Beatrice Papa Viola; the will was ordered executed, and Mrs. Viola qualified as testamentary executrix. An inventory of decedent's property revealed a gross estate valued at $112,127.60.
On April 15, 1965 plaintiffs filed a petition seeking to annul the will on the ground that on the 6th day of March, 1965, the date the will was executed, the decedent lacked testamentary capacity 'due to his unsoundness of mind and body.' By supplemental petitions plaintiffs alleged as an additional ground of nullity that the will was not dictated by the testator nor written by the notary on March 6, 1965 at 7:20 P.M. as indicated by the date and time recited in the will. No attack was made on the formal validity of the will and it appears on its face to comply with all of the formalities prescribed by the Civil Code.
Following a lengthy trial the District Judge held: (a) that the will was duly executed on the 6th day of March, 1965, and (b) that the deceased possessed testamentary capacity at the time the will was made.
The will contains a recitation that it was executed on March 6, 1965 at 7:20 P.M. Appellant's primary contention is that it was not executed on that date and at that time. Alternatively appellant contends that on that date and at that time the testator lacked the necessary testamentary capacity to understand and appreciate the nature of his act.
For better understanding it is necessary to state briefly the background of the case. In March of 1963 the testator was the victim (for the second time) of a robbery during which he received such an unmerciful beating as to require prolonged hospitalization and extensive care. Though his recovery was very successful his personal physician for forty years, Dr. Emanuel F. Salerno, suggested that it would be best for Mr. Papa's safety that he not continue to live alone but that he be placed in a home for the aged where he would be taken care of and protected. Acting on this suggestion, Mrs. Viola, who had been tending to all his business affairs, made arrangements to have her uncle placed in the Plantation Nursing Home. Dr. Salerno continued to visit him there from time to time and Mrs. Viola tended to his affairs under a power of attorney.
In the early morning of the 18th of February, 1965, Mr. Papa became very ill. Dr. Salerno was summoned and had Mr. Papa admitted to the Hotel Dieu hospital where it was determined that he was hemorrhaging internally in addition to having gall stones and other organic troubles. The hemorrhaging was treated with coagulants and blood transfusions but it continued to reoccur causing fluctuation in his blood pressure. The site of the hemorrhage could not be determined and Dr. Salerno called in Dr. Gatto, a psychiatrist, and Drs. Llewellyn and Richardson, neurosurgeons, to see if any cerebral condition was causing it. Their examination was negative. He also called in Dr. Krementz, a cancer specialist, to see if Mr. Papa had any abdominal or stomach cancer which was causing the hemorrhage. Dr. Krementz's examination was also negative.
Mr. Papa remained in Hotel Dieu from February 18th to the date of his death on April 6, 1965. His hospital chart shows that throughout that time the hemorrhaging reoccurred time and time again and that during a hemorrhage his blood pressure would drop very low but after receiving a transfusion it would pick up. Glucose was also administered intravenously and an oxygen tent was ordered for the patient.
--1--
Appellant's attack on the date of the will is based entirely on Mr . Papa's hospital chart which contains the notation that an oxygen tent was ordered for him on March 4th and contains no notation that it was removed before March 7th. The chart also shows that he was receiving an intravenous transfusion between 7 and 8 P.M. on March 6th.
The notary and the three witnesses to the will testified that the will was executed between 7 and 8 P.M. on March 6th; that at the time the will was dictated and signed Mr. Papa was not under the oxygen tent, the hood having been pushed back toward the head of his bed. The notary and two of the witnesses to the will also testified that whereas there was an infusion rack in the room, they do not recall Mr. Papa receiving an infusion or transfusion at the time. On the other hand one of the witnesses to the will stated that as far as she could remember, Mr. Papa was receiving an infusion at the time.
Appellant's sole contention in this respect is that since the chart shows the oxygen tent was not removed until the following day and since it shows he was receiving a transfusion between 7 and 8 P.M., the testimony of the notary and the witnesses to the will that Mr. Papa was not under an oxygen tent when the will was executed leads to the conclusion that the will was not made on the date and at the hour stated therein.
Appellant adduced the testimony of two registered nurses and a licensed practical nurse who were on duty during Mr. Papa's illness in an effort to show Mr. Papa was constantly under the oxygen tent from March 4th to March 7th and that he was receiving a transfusion between 7 and 8 P.M. on March 6th.
None of the nurses had any independent recollection of the facts and based their testimony entirely on the notations made by them on the chart. Dr. Lucio E. Gatto who saw Mr. Papa between 5 and 6 P.M. recalled that the patient was under the oxygen tent at that time.
The fact remains that no one was present in Mr. Papa's room between 7 and 8 P.M. on March 6th except the notary and the three witnesses to the will and their testimony is positive that at that time the patient was not receiving oxygen.
The District Judge...
To continue reading
Request your trial