Succession of Shows

• Decision Date: 12 November 1963
• Docket Number: No. 5948,5948
• Citation: 158 So.2d 293
• Parties: Succession of Mae Viola Cooper SHOWS.
• Court: Court of Appeal of Louisiana — District of US

Page 293

158 So.2d 293

Succession of Mae Viola Cooper SHOWS.

No. 5948.

Court of Appeal of Louisiana, First Circuit.

Nov. 12, 1963.

Rehearing Denied Dec. 16, 1963.

Writ Granted Feb. 7, 1964.

Philip E. Pfeffer, Covington, for appellant.

Barranger, Barranger & Jones, by William J. Jones, Jr., Covington, Pittman & Matheny, by Tom H. Matheny, Hammond, Lancaster, King & LeCorgne, by William McM. King, New Orleans, for appellee.

Before ELLIS, LOTTINGER, HERGET, LANDRY and REID, JJ.

LOTTINGER, Judge.

This matter is before us on an appeal taken by Mrs. Daisy Cooper Granier, sister of the decedent, Mae Viola Cooper Shows, from a judgment of the Court below which refused to admit to probate a document purporting to be the last will and testament of Mrs. Shows.

The Trial Judge rendered written reasons for judgment which we herewith set forth in full:

'Mae Viola Cooper Shows died on December 18, 1961. There was offered for probate a document purporting to be a last will and testament of the decedent, which reads, in its entirety, as follows:

'Dec 3--61

'All to My Sister

'Mrs. Mae V. C. Shows

'Mrs. Mae V. C. Shows

'Shows'

'The probate of the will was opposed by all of the collateral heirs of the decedent.

'On the trial relative to the admission of the will to probate, the following facts appeared to be undisputed:

'1. That the document offered for probate was entirely written, dated and signed in the handwriting of the decedent.

'2. That she was survived by only one sister, Mrs. Daisy Cooper Granier.

'3. That Mrs. Shows had, prior to the death of her husband made a will in which he was made universal legate, and which contained a number of legal terms and standard testamentary language. The said will was made by her using as a model the will of a friend.

'4. That in the months preceding her death, Mrs. Shows had often discussed with a number of persons the making of her will, and had expressed a desire that certain of her collateral relatives not share in her estate.

'5. That decedent and her sister, Mrs. Granier, the proponent, herein, were very close during decedent's lifetime.

'6. That on December 3, 1961 when the document offered for probate was written, Mrs. Shows believed herself to be dying.

'7. That when she arrived in New Orleans to go to the hospital, she gave an envelope to Mrs. Granier and instructed her to take good care of it.

'8. That Mrs. Granier put the envelope in her purse where it remained until one or two days after Mrs. Shows died.

'9. That when the envelope was opened, the document offered for probate was found attached to a bundle of papers therein with a rubber band. The papers included certified copies of deeds to property, copies of the proceedings in the succession of Mrs. Shows' late husband, and various bills and receipts.

'10. That before her death, Mrs. Shows had often discussed the making of her will with her attorney, Mr. Lindsay McDougall.

'11. That at no time between the 3rd of December and the time of her death did Mrs. Shows ever indicate to anyone that she had made a will.

'The Court must determine if the above document, in the light of the circumstances outlined herein is a valid will under the law of the state of Louisiana.

'First, as a matter of fact, it satisfies the technical requirement of having been entirely written, dated and signed by the testatrix. Article 1570 of the Civil Code provides that no particular designation need be given to a document purporting to be a will, provided it meets the technical requirements, and provided that 'the clauses it contains or the manner in which it is made, clearly establish that it is a disposition of last will.'

'The Court finds that there is nothing in the document as offered to establish clearly or otherwise that it is a disposition of last will. Therefore, its validity as a will can only be established from the surrounding circumstances.

'I have reviewed all of the authorities cited by counsel and in every case where a doubtful document is found to be a valid will there has either been a specific designation therein that the document was a will, or words such as 'give' or bequeath' were used therein.

'Turning now to the surrounding circumstances, I find very little to guide the Court in considering 'the manner in which it is made.' This is purely a question of fact. It is the opinion of the Court that although the attendant circumstances are such as to make it possible to draw the conclusion that the document offered for probate is in fact the last will of the decedent, I do not feel that the circumstances are such that they 'clearly establish' that it was intended to be a will.

'I am familiar with all of the authorities relative to the desirability of testacy and of giving to the document offered for probate the favorable consideration which is required by the law.

'I can only state that in the opinion of the Court this document when considered in the light of the circumstances surrounding its writing, does not satisfy the clear requirements of the law of this state.

'Accordingly, probate is denied.'

The law is well settled that for a document to constitute one's last will and testament it must, by its own language, show on its face that it purports to dispose of the property of the testator on his death. The codal articles and jurisprudence on the subject have been very recently reviewed by our Brothers of the Second Circuit in the Succession of Faggard, La.App.,152 So.2d 627 (April 1, 1963), from which we quote with approval as follows:

'The document consists of a single sheet of paper bearing the date 'Sep 17--57', underneath which notation, and continuing on the reverse side of the sheet, was a list of names and notations as to certain property. On the lines to the right of the names are certain figures, such as '1 000 00,' '1 500 00,' '2 500 00,' '500 00,' '10 000 00,' '8 000 00,' '33 000 00,' et cetera. Near the bottom of the reverse side of the document is inscribed the name 'Alfred Green Faggard.' This sheet of paper was contained in an envelope on which had been written 'Copey of will.' This notation was neither dated nor signed.

'The bases of the attack upon the alleged will are: that the document contains no words or language indicative of a testamentary disposition; and, moreover, that (1) it does not purport to be a last will and testament by which Faggard disposed of his property at his death; (2) it is not clothed with any of the forms prescribed for an act of last will and testament; and (3) it does not manifest any intention of the party to make a will.

'The legal requirements essential to the validity of an act of last will and testament are prescribed in the Civil Code. For instance, LSA-C.C. Art. 1469 provides:

"A donation Mortis causa (in prospect of death) is an act to take effect, when the donor shall no longer exist, by which he disposes of the whole or a part of his property, and which is revocable.'

LSA-C.C. Art. 1571:

"A testament is the act of last will clothed with certain solemnities, by which the testator disposes of his property, either universally or by universal title, or by particular title.'

LSA-C.C. Art. 1570:

"No disposition Mortis causa shall henceforth be made otherwise than by last will or testament. Every other form is abrogated.

"But the name given to the act of last will is of no importance, and dispositions may be made by testament under this title or under that of institution of heir, of legacy, codicil, donation Mortis causa, or under any other name indicating the last will, provided that the act be clothed with the forms required for the validity of a testament, and The clauses it contains, or the manner in which it is made, clearly establish that it is a disposition of last will.

"Thus an Act of last will, by which an individual Disposes of his property or of part thereof, in any manner whatsoever, whether he has or has not charged any one with the execution of his last will, Is considered as a testament, if it be, in other respects, clothed with the formalities required by law.'

'(1) Thus, a document, to constitute one's last will and testament, must by its own language, show on its face that it purports to be the last will and testament of the person whereby he disposes of his property at his death.

'There is no language whatsoever in the document here intended for probation indicating an intent on the part of the decedent to dispose of his property at his death. None of the parties listed are named or referred to as legatees, heirs, or beneficiaries. Nor does the instrument contain the words 'give,' 'donate,' 'will,' 'bequeath,' 'devise,' or any other word establishing or even indicating that it is a disposition of a last will.

'(2) Before a document may be admitted to probate, it must purport, on its face, to be a last will and testament. Succession of Elliot, 27 La.Ann. 42; Succession of Brand, 162 La. 880, 111 So. 267; Succession of Ravain, 168 La. 413, 122 So. 274.

'(3) Moreover, in the absence of a testamentary intent, which must be established by the language of the document itself, there is no will. Oxley v. Clay, 7 Rob. 425; Succession of Foucher, 18 La.Ann. 409; Theall v. Theall, 7 La. 226, 26 Am.Dec. 501; Succession of Patterson, 188 La. 635, 177 So. 692; Succession or Brewster, La.App.4th Cir., 1962, 145 So.2d 597 (writs denied). Thus, it appears to have been well settled in the jurisprudence of this State that, for a document to constitute one's last will and testament, the document must show, on its face, that the party intended such document to constitute a testamentary disposition.

'Notwithstanding the fact that the document contains no language indicating an intent on the part of the decedent to dispose of his property at his death, it is contended that the words 'copey of will,' inscribed on the envelope, should be given consideration in the determination of Faggard's intent, and, if the language there employed, together with the language of the...