Talton v. Todd

• Decision Date: 10 June 1957
• Docket Number: No. 43008,43008
• Citation: 96 So.2d 327,233 La. 146
• Court: Louisiana Supreme Court
• Parties: Oma Fuller TALTON et al. v. Mrs. Mildred Miller TODD et al.

Page 327

96 So.2d 327

233 La. 146

Oma Fuller TALTON et al. v. Mrs. Mildred Miller TODD et al.

No. 43008.

Supreme Court of Louisiana.

June 10, 1957.

Campbell & Campbell, by John T. Campbell, Minden, for defendants-appellants.

Hobbs & Yeates, Minden, for plaintiff-appellee.

HAMLIN, Justice ad hoc.

Defendants appeal from a judgment of the trial court holding null and void the nuncupative will by public act of their uncle, E. R. Fuller, for the reason that the formalities prescribed by Article 1578¹ of the LSA-Civil Code were not complied with at the time of its execution.

The testator died on May 4, 1955. His wife predeceased him, and he was survived by no forced heirs. His will, dated September 9, 1949, designated four of his nieces as sole legatees. Plaintiffs are his sister, his brothers, and the children of his deceased brothers.

The trial judge found that two of the attesting witnesses were not present when the will was dictated by the testator. He also found that the notary did not read it back to the testator in the presence of the witnesses. His reasons set forth below contain a clear and explicit analysis of the testimony of the notary and attesting witnesses:

'This is a suit to annul a last will and testament which was written in nuncupative form by public act. The reasons set forth for setting aside the said will are:

'1. That the witnesses to the will were not present when it was written and dictated.

'2. That the witnesses to the will did not see and were not present when the testator signed the same.

'3. That the will was written out of the presence of the witnesses.

'There is no contest over the fact that the will was drawn in proper form and that it was signed by the testator and three attesting witnesses, together with the Notary Public. On the trial of the case Miss Susie Batton, the Notary, and Mr. Travis Taylor and Mrs. Lula Harkness, two of the attesting witnesses, testified. The testimony of these witnesses has been transcribed and is a part of the record of this suit, and it is upon the rpoper weight and interpretation of this testimony that the decision of this case rests.

'Miss Susie Batton is a very highly respected legal secretary of this Parish; she having been associated with two prominent attorneys of this bar for a period of twenty (20) years or more. Her testimony, in effect, was that all of the formalities of law were complied with in the making of this will.

'Mr. Travis Taylor is likewise a very highly respected citizen of Minden, Louisiana. The Court has been personally acquainted with Mr. Taylor since childhood. He is a very quiet and unassuming person, but enjoys the very highest type of reputation in every respect. His testimony was to the effect that he did not believe the will was perfected in the manner required by law and stated in the said will. Knowing the witness and having observed his demeanor on the stand, there is no doubt in my mind but that he was of the opinion that this will had never been read to him in the presence of the testator and the Notary as stated in the will, and as required by law. It is true, as stated by counsel for the defendants in his brief, that Mr. Taylor did not positively testify that the will had not been read to the witnesses, etc. However, this Court is well aware of the fact that Mr. Taylor is a business man and that he was an unwilling witness, to the extent that it was very unpleasant for him to testify contrary to Miss Susie Batton, his business neighbor and acquaintance for many years. However, I interpreted Mr. Taylor's testimony to the effect that if the requirements in the will had been fulfilled, he certainly would recall them.

'Mrs. Lula Harkness, likewise, testified that she did not recall the will having been perfected according to its terms. It was obvious, from watching Mrs. Harkness on the witness stand, that she likewise was doing everything possible in order not to contradict Miss Batton's testimony, if such were possible. However, there was no doubt in my mind, at the conclusion of her testimony, that this will had not been drawn and dictated in her presence.

'It is not a pleasant duty for this Court to set aside a will, after having been drawn by a respected citizen of this Parish. However, I feel it is the primary duty of the trial judge to set forth his conclusions of the fact as he has seen them and heard them from the witnesses during the trial of the case. It would be easy for me to understand how both Mr. Taylor and Mrs. Harkness could forget or not be certain of their mere signature to an instrument, such as a deed, mortgage, affidavit, etc., but I believe they would certainly have recalled if they had not been present during the dictation, reading, etc. of a nuncupative will.

'For the reasons shown herein, it is my opinion that the plaintiffs should have judgment declaring the said will to be null and void.'

Were this matter strictly one of fact, we would adhere to the rule that the trial judge, having seen and heard the witnesses, should not be disturbed in his findings of fact unless manifestly erroneous. However, we also have a question of law presented for our determination.

In Succession of Beattie, 163 La. 831, 112 So. 802, 805, we held:

'Testimony of subscribing witnesses which is adduced on the contest of the will and which, in effect, impeaches the solemn statements contained in the instrument which by their signatures they have attested as correct, is not In itself sufficient to overcome the presumption of validity arising from their presence and signatures and the official certificate of a...