Woodfork v. Sanders

• Decision Date: 10 May 1971
• Docket Number: No. 4274,4274
• Parties: Arthur WOODFORK v. Irwin R. SANDERS.
• Court: Court of Appeal of Louisiana — District of US

Page 419

248 So.2d 419

Arthur WOODFORK v. Irwin R. SANDERS.

No. 4274.

Court of Appeal of Louisiana, Fourth Circuit.

May 10, 1971.

Rehearing Denied June 7, 1971.

Benton & Moseley by Thomas H. Benton, Baton Rouge, for plaintiff-appellant.

Marian Mayer Berkett of Deutsch, Kerrigan & Stiles, New Orleans, for defendant-appellee.

Before REDMANN, STOULIG and BOUTALL, JJ.

REDMANN, Judge.

Plaintiff, the universal legatee under a will a trial court held formally invalid, appeals from the dismissal, on exception of no cause of action, of his damage suit against the testator's attorney who prepared the will.

The substance of plaintiff's petition (as amended) is that plaintiff (whom defendant represented in another matter) brought the would-be testator to defendant to have a will executed, in accord with testator's wishes, naming plaintiff universal legatee. Defendant, 'a licensed attorney at law', prepared the will in attempted compliance with the statutory form provided by R.S. 9:2442, and had plaintiff (the universal legatee) sign the will as one of the two witnesses. The will was decreed formally invalid by the Civil District Court. Plaintiff asked, as damages, the Gross asset value of the succession (with no deduction of debts, costs, fees and death taxes).

Defendant's exception was based, essentially, on lack of attorney-client privity, and on the theory that defendant acted as a Notary Public, rather than as an attorney at law, in the confection of the will.

On our own motion, we requested both parties to brief the question of the will's formal validity and have had the benefit of able argument.

Because we hold the will formally valid and because the petition states only the will's invalidity as the cause of the loss of the estate, we affirm on those grounds the judgment maintaining the exception of no cause of action, although we grant leave to amend. We will not discuss the issues raised by defendant on the exception except in connection with leave to amend.

Validity of the Will

Insofar as concerns testator's succession and the heirs in whose favor this will was adjudged invalid, that judgment has apparently become final for lack of a timely appeal; Succession of Mallary, 220 La. 825, 57 So.2d 737 (1952).

But that judgment does not bind defendant, who was in no way a party to that proceeding, not even as counsel. (Plaintiff was then represented by present counsel.) The authority of the thing adjudged affects only the parties; C.C. art. 2286.

Therefore we examine the question of the will's formal validity just as if we were ruling on the will itself.

The statutory will form is authorized by R.S. 9:2442--9:2443, enacted by Acts 1952, No. 66, and amended by Acts 1964, No. 123, § 1 .

We first note that R.S. 9:2442 provides, in part (with emphasis added):

'In addition to the methods provided in the Louisiana Civil Code, a will Shall be valid if in writing * * * signed by the testator in the presence of a notary public and two witnesses in the following manner: * * *'

R.S. 9:2443 provides:

'Except as provided in R.S. 9:2442 with respect to a testator who is physically unable to sign his name, Those who know not how or are not able to sign their names, and those who know not how or are not able to read, cannot make dispositions in the form of the will provided for in R.S. 9:2442, nor Be attesting witnesses thereto.' (Emphasis added.)

Our initial impression of the intent of R.S. 9:2442--9:2443, as amended, is that, in addition to (and therefore without complying with) the Civil Code methods, a will 'shall be valid' if the statutory form is met. The will here is argued to be formally invalid because the legatee was a witness, and the Civil Code, art. 1592, provides 'Neither can testaments be witnessed by those who are constituted heirs or named legatees, under whatsoever title it may be.' But the statute's only disqualification is for inability to sign one's name or to read.

Nevertheless we find that in Succession of Hackett, 187 So.2d 485 (La.App.1966), counsel for the Defendant in an attack on a trust under will apparently Conceded (on facts in fact occurring prior to the 1964 amendment of R.S. 9:2443) that witnesses to the additional Statutory form of will must meet the Civil Code qualifications of art. 1592. That counsel in Hackett did not afford the question much study is evident from the court's recital of the circumstances at 187 So.2d 486:

'In the course of oral argument before this court, counsel for the defendant, Richard Alexander Hackett, dramatically informed us that one of the witnesses to Mrs. Hackett's testament was also a named legatee therein, thereby rendering the will invalid. ¹

'Respective counsel failed to notice this fact during the trial in the lower court. The briefs which were submitted to us on appeal did not even allude to this error. Defendant's counsel discovered the invalidity the night before the case was fixed for argument here .'

The court apparently accepted the Defendant's concession that the statutory will, which defendant sought to uphold, would be invalid if a witness were also a legatee. We remanded to the trial court 'in order that evidence may be adduced therein to prove the identity of the legatee and the said witness, and thereafter to determine the validity of the will'.

We also find that our Supreme Court in obiter dictum in Succession of Eck, 233 La. 764, 98 So.2d 181, 185 (1957), suggested C.C. art. 1592 might have application to a statutory will. Eck Held valid a will witnessed by the universal legatee's wife. The obiter reasoning of Eck was:

'* * * There are no provisions in Act 66 of 1952, LSA-R.S. 9:2442, with respect to who may witness a will drawn under its provisions. Under such circumstances, the substantive law of Louisiana applies. Mrs. Micas did not fall within any of the incapacities set forth in the Revised Civil Code. LSA-C.C. arts. 1591, 1592.'

Since the 1964 amendment of R.S. 9:2443, it is, of course, no longer true that there are 'no provisions * * * with respect to who may witness' a statutory will.

Civil Code Book III, Title II, chap. 6, sec. 2, 'General Rules on the Form of Testaments,' arts. 1574--1595, prescribes rules for the nuncupative by public and private act, mystic, and olographic wills. Included in that section are:

'Art. 1591. The following persons are absolutely incapable of being witnesses to testaments:

'1. Children who have not obtained the age of sixteen years complete.

'2. Persons insane, deaf, dumb or blind.

'3. Persons whom the criminal laws declare incapable of exercising civil functions.

'4. Married women to the wills of their husbands.

'Art. 1592. Neither can testaments be witnessed by those who are constituted heirs or named legatees, under whatsoever title it may be.

'Art. 1593. Mystic testaments are excepted from the preceding article.

'Art. 1595. The formalities, to which testaments are subject by the provisions of the present section, must be observed; otherwise the testaments are null and void.'

The importance of art. 1595's declaration of nullity may be underscored by observing that art. 1592 itself does not declare the legatee-witnessed will null: except for art. 1595, it might be argued that art. 1592's prohibition could be satisfied by merely holding the witness-legatee unable to take under the will, thus holding the will otherwise valid. Especially where, for example (as the Hackett record shows), a manypage, multi-provisioned will, disposing of vast assets, includes one $200 legacy to a servant, the use of that servant as a witness might (except for art. 1595) be construed as affecting only the servant's legacy. The basic prohibition of art. 1592 (taken by itself) is against one being both witness and legatee (the purpose being presumably to avoid undue influence, imposition or fraud). In the case of a trifling legacy to a witness, justice and the fundamental principle of maintaining testacy would appear to be better served by holding the witness cannot be a legatee, but only the legacy to the witness fails and the remainder of the will is given effect. ²

However, the wording of art. 1595 is that the Testament (not the mere legacy) is null for noncompliance with the Civil Code formalities. Thus, If art. 1595 applies, a statutory will would be null if it did not comply with Civil Code formalities.

But the language of R.S. 9:2442 could hardly more clearly imply that C.C. art. 1595 cannot invalidate a statutory will: 'In addition to the methods provided in the Louisiana Civil Code, A will shall be valid if' the statute's requirements are met.

As a minimum, it appears that C.C. art. 1595 cannot apply to statutory wills. Accordingly, even if art. 1592 were held applicable, the possibility of limiting its effect to invalidating only the legacy to the witness, and not the entire will, seems very strong.

Apart from reliance on Eck and Hackett (the facts of which pre-dated the 1964 witness disqualification provisions of R.S. 9:2443), plaintiff's argument against the validity of a legatee-witnessed will is that excluding application of C.C. art. 1592 would also exclude application of C.C. art. 1591, and thus allow infants, insane persons, criminals and wives of testators to witness wills (as long as they could sign their names and read, R.S. 9:2443).

Defendant argues excluding art. 1592 would not necessarily exclude art. 1591, since art. 1593 excludes art. 1592 as to mystic wills without excluding art. 1591.

There is a parallel between mystic and statutory wills. One purpose and effect of the statutory will form was to eliminate the necessity of reading the will to notary and witnesses. This charge is especially helpful where lengthy and complex trust provisions might be incorporated. See Comment, 28 Tulane L.Rev. 288, 296--7 (1954). Where the will is not read, and accordingly a witness (such as the cook in Hackett) would ordinarily not know he was a legatee, the witness's position is not...