Gonzales v. Gonzales , 13 La. 104 ( 1839 )

Eustis, J.,

delivered the opinion of the court.

This is an action brought by the heirs at law of the deceased, Joseph de Leon, alias■ Rodriguez, against the defendant, his testamentary heir, for the purpose of setting aside and annulling the will of the deceased..

A will, dictated in Spanish, the native tongue of the testator, and a memorandum thereof taken down in the Erenchlanguage by the notary, which is read to the testator and approved by him, as expressing his intentions, and drawn up in the English language of which the testator is ignorant, but signed by him, the notary and witnesses, is null, under the 1571st article of the Louisiana Code, which requires that a will should be written by the notary as dictated!

The will was made on the 31st of Juty, 1835. The principal objection to its validity, and the only one we- are called upon to notice, is that it was written in the English language, of which the testator was absolutely ignorant. It appears that Spanish was his native language, that he understood French, but did not understand English, the language in which the instrument signed by him as his will was written that he dictated the contents of the will in Spanish, and the notary who wrote the will made a translation in writing, in the French language, of what had been dictated, which he read to the testator, who approved it as expressing his intentions. The instrument was then written in the-English language^and signed by the testator, the notary and witnesses, after the requisite formalities.

Conceding that the will is valid in every other respect, we consider that the objection taken by the heirs at law is fatal.

The article 1571, of the Lousiana Code, requires that the testament should be dictated by the testator, and written by the notary as dictated. The instrument under consideration has passed through the process of a double translation, and cannot, in the sense of the code, be said to have been written as dictated by the testator.

We have been referred to the French authorities on this subject, and we are aware that, under the decisions of the court of cassation, a will would not be set aside for a cause-like this in France, provided it was written in the French language. Sirey, 7, 1, 224; idem, 7, 2, 19.

But by the laws of France, notarial acts are required- to be in the French language, and in cases in which the notary and witnesses do not understand the language of the testator,, a sworn interpreter may be called in order to translate it. Vide Dictionnaire du Notariat, Verbis Interprete et Langue des Jlctes.

There is nothing in the laws which prevented the notary writing the will in this case as it was dictated by the testator. A notarial act of this kind in the Spanish language is valid.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be reversed; that the will of Joseph de Leon, alias Rodriguez, be annulled and set aside ; that the case be remanded for further proceedings according to the prayer of the petitioners; and that the defendant pay costs in both courts.