Prendergast v. Prendergast , 16 La. Ann. 219 ( 1861 )

Voorhies, J.

The validity of the last will of Thomas Prendergast, deceased, must he tested under the provisions of articles 1574 and 1575 of the Civil Code.

These articles lay down the rules regulating the forms or formalities to be observed in making a nuncupative will by private act; and the second paragraph of the latter provides that: “ This testament is subject to no other formality than those prescribed by this and the preceding article.” 10 A. 212, Graves v. Graves.

The questions raised in this cause relate to the dictation of the will, and its presentation by the testator, accompanied by the delaration that the instrument contains bis last intentions.

The first question is whether a nuncupative will by private act, which is not written by the testator, must, in all cases, be received under his dictation. This must be answered affirmatively, for all cases arising under the first paragraph of article 1574, and negatively under the second paragraph. The former uses the expression “ from his dictation;” and the latter “ caused it to be written.”

It is true that article 1568 lays down the general rule that nuncupative testaments, which are not written by the testator himself, must be made under his dictation. But, as stated above, nuncupative testaments by private act, made under the second clause of article 1574, are specially excepted from the operation of the general rule by the last clause of the subsequent article.

The testator, must, therefore, either dictate his will; or, in the absence of .such dictation, he must present the instrument, which he has caused to be writtep, and, declare that it contains his last intentions. In other words, this presentation and declaration, which is unnecessary when the will is dictated, is intended to supply the want of dictation. This results from the very terms of the two paragraphs of the article.

There is a manifest difference between dictating a will and causing it to be written.-

Dictation is used in a technical sense and means to pronounce orally what is destined to be written at the same time by another. Such is the settled definition of this term under our jurisprudence.

But when the Code, after providing in what cases there must be a dictation, goes on stating that it will suffice if, upon complying with some additional formality, the testator causes the instrument to ' be written by another person, it is obvious that the purpose is to dispense with the technical dictation. For not only is the technical expression omitted, and words of ordinary import substituted ; but, in other passages, the lawgiver uses in this connection such expressions as: “ caused it to be committed to writing," — “written by another under his direction," etc. C. C., 1569, 1642, And, if it be true that, in these terms, there should be no difference, then the second paragraph of the article 1574 is mere tautology, with one reservation which of itself however, is sufficient to show the fallacy of such premises. That reservation would be that, although it be imperative that the will be dictated, yet the testator might make the dictation in the absence of the witnesses, to one whose agency may remain entirely unknown 1

If the law requires a technical dictation, there must be a strict compliance. Nor would the courts be justified in presuming a compliance ; for, in nuncupative wills by private act, nothing can be taken by implication. C. C. 1640, 1641. C. P. 930, 933.

To require a dictation in the absence of the witnesses is an anomaly; and the law, so construed, would contain in its bosom the germ of its own destruction.

Rules of construction are resorted to for the purpose of giving effect to the law, and not with the view of rendering it nugatory. In the case of Bordelon v. Averett, (11 A. 636), the court said : “ The nuncupative wifi, by public act, must be dictated by the testator and written by the notary as dictated; and, if under private signature, it may be written by himself, or another; but, when written by another person, it must be from his dictation, or he must have caused 'it to be written, in substance and in form, as he presents it, declaring it to contain his last will, ses derniéres volantes." The distinction is there precisely made : the testator must either dictate the will, or he must cause it to be written ; but, if he resorts to the latter mode, he must, as be presents the instrument, declare that it contains his last intentions.

Such is the doctrine of the Gode; and it is to be regretted that the ruling in the above quoted case was not adhered to in the case of Bordelon v. Barm, subsequently decided at Alexandria. (11 A. 676.) In the latter the'court held a dictation to be always indispensable under article 1568, without eveB noticing the exception introduced by the seeond paragraph of article 1575. See the case of Graves v. Graves, 10 A. 212.

We now come to another question, somewhat connected with the previous discussion, and which has never been heretofore presented to our courts.

The article says that it will suffice if the testator causes the will to be written out of the presence of the witnesses, and it is contended that, although the instrument be fn ad gjthgp respeotg regular, if it has been written in their presence, it is null and void for non-compliance, in this respect, with the letter and spirit of the law.

This doctrine is untenable. A will cannot be annulled on the ground that all the forinalitiés were carried on in the presence of the witnesses. If it will suffice to comply with some formality in their absence; a fortiori in their presence. The attendance of witnesses is intended as a sanction to the proceedings, and cannot invalidate them in any contingency. C. C. 1642.

Six witnesses signed the will of Thomas Prendergast,,deceased. By their testimony, taken down for the homologation, it appeared that this instrument, which the testator had caused to be written by one of the subscribing witnesses, was duly presented as such with the required declaration. There was, however, a conflict in the testimony of the same witnesses, when they were examined during the trial of this cause. Three of them, however, fully corroborated the former depositions upon the probate of the will. C. P. 943.

The same rules of evidence apply in this respect as in other cases, subject to the exception introduced by articles 1641 of the C. 0., and 933 of the 0. P.; and the-weight of evidence is left to the appreciation of the Judge.

There is sufficient proof in the record that the testator caused his will to be written by one of the subscribing witnesses, and that the former presented the instrument to them as his last will, declaring that it contained his last intentions. The objections raised to its validity are, therefore, unfounded.

Judgment affirmed.