Succession of Morales , 16 La. Ann. 267 ( 1861 )

Vooehies, J.

The last will and testament of Mrs. Bernard Marigny, a nun-cupative will by public act, is assailed on the ground that, although there is a statement in the instrument that it was dictated, yet there was not in point of fact a dictation.

As we are satisfied that, under articles 1574 and 1583 of the Civil Code, it is valid as a private act, we need not decide whether or not there had been a dictation in the sense of the law.

The facts are undisputed.

There were present in the room, the testatrix, the notary, and four persons officiating as witnesses.

The testatrix drew from hey pocket a paper, which she handed to one of the witnesses, stating that it contained her last intentions, drawn up by her order. At the request of the notary the paper was handed to him ; whereupon the testatrix requested him to read the paper. This was complied with in the presence of the witnesses. She then requested the notary to copy the contents of the paper as her will. He did so ; and, at the close of each paragraph, read the same to the testatrix paragraph by paragraph, enquiring of her whether that was her meaning. She answered each time that it was, causing the notary to read over one of the paragraphs, which she had not well understood. Then the whole, as copied from the paper, was read to her in the presence of the witnesses ; and she again declared that this was her will.

The instrument was thereupon signed by the testatrix, the notary and the witnesses.

So far as regards the number of witnesses, the presentation of the will by the testatrix, her declaration that it was her last will, it is obvious that there is a lit-teral and strict compliance with the second paragraph of article 1 S'!4 of the Civil Code.

The only questions are, whether this article by the terms “ caused it to be written ” means a dictation ; and, secondly, whether it is imperative as to the absence of the witnesses:

In the case of Prendergast v. Prendergast, we held, that, when the testator had caused the will to be written, whether in the presence or in the absence of the witnesses, and had presented the instrument to them, declaring that it contained his last intentions, this was a full compliance with article 1574 of the Civil Code. For the reasons given in that case :

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed; and that the last will and testament of Anna M. Morales, deceased, be declared- valid asa nuncupative testament by private act, the plaintiff and appellee paying the costs of appeal.