Weintz v. Kramer , 44 La. Ann. 35 ( 1892 )

The opinion of the court was delivered by

Fenner, J.

The plaintiff was a legatee of the late Frank P. Burger, who bequeathed her two lots of ground, with the improvements, in New Orleans.

Burger’s will was taken in nuncupative form by public act before Peter J. Kramer, Esq., notary public. The will was subsequently attacked by certain of the heirs, and the same was annulled by this court upon the express ground ‘‘ that the notary who executed it failed to state that the attesting witnesses were residents of the parish of Orleans, the place where the same was executed. See 41 An. 1153.

Being ousted of the legacy under this decision, she brings an action against Kramer and his sureties for the value of said legacy, alleging that she has lost the same by reason of the fault, negligence, imprudence and want of skill and inattention to his business of the said notary.

There is no dispute that Kramer was regularly appointed a notary public by the Governor; that Thuem and Hassinger were his sureties on his official bond.

The condition of this bond is that the notary “ shall well and faithfully discharge and perform all the duties incumbent upon him in and for the parish of Orleans, and for the faithful performance of all duties required by law toward all persons who may employ him in his profession as notary in accordance with the act relative to notaries.”

The petition was met by exceptions of prescription of one year and no cause of action.

The plea of prescription is disposed of by our decision in a like action upon the bond of a notary, where we said: “ The prescription of one year is based on the hypothesis that the action is one for damages for a quasi offence. We are not concerned here with the question as to whether defendant’s breach of duty was, or not, technically a quasi offence. The action is on a bond, and, therefore, ex eontraetu, to which the prescription invoked is not applicable.” Brigham vs. Bussey, 26 An. 676; Pox vs. Thibaut, 33 An. 33.

The exception of no cause of action is based upon the idea that the obligations under the bond are governed exclusively by the terms of Section 2503 of the Revised Statutes., which provide that the notary’s bond shall be “ conditioned for the faithful performance of all duties required by law toward all persons who may employ him in his profession of notary,” and, therefore, that as plaintiff did not employ this notary and the petition does not so allege, it sets forth no breach of the bond and no cause of action thereon. Without deciding that this would be a proper construction of this statute, it is sufficient to say that, with reference to notaries in the parish of Orleans, the broader requirement of Act No. 609 of 1857 is reproduced and held in force by Section 2521 of the Revised Statutes, which exacts a bond conditioned “ for the faithful performance of his duties.” The bond in this ease, as shown by our above quotation of its terms, was evidently framed to comply with requirements of both these sections. The effect of the condition prescribed by the Act of 1857, and Section 2521, Revised Statutes, has already been construed by this court. The suggestion that it applied only in favor of persons employing the notary was repudiated, and the court said: “The Act of 1857 fixes, as the broad and legitimate condition of the notary’s bond, that he shall faithfully perform his duties in that capacity.” Rochereau vs. Jones, 29 An. 84.

There can be no doubt that this bond, given by a notary of New Orleans, is governed by Section 2521, Revised Statutes, which is a special statute applying exclusively to notaries of this parish and must prevail over the general provision of Section 2503, which applies to the notaries of the State, generally. We observe that Section 2521 has been again reproduced in the latest act touching notaries in New Orleans, Act No. 42 of 1890.

If the contentions of defendants were well founded there would be no liability under the notary’s bond for any fault or misconduct however gross in that most important of all notarial functions, the confection of testaments. No one could be injured by the nullity of the testament except the legatees, and as they are not the persons who employed the notary, they would have no recourse.

The further legal defence'is interposed that the bond does not guarantee the competency of the notary, but only his fidelity and honesty. Such is not the tenor of the bond, which is conditioned that the notary “ shall well and faithfully discharge and perform all the duties incumbent upon him,” etc.

Our jurisprudence recognizes no such restriction, but has held the notary and his sureties responsible for faults of omission or commission unattended with any suggestion of fraud or dishonest intent. Brigham vs. Bussey, 26 An. 676. Fox vs. Thibaut, 33 An. 33.

In a later case we distinctly said: “The stipulations which the bond contains constitute the contract entered into, and must be strictly construed. The object contemplated was to make certain that the notary would discharge well and faithfully all the duties incumbent upon him, and in case of his failure to do so, and loss was sustained thereby, to hold the surety liable. * * * Before the notary and his surety can be held, it is necessary to inquire whether the act done or not done, committed or omitted, was or was not authorized by law, was or was not incumbent upon him, was or was not required of him, whether he was directed to do it, whether he has failed to discharge his duty, and whether injury has been sustained.” Schmitt vs. Drouett, 42 An. 1064.

It is true that the State takes certain other precautions to secure the competency of notaries by having them examined, etc., but, not content with these, it adds the obligation of the bond to protect people who are interested in the due and proper performance of their duties. That protection would amount to little if it only guarded against intentional dishonesty and fraud.

Although the statute only requires a bond for “faithful performance,” such “ faithful performance ” of duties voluntarily assumed and carried on for personal profit involves more than mere honesty —it involves care, diligence, attention and reasonable competency.

The defendants next deny that the notary here committed any fault, and they assail the correctness of the decision of this court in Weick vs. Henne, 41 An. 1153, which annulled the will. As defendants were not parties to that suit, they are not technically bound by the judgment. But we see no reason to change the conclusion therein reached. If it was a strict application of the law, it was made in a matter in which, above all others, the law enjoins and requires the utmost strictness. Baudry la Oantinerie, in his admirable commentary on the French Code, says: “ The most common cause for annulling testaments by public act is for want of or defect in the express mention (of fulfilment of the forms required). It would be wrong to blame the courts for the severity with which they enforce this requirement, because that only, manifests the respect for the authority of the law which inspires their decisions. The blame, if any, ought to rest upon the legislator, who has perhaps exceeded the just measure of rigor in regard to these formalities.” 2 Baudry la Oantinerie, Droit Civil, No. 561.

We rest our decision in the case referred to upon our respect for the authority of the law, which requires that express mention should be made that the witnesses were persons “residing in the place where the will was received,” meaning thereby residing in the same parish. To say that they were “ witnesses residing in the neighborhood ” certainly does not fill the requirement, and the reasons are sufficiently given in the opinion.

Finally, it is contended that such an error on the part of the notary is not a fault of so grave a character as to subject him to responsibility, being a mere error of judgment, which a discreet and diligent man might have committed. We have no desire to exaggerate the fault of the respectable notary who acted in this case. But his error was sufficiently grave to entail the nullity of the will and to subject the plaintiff here to the loss of her legacy.

He knew that the validity of the will depended upon the most exact and scrupulous fulfilments of the formalities prescribed by law. The directions of the law are precise and unambiguous. He had only to use the terms of the law itself to be absolutely safe. If he chose to substitute other terms, he did so of his own motion and at his own risk, and can not throw the resulting loss on innocent persons who had the right to rely on his proper performance of the duties incumbent on him. The words of the statute are not sacramental, but the words used must be such as expressly declare fulfilment of the formalities. “Implication is not to be resorted to unless, at least, it be an implication necessarily involved in the meaning of the express words used.” Succession of Rosa Vi'dal, Ante, p. — .

It is important that notaries should be impressed with the gravity •of their responsibility when they undertake the confection of testaments which involve the devolution of entire estates and the execution of the final wishes of the de eujus with regard to those who come after them. They know that their validity depends on the strictest compliance with the law, and they should follow the plain letter of the law, or assume the responsibility of any deviation. The very object of the requirement of “express mention” is to guard them against neglect or forgetfulness, and to fix their responsibility.

Under the French law, from which our system is derived, we are referred to many authorities unequivocally upholding the responsibility of notaries for such errors. Dalloz Repertoire, Vol. 39, Nos. 302, 307, 389, et seq., and 424; Id,, Vol. 8, pp. 1-26-29, where the authorities and decisions are referred to. We conclude, therefore, that the judge a quo did not err in holding defendants responsible for the damage suffered by plaintiff.

The measure of this loss is the amount which plaintiff would have received had the will been valid.'

It appears that the succession of Burger (the de eujus) was duly administered. It consisted exclusively of the real estate bequeathed to plaintiff and to another legatee, which was sold under order of court and realized (with some rentals) the sum of $2505. The administrator filed an account, showing disbursements on account taxes, privileges, costs, etc., and leaving a net balance of $939.55. Amongst the liabilities on the account allowed by the court was an item of $500 paid to Che widow “ as per compromise.” The judge a quo thought the defendants carried the burden of proof to show the correctness of this payment. We consider it fairly presumable that the court allowed the item as due to the widow, either in payment of a debt due or of her privilege as widow in necessitous circumstances, in either of which cases the claim would prime the legacies. The defendants are entitled to the benefit of the presumption that this judgment of the court was correct, and if plaintiff desired to attack it, the burden of proof was on her. We must, on this ground, amend the judgment.

It is, therefore, adjudged and decreed that the judgment appealed from be amended by reducing the amount thereof from $824.99 to $626.36, and as thus amended the same is now affirmed, appellee to pay costs of appeal.