GAUDE vs. BAUDOIN, 6 La. 722

Bullard, J., delivered the opinion of the court. This suit was instituted by the collateral heirs of one Gaudé to annul a testament by which he bequeathed to the defendant, his widow, the whole of his estate. The testament was declared valid by the District Court, and the plaintiff appealed. The appellants rely in this court on the following points: 1. That a nuncupative testament under private signature must be written by the testator or caused to be written by him and that fact must appear on the face of the instrument under pain of nullity. La. Code, 1568, 1574, 2256. 2.

The instrument purporting to be a testament dated on the 7th of November, was signed only by three witnesses when more might have been procured. La. Code, 1576, 1 N. S. 488. 3. The instrument executed on the 8th November is not a testament as it contains no disposition of property, nor does it form part of the one executed the day before. That it is to he regarded merely as confirmative and can have no effect. La. Code 2252. 4.

One witness to the instrument executed on the 8th was a foreigner, not naturalized and without legal residence; without him the number required by law is not complete, since it is not shown that more could not be found. La. Code 1587, 1576. 5. The formalities required in a will are matters of strict law and it is null if they are not complied with.

A Assuming this last proposition as one of undoubted ° xx in our jurisprudence, one which this court has uniformly recognized, we proceed to examine the 3d and 4th points, because the opinion which we have formed on these will render it unnecessary to consider the others. The will which the plaintiffs seek to annul purports to be a nuncupative testament under private signature, and its validity will depend on the question whether the formalities required for that class of wills have been complied with. The second clause of this kind of the 1574th

article of the Code which treats of this kind of wills, declares that “it will suffice if in the presence of the same number of witnesses the testator presents the paper on which he has written his testament or caused it to be written out of their presence, declaring to them that that paper contains his last will.” The last

article provides that, “in either case the testament must be read by the testator to the witnesses, or by one of the witnesses to the rest in presence of the testator; it must be signed by the testator if he knows how or is able to sign, and by the witnesses or at least two of them, in case the others know not how to sign, and those who do not know how to sign, must affix their mark.

This testament requires no other formality than those prescribed by this and the preceding article.” If a will under private signature be signed in the presence of three witnesses and on tho next day a supplement is made to tlie original signed by the testator and iivo witnesses, the first proceeding will belaid out of vie^y, and the last considered as legalizing the whole instrument. The proceedings which took place on the 7th of November may be laid entirely out of view.

If on that occasion a' sufficient number of witnesses was not present and some other solemnities required for a nuncupative testament were not observed, it is not easy to perceive how they could vitiate what took place on the eighth. We think the maxim of law strictly applicable uutile per inutile non vitiatur and the doings of the seventh must be considered as not written. On the following day five persons, who appear to be competent witnesses, assembled at the house of the testator whom they found of sound mind though sick and in bed.

In their certificate of what was done and said on the occasion which is on the same paper containing the testamentary dispositions, they go on to say; we give the words of the original. “Et la étant tous les cinq témoins, le dit Gaudé nous a presenté ce papier, qui nous a-t-il dit, contient son testament et ses dernieres volantes, sur quoi moi Frederick Blanc un des dits témoins ai lu au dit testateur et aux autres témoins ce que est écrit ci-dessus et de 1’autre part, apres laquelle lecture le dit testateur a declaré que ce queje venáis de lui lire contenait bien ses dernieres volontés et que la signature ci-dessus était lasienne, faité au presence de trois témoins qui ont aussi signó ci-dessus.

En fui de quoi nous avons signe en la chambre susdite avec le dit testateur et en sa presence, apres nouvelle a foreigner not naturalized, who is residing in mo parish, has been SSMrtheelStote", wtaesstoTiSu?1 It appears therefore, that in strict and literal compliance with the articles of the Code above recited, this testament was produced to the five witnesses, declared to be the will of the testator by himself, read over twice in his presence and in presence of the witnesses by one of them and signed by the testator and the witnesses.

But it is urged that one of the witnesses was incompetant, . # that he was a foreigner not naturalized m the country and 0 u without legal residence. It appears that he was a tutor in a private family, actually residing at the time in the parish where the will was made; that he had been living there some months with the intention to continue there at least until the end of the year, and that he had been some years in the United States. It is clear from the evidence that the witness did not reside out of the parish, and had no other domicil in the state.

We think that sufficient and that he was a competent witness. It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the District Court be affirmed with costs.