Succession of Maria Josepha Robert-Louis Pilié, Dative Testamentary Executor, and another, Appellants, 2 Rob. 427

Simon, J. This controversy arises out and is the sequel of the ’ case decided by this court between the same parties, and reported in 17 La. 10. The parties went back to the Court of Probates, to proceed on the rule which we thought necessary to notice in our former decision, and which had been taken by the dative testamentary executor, during the progress of the previous litigation before the Commercial Court. The first step that was taken before the court a qua, after the rendition of our decree, was the issuing of a commission to prove the hand-writing of the testatrix in France.

Three witnesses were examined, from whose testimony no doubt can be entertained as to the genuineness of the testament; wherefore it was ordered by the inferior court, that the rule taken by the testamentary executor should be made absolute, and that the proceeds of the several notes originally in dispute between the parties, should be paid over to him, to be by him ad ministered as property belonging to the estate of Maria Josepha Robert, reserving to Genevieve Robert the right of claiming whatever amount she might be entitled to under the will.

A few days after this decree was rendered, the executor filed an account or tableau, in which, after deducting the privileged costs and expenses, he disposes of the balance of the funds in his hands in favor of the universal legatee. The testatrix’ natural mother, being entirely excluded, filed an opposition to this tableau on the ground that, supposing the will to be valid and-executory, she is nevertheless, entitled to inherit one-half of her daughter’s estate.

This opposition was sustained by the judge a quo, who ordered the tableau to be so amended as to place the opponent thereon as entitled to one-half of the residuum of the estate, and Gustave Al-lier to the other half; and from this judgment, the dative testamentary executor, and the universal legatee have both appealed. The appellee has prayed, in her answer to the petition of appeal, that the judgment ordering the execution and registry of the will may be reversed, and the succession of her deceased daughter decreed to belong to her as legal heir.

This case presents three distinct and important questions of law for our consideration, to wit: First, was the olographic testament in question sufficiently proven before the Court of Probates, although the original will was not produced and recorded ? Second, Where was the legal domicil of the testatrix, who was a minor, above sixteen years of' age, at the time the will was executed ? Third, By what law is her capacity to dispose to be governed, and under what law is the extent of her disposition to be determined and ascertained ? I.

The genuineness of the will cannot be contested, as it is established by the clear and positive testimony of three witnesses, well acquainted with the hand-writing of the testatrix; and the notary in whose office it was deposited by order of a French tribunal, testifies that the law of France does not permit him to part with the original. This provision of the French law is, in this respect, similar to our own. Civ. Code, art. 1650. Code of Prac. art. 941.

So that there is clearly an absolute impossibility of procuring the original of the will under consideration, and of producing it for the purpose of being deposited in the probate judge’s office according to law. But is this uncontrollable circumstance to have the effect of defeating the olographic will of the deceased ? We think not.

We said in our first decision, 17 La. 18, that “ the judge of probates ought not to order the olographic will of Maria Josepha Robert to be carried into effect, without its being first proved before him according to law, unless satisfactory evidence is produced to show that it has been duly proved in France.'’’ This opinion was based on art. 1682 of the Civ. Code, in which it is positively enacted that our courts cannot refuse to order the execution of a foreign will, if it be established that it has been duly proved before a competent judge of the place where it was received.

Surely, it would be vain to contend that the proof here produced would have been insufficient in France, if required there, to establish the genuineness of the will; and why, if sufficient there, should not such proof be considered as conclusive in this state ?

Less weight or effect ought not to be given to the testimony obtained under the supervision of our own courts, than to evidence taken in a foreign country, to satisfy a foreign court; for, if under the law of France, it had been required to prove the genuineness of the will in question, its execution would have been ordered here on the mere production of a duly certified copy of the record of the proceedings had, and of the evidence received before the competent French tribunal, without the necessity of producing the original will. The policy of the art. 1682 is very obvious.

Our law, on this international subject, seems to have intended to give the same effect to foreign wills in this State, as they would have in the country in which they were received or executed, provided they have been duly proven there ; yet, it is agreed that where no proof has been adduced in a foreign country, because the law of that country did not require it, we should not be satisfied with the same degree of evidence that would have been sufficient to satisfy the foreign tribunal, and even our own courts under the first branch of art. 1682, and that we should exact a compliance with an impossibility.

We cannot assent to this proposition. The main object of our law on this subject, is to guard and protect our citizens against any fraud that might be committed to their prejudice, if it did not require the proof of the genuineness of 'foreign wills ; but when this has been satisfactorily established, such object is undoubtedly obtained, and it would be superfluous to require more.

It has been insisted, however, that arts. 1648 and 1649 of our Code show that the original will ought to be produced, in order to be identified with the testimony of the witnesses who have recognized it, and that, in its absence, the evidence would be incomplete.

This position would perhaps be correct, if the witnesses were in personal attendance before the Court of Probates ; but these articles are not negative laws ; they do not say that no other kind of proof shall be admitted; and we doubt very much wheth er, under their application, if an olographic testament executed here, had, by some accident, been destroyed before being legally proved, a true copy of it, identified with the original by the testimony of two credible witnesses who had seen both, and who would be able to swear to the genuineness of the original in the manner pointed out by law, should not be considered as a sufficient compliance with the provisions of our Codes.

Surely, we are not prepared to say that, in such a case, the legal rights acquired under the will would also be defeated, and that the parly would be left without remedy. This is indeed an analogous and even a stronger case ; and as, in our opinion, our law makers cannot have intended to require an impossibility, we must conclude that, under such circumstances, the proof furnished by the appellants, is a sufficient compliance with the requisites of the Codes, and that the inferior judge did not err in ordering the execution of the will under consideration. II.

The testatrix was a minor above sixteen years, under the authority of her natural mother, when she executed the testament, and although she resided in France, where she had been sent for the purpose of receiving her education, it cannot be controverted that she had her legal domicil in Louisiana, where she was born, and where her mother”and tutrix was then residing. Under our law, Civ. Code, art. 48, it is clear that a minor, not emancipated, can have no other domicil but that of his father, mother, or tutor ; and in this respect, it does not differ from the laws of France. Code Nap. art. 108.

Story, Conflict of Laws, No. 46, says, that the place of birth of a person is considered as his domicil, if it is at the time of his birth, the domicil of his parents; and this is called' the domicil of nativity. But if he is an illegitimate child, he follows the domicil of his mother. Ejus, qui justump'atrem non habet, prima origo amatre. Digest, lib. 50, tit. 1,1. 9. This domicil of birth of minors continues until they have obtained a new domicil; and Burge, 38, says, that “ the domicil of choice being that which the person himself establishes, can only be acquired by him who is sui juris.

It cannot, therefore, be acquired by a lunatic or a minor.” Burge quotes Yoet, lib. 5, tit. 1, No. 100. Pothier, Introduction aux Coutumes, 3. But it is urged that the testatrix’ domicil was changed, because she had resided about fifteen years in France, and because her mother had consented to her projected marriage with Gustave Al-lier ; and this last circumstance is construed as a consent to

an act which would have produced a change of domicil. It is true that this event was in contemplation, and, if it had taken place, would have had the effect of emancipating the testatrix ; but it never did happen, and consequently she never was emancipated. Now, our law, art. 48, speaks of the domicil of minors not emancipated, and thus, it is clear that nothing but an actual, and not a projected emancipation, could operate so as to authorize her to change her domicil.

Story, No. 46, says, minors are generally .deemed incapable, proprio marte, of changing their domicil during their minority, and therefore retain the domicil of their parents. This is undoubtedly a correct doctrine, which we have often had occasion to recognize ; and it is meet for us to establish as a settled and general rule, that until the act or the event which is to have the effect of giving to a minor the right of changing his former domi-cil, and of selecting and acquiring a new one, has taken place, the domicil of the parent or tutor must be considered as that of the unemanicipated minor. III.

It is first necessary to remark, that the estate of the testatrix is composed exclusively of moveables ; and it is undoubtedly a clear and correct principle on the subject of the conflict of laws, that, with regard to moveables, the capacity or incapacity of a testator is to be determined by the laws of his domicil.

Story, No. 383, says, “ It follows as a natural consequence of the rule which we have been considering, (that personal propert3r has no locality,) that the laws of the owner's do?nicil should in all cases determine the validity of every transfer, alienation, or disposition, made by the owner, whether it be inter vivos or post mortemThis rule is established by the learned judge on the authority of several distinguished jurists and commentators, who use language equally general and exact.

Among whom we find Pothier, Merlin, and ¡others, who all agree in asserting the principle to be so well established, that no one has dared to question it; and there is, says Judge Story, an entire harmony on this point between foreign and domestic jurists.

But it has been strenuously contended that although the testatrix’ legal domicil was in Louisiana, and although her capacity to dispose of her moveable estate is to be governed by the law of her domicil, her will ought to be construed, and her intention ascertained and determined in reference to the law of Franee, where the testatrix intended that her will should take' effect. The disposition in controversy is in thése words : “ Je donne et légue a M.

Gustave Allier, que je dois Spouser, tout ce dont la loi me permet. de disposer.” If this disposition mortis causa is to be regulated by the laws of Louisiana, the whole of the estate of the deceased will go to the universal legatee (Civ. Code, art. 1464); whilst under the law of France, he would only be entitled to one-half thereof. Code Nap. art. 904.

Now, it seems to us clear, that the testatrix intended to bequeath all that she was capable of giving, and that nothing in her disposition, or in the expression of her last will, indicates that the law by her alluded or referred to, if indeed she alluded or referred to any particular law, was the law of France rather than that of Louisiana.

It is true her residence de facto was in France, but she had no property there, beyond her wearing apparel and some furniture ; and if she had really intended to dispose according to the law of that country, would it not have been easy for her to ascertain exactly the extent of her capacity there ? Her disposition shows an entire ignorance of the law that was to govern her capacity; and we may fairly presume that she did not know which was to have that effect.

But certain it is that it evinces clearly the intention of bequeathing to her universal legatee, to her lover, to her intended husband, all she could legaljy give him, and the whole of her estate if it happened that she was by law permitted to do so. Her will contains no restriction, no limitation. Her intention was undoxtbtedly to dispose to the full extent of her legal capacity ; and if so, how could her intention be separated from her capacity ? Is 'not the one, on the contrary, closely connected with the other?

We think so ; and as, from the expressions used in the will, it cannot be doubted that the testatrix intended to carry her liberality to the full extent of the law that was to govern her capacity ; and as it is a settled rule that such law is that of her domicil, which was in Louisiana, we are constrained to conclude that her disposition must prevail as a legacy of her entire moveable estate. Under this view of the question, that part of the judgment of the inferior court, allowing one-half of the estate of the deceased to her natural mother, must be reversed.

It is, therefore, ordered, that the judgment of the Court of Probates, commanding the will of Maria Josepha Robert to be executed, be affirmed; that the judgment subsequently rendered and appealed from, be annulled ; that the opposition filed by the testatrix’ natural mother, be overruled ; and that the account or tableau filed by the dative testamentary executor, be homolgated and approved. The costs in both courts to be borne by the opponent and appellee.