Opinion
No. 9601.
December 7, 1978.
APPEAL FROM 23RD JUDICIAL DISTRICT COURT, PARISH OF ST. JAMES, STATE OF LOUISIANA, HONORABLE PENROSE C. ST. AMANT, J.
Becnel Becnel, Vacherie, for Mrs. Aldonia Alexis Roussel and Olamae Roussel Joshua, appellees.
Rodney J. Madere, New Orleans, for Henry Roussel, appellant.
Before REDMANN, GULOTTA and SCHOTT, JJ.
Plaintiff appeals from a judgment upholding the validity of a nuncupative will under private signature, executed August 14, 1969 and probated on March 3, 1977. Plaintiff contends that the formalities of Civil Code art. 1581 were not fully complied with, because less than five of the signing witnesses were residents of St. James Parish, the place of execution of the will. There is no dispute as to the St. James Parish residency of four of the witnesses, but plaintiff seeks to invalidate the will on the grounds that a fifth witness, Whitney J. Jasmine, Jr., was a non-resident of St. James Parish on the day he witnessed decedent's will. We reject plaintiff's argument and hold that Whitney J. Jasmine, Jr. was a bona-fide resident of St. James Parish on August 14, 1969.
C.C. art. 1581: A nuncupative testament, under private signature, must be written by the testator himself, or by any other person from his dictation, or even by one of the witnesses, in presence of five witnesses residing in the place where the will is received, or of seven witnesses residing out of that place.
Jasmine's residence of origin was St. James Parish. He was born in St. James, attended school there, and continued to attend church there even after his temporary absence from the parish. Because of his economic circumstances, after marriage in 1966, Jasmine lived with his in-laws on the John Parish. Although Jasmine was residing in that parish with his in-laws on the date he witnessed the will, he testified that he had no intention, at that time, of abandoning his St. James residency.
Jasmine testified further, that he had every intention of returning to St. James Parish as soon as he had found a suitable place to live; that he had made unsuccessful attempts to locate a residence in St. James; that he had purchased a lot in St. James (on January 31, 1970, five and one-half months after the will was made), upon which he intended to build a home. This Act of Sale contains a recitation that Jasmine was a resident of St. James Parish. In this connection, Jasmine testified that he purchased the property with the intention of returning to live in St. James Parish. His testimony is:
"My family was up there and I liked living up there all my life, so I had intended to move on back there as soon as I had the money or so to build my home up there."
Jasmine registered to vote in St. James Parish when he became twenty-one years of age, but upon his temporary move to St. John he had re-registered in the latter parish. His Voter Registration, made part of the record, indicates that he had voted in St. John nine times between 1966 and the date of the execution of the will; however, he testified that this change of registration to St. John Parish was for the purpose of supporting a "black" candidate who was running for office.
A person retains his bona-fide residence until he acquires another. This rule is in accordance with the doctrine that a domicile once gained remains until another is acquired, where the question is largely one of intention at an unsuspicious time. In Caufield v. Cravens, 138 La. 283, 70 So. 226 (1915), the Supreme Court stated:
"One does not, however, lose his status as an actual, bona fide, resident of a place, either because he finds it necessary to establish his family elsewhere, or does not, in the absence of his family, maintain a domestic establishment in such place. The question is one largely of intention, and the intention of a person, in that respect, is determined by his expression thereof, at times not suspicious, and his testimony, when called on, considered in connection with his conduct in the circumstances of his life."
We reject the contention of opponents that Jasmine lost his residence of origin because he found it necessary to live with his in-laws in St. John parish and that he registered and voted, on a number of occasions, in that parish. The evidence demonstrates that Jasmine's intention at an unsuspicious time (expressed in the Act of Sale) was to return to his parish of origin.
Accordingly, we conclude that Jasmine was a bona-fide resident of St. James Parish at the time he witnessed the nuncupative will by private act. The judgment is affirmed.
AFFIRMED.
REDMANN, J., concurs and assigns reasons.
SCHOTT, J., dissents and assigns reasons.
Whitney Jasmine resided, in the ordinary sense of the phrase, "in the place" (Vacherie, of St. James and St. John the Baptist parishes) in which decedent's nuncupative will by private act was executed. But Jasmine resided in the St. John parish part of Vacherie and the will was executed in the St. James parish part of Vacherie.
La.C.C. 1581's requirement of five witnesses "residing in the place" the will is executed would not by its wording disqualify witnesses who live in the small, rural "place" identified as Vacherie, as did the six witnesses here — notwithstanding that Vacherie is located principally in St. James parish but partly in St. John parish (in which part two of the six witnesses lived). C.C. 1594, however, expressly declares "residence in the place" should be understood "residence in the parish". It seems likely, nevertheless, that C.C. 1594 intends to expand "place" beyond village or town to the broader area of the whole parish, so that anyone from anywhere within the entire parish could be a witness, even though he does not reside in the "place", in the sense of village or area where the will was executed. The "place" Vacherie includes parts of two parishes and thus a literal interpretation of C.C. 1594 would defeat its evident purpose and contract "place" under our peculiar facts, disqualifying witnesses who do reside in the place where the will was executed but not in the parish where the will was executed.
C.C. 13's injunction not to disregard the letter of the law on the pretext of pursuing its spirit is not applicable here because, on our facts, the law is not "clear and free from all ambiguity". Applicable, instead, is C.C. 18:
The universal and most effectual way of discovering the true meaning of a law, when its expressions are dubious, is by considering the reason and spirit of it, or the cause which induced the Legislature to enact it.
Testacy is always favored by law, and C.C. 1594 evidently intends to favor testacy by qualifying more witnesses than C.C. 1581 appears to qualify, rather than to disqualify some witnesses that C.C. 1581 appears to qualify.
Accordingly, because Vacherie (of both St. James and St. John) was the "place" any witness residing in Vacherie is competent, notwithstanding that the will was executed in the St. James parish part of Vacherie and the witness's home is in the St. John parish part of Vacherie.
The substantive due process issue (under La.Const. art. 1 § 2 and art. 1 § 4, guaranteeing the right to dispose of property, subject to "reasonable statutory restrictions", and under U.S.Const. Amend. 14 § 1) need not be elaborated because Vacherie's being but one "place" within C.C. 1581 (despite C.C. 1594) distinguishes this case from Soileau v. Ortego, 1938, 189 La. 713, 180 So. 496. Were that not so, Soileau would be distinguishable by its failure to raise the constitutional issue. Especially as applied to a Vacherie situation, because of the statutory trap set by C.C. 1581's "place" and sprung by C.C. 1594's rule that place means parish, the rule that a testament must have two extra witnesses unless all five witnesses live within the parish of execution is scarcely more reasonable than the same requirement if the will is written on a Tuesday, or if some of the witnesses are redheads.
I would prefer to reach the result my colleagues have in this case because to do otherwise is to declare the will invalid because of a highly technical defect in its confection. Nonetheless the jurisprudence is to the effect that unless the technical requirements for the confection of a nuncupative will under private signature as set forth in C.C. Art. 1581 are complied with the testament is invalid. Soileau v. Ortego, 189 La. 713, 180 So. 496 (1938).
Art. 1594 declares without equivocation that the phrase "residing in the place where the will is received" in Art. 1581 is to be understood as "their residence in the parish where that testament is made." Whitney Jasmine, the witness to the will, whose residence is at issue here, had absolutely no residence whatsoever in St. james parish at the time the will was confected.
To uphold the validity of this will we must reach a conclusion which is diametrically opposed to the jurisprudence as expressed in Purdy v. Klock, 179 La. 902, 155 So. 394 (1934). There the court was confronted with the problem of a witness who had temporary residence in the parish where the will was confected but a permanent residence elsewhere. The court noted the distinction between a domicile and a residence and held that all that was necessary for compliance with Arts. 1581 and 1594 was for the witness to have a residence in the parish where the will was made even though such residence might only be temporary. Jasmine might very well have maintained in St. James Parish a domicile which as is pointed out in the Purdy case, is a legal relation between a person and a place, but he had no residence there.
I would reverse the judgment of the trial court.