Cox v. Lea's Heirs

Citations

• 110 La. 1030
• 35 So. 275
• 1902 La. LEXIS 194

Syllabus

<p>WILL — PROBATE—ATTACK—FRAUD—PRESCRIPTION — ACTIONS FOR NULLITY.</p> <p>1. Proceedings leading to the probate of a will in common form are open to attack from those not made parties thereto upon any grounds that would he sufficient to support an action to establish the nonexistence of the will.</p> <p>2. Where the plaintiffs, attacking an instrument probated as a will, rely on a charge of fraud, to avoid prescription, the charge should be specifically made, and should be coupled with averments which, if sustained, would acquit them of laches in the matter of the discovery of the fraud.</p> <p>3. Actions for the nullity of wills, based upon alleged defects ip the manner of their execution, are barred by the prescription of five years, under Civ. Code, art. 3542; but that prescription is inapplicable to an action, the purpose of which is to have it decreed that an instrument probated in common form, and without notice, as a last will, was never, in point of fact, signed, and that the mark in place of the signature was never affixed, by the putative author.</p> <p>On Rehearing.</p> <p>4. Actions for the nullity of testaments are prescribed by five years. Civ. Code, art. 3542.</p> <p>5. Where no testament has been made, and that which purports to be a testament has been probated, the suit to annul does not fall within the five-years term of prescription.</p> <p>6. The issues came before the court on the hearing of an exception which admits temporai’ily the facts alleged.</p> <p>7. They are, in substance, that there was no will at all, and by implication, at least, suggests a wrong, into which inquiry should be made, and therefore the case is remanded.</p> <p>(Syllabus by the Court.)</p>