LSU Law: Digest of 1808

SECTION VI - OF THE OPENING AND THE PROOF OF WILLS, AND OF TESTAMENTARY EXECUTIONS

Art. 153. No testaments or codicil can have effect in the territory, until it has been presented to the Judge of the parish in which the testator died, if he died within the territory, or in which his principal estates lie, if he died out of the territory; the said judge shall order the execution of the said testament or codicil, after its being opened and proved, in the cases prescribed by law.

Art. 154. The execution of a testament or codicil shall not be ordered until the decease of the testator has been sufficiently proved to the judge to whom the said testament or codicil is presented.

Art. 155. When the decease of the testator has been sufficiently proved to the judge to whom the testament or codicil is presented, he shall immediately proceed to open it, if it be sealed, and to the proof of it in presence of the notary and the witnesses who were present at the making of it, and who are on the spot, or duly called.

Art. 156. Nuncupative testaments and codicils received by public acts, do not require to be proved, that their execution may be ordered, they are full proof of themselves, unless they be maintained to be forged.

Art. 157. Nuncupative testaments and codicils under private signature, cannot be executed until they have been proved by the declaration on oath or affirmation of at least three of the witnesses who were present when they were made, in case of a testament, and of at least two of the witnesses, in case of a codicil.
The declaration of the witnesses required for said proof, must state in substance not only that they recognize the testament or codicil presented to them, as being the same that was written in their presence by the testator himself or by another person by his direction, or which the said testator had written or caused to be written out of their presence, but which he declared to them contained his last will, as the case may be; as also that they recognize their signatures, and that of the testator, at the foot of the said testament or codicil, if they have signed it, or the signature of him who signed for them respectively in case of their not having signed for want of knowing how.

Art. 158. Mystic testaments or codicils cannot be executed until they have been in like manner proved by the declaration on oath or affirmation of at least four of the witnesses who were present at the act of superscription, in case of a testament and of at least three witnesses in case of a codicil.
The declaration of the witnesses required for the proof of mystic testaments and codicils, must state in substance that they recognize the sealed packet presented to them, as being the same that the testator delivered to the notary in their presence, declaring to him that it contained his testament or codicil, as the case may be; as also that they recognize their signatures and that of the notary at the foot of the act of superscription, if they have signed it, or the signature of him who signed for them respectively in case they have not signed the act of superscription, for want of knowing how.
When the notary who has passed the act of superscription, is one of the witnesses appearing, his declaration on oath or affirmation, with that of two witnesses only in case of the proof of a testament; and with that of a single witness, if a codicil alone is to be proved.

Art. 159. If any of the witnesses who were present at the making of the noncupative testament or codicil under private signature, or at the act of superscription of the mystic testament or codicil, be dead or absent, so that it be not possible to procure the number of witnesses prescribed by law for proving said testament or codicil, it will be sufficient to prove it by the declaration of the witnesses living being near the place.
And if none of the persons who were present at the said acts are living near the place, but all are absent or deceased, it will be sufficient for the proof of said testaments and codicils, if two credible persons make a declaration on oath or affirmation that they recognise the signatures of the different persons who have signed the will or the act of superscription.

Art. 160. The olographic testament or codicil shall be opened, if it be sealed, and it must be acknowledged and proved by the declaration or affirmation of two credible persons, who must attest that they recognise the testament or codicil as being entirely written, dated and signed in the testator's hand writing, as having often seen him write and sign during his lifetime.

Art. 161. When a nuncupative testament or codicil has been put under an envelope, or sealed merely through precaution, on the part of the testator without any act of superscription or any indication of the names of the witnesses who have signed the testament or codicil, the judge shall open it in presence of the party requiring it, and of two witnesses called in for that purpose.

Art. 162. When the judge has complied with all the formalities required for the opening and proving of the testaments and codicils, he shall order their execution, and he shall moreover prescribe that such of said testaments as have not been passed by public act, be deposited, after his having inscribed on them his paraph ne varietur at the top and bottom of each page.

Art. 163. The execution of the dispositions contained in testaments and codicils, is usually confided to a testamentary executor named by the testator.

Art. 164. The testamentary executor may be appointed either by testament or codicil.

Art. 165. The testator may name one or several testamentary executors.

Art. 166. The testator may give his testamentary executor the seizin of the whole of his succession, or only of a certain determinate portion, according as he has expressed himself, saving the restrictions contained in the following articles.
But this seizin cannot continue beyond a year and a day from the decease of the testator, if he died in the territory, or from the day on which his death was first known, if he died out of the territory.
If the testator has not granted the seizin to the testamentary executor, the latter cannot require it.

Art. 167. The testator may express his intention to grant the seizin of his estate to the testamentary executor, either in express terms, by authorising him to take possession judicially or extra-judicially of the whole or a part of the estate of his succession after his death, or by merely appointing him testamentary executor and detainer of his estate, the word detainer sufficiently announcing that the executor is to be seized of the property of the succession.
But if the executor testamentary be appointed merely and simply testamentary executor, without any other power, his functions are confined to see to the execution of the legacies contained in the will, and to cause to be made the inventory and other conservatory acts of the property of the succession.

Art. 168. Even when the testamentary executor has been appointed detainer of the property, or expressly authorised by the testator to take possession of it, if there be any forced heirs, those heirs may prevent the seizin of the testamentary executor by offering him the necessary sums, or delivering to him sufficient effects for the payment of the legacies, or by securing their payment.

Art. 169. When of the testator's heirs some are absent or not represented in this territory, the testamentary executor, whether the seizin be granted to him or not and whether those heirs be forced or voluntary, shall be authorised to take possession of the property of the succession, to cause it to be sold, and to remain in possession of the portion accruing to the absent heir or heirs, deducting the debts and legacies, until those heirs shall have sent their power of attorney, or till the expiration of the year of the testamentary execution.

Art. 170. He who cannot obligate himself, cannot be a testamentary executor.

Art. 171. A married woman cannot accept testamentary executorship without consent of her husband.
If there is between them a separation of property, she may accept it with the consent of her husband, or on his refusal, she may be authorised by the court, conformably to what is prescribed by the title of husband and wife.

Art. 172. A minor cannot be testamentary executor even with the authorisation of his tutor or curator.

Art. 173. The testamentary executor shall cause the seals to be affixed, if there be any minor, interdicted or absent heirs; he shall cause an inventory of the property of the succession to be made by the parish judge or by any notary duly authorised to that effect by said judge, and in presence of the presumptive heir or him expressly called, unless the testator should have duly authorised said executor by his last will to make said inventory without the interposition of justice, in which case, the inventory may be made under private signature, provided it be afterwards approved by the parish judge and duly recorded in a public office.
The executor shall cause the moveables to be sold, if the assets do not suffice to discharge the legacies.
He cannot sell the immoveable property, when all the heirs are present in the territory, unless he be expressly authorised to that effect by the testator; and the heirs can even hinder the sale, if they be forced heirs and all present in the territory.
The testamentary executor shall see that the will be executed, and in case of any dispute as to its execution, he may interfere to maintain its validity.
At the expiration of the year of his executorship, he must render an account of his administration.

Art. 174. When the testamentary executor has the seizin of the property of the succession and is directed to sell it, he must proceed to the sale and to the payment of the debts of the succession in the manner prescribed to the creditors of absent heirs and of vacant successions in the title of successions.
As to whatever concerns the administration of the property of the succession which they hold, they must conform to the rules prescribed to tutors or curators of minors, except that they have not recourse to the meetings of families, and are not bound to pay interest for the capitals in their hands.

Art. 175. The testamentary executor is not bound to accept the executorship nor to give security when he does accept it.

Art. 176. The powers of the testamentary executor, do not go to his heirs.

Art. 177. If there be many executors who have accepted, any one of them may act for them all, but they shall all be jointly and severally accountable for the property subject to the executorship, unless the testator has divided their functions, and each of them has confined himself to that which to him was allotted.

Art. 178. The expences incurred by the executor for affixing the seals, the inventory, the accounts and the other charges relative to his functions, shall be defrayed out of the succession.

Art. 179. An executor who has had the seizin of all the estate of the succession, whether he were charged to sell it or not, shall be entitled for his trouble and care, to a commission of two and a half per cent. on the whole amount of the estimate of the inventory, making a deduction for what is not productive and for what is due by insolvent debtors.
If the executor has not had a general seizin, his commission shall only be on the estimated value of the objects which he has had in his possession, and on the sums put into his hands for the purpose of paying off the legacies and other charges of the will.
The commission shall be shared among the executors, if there be several, and if their functions were not divided by the testator.
In this latter case, they shall be entitled to a commission on what has fallen to the administration of each respectively.

Art. 180. Testamentary executors to whom the testator has bequeathed any legacies or other gift by his will, shall not be entitled to any commission, unless the testator has formally expressed the intention that they should have the legacies over and above their commission.

Art. 181. In no case shall the commission allowed to the testamentary executors affect the legitime reserved to the forced heirs of the testator.

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