#### SUCCESSION OF Charles Reed GRESHAM.

No. CA 5770.

Court of Appeal of Louisiana, Fourth Circuit.

April 9, 1987.

Rehearing Denied May 20, 1987.

*157Stuart A. McClendon, McClendon & Denkman, Metairie, for Claire S. Hartzell, appellant.

Stanley McDermott, Jr., Stephen P. Schott, Montgomery, Barnett, Brown, Read, Hammond & Mintz, New Orleans, for Wood Brown, III as dative testamentary executor for the succession of Charles Reed Gresham, appellee.

Before GULOTTA, KLEES, CIACCIO, WARD and ARMSTRONG, JJ.

CIACCIO, Judge.

In this case we are called upon to determine the validity of a Louisiana statutory will which requires that the will must be executed before a notary and two witnesses. One of the required witnesses to this will was the sole legatee, wife of the testator. At the time the will was executed, the Statute did not declare any person incapable of being a witness, and the issue is whether those persons who were declared incapable of being witnesses to testaments authorized by the Civil Code were incapable of witnessing a statutory will.

On July 28, 1955, Charles Reed Gresham executed a statutory will drafted in accordance with La.R.S. 9:2442. The will bequeathed the entire estate to Emma Leonard Gresham, the testator’s second wife, and named her executrix. The will was witnessed by two persons, one of whom was Emma Leonard Gresham. Charles Gresham died on April 15, 1979. The 1955 will was admitted to probate, and Emma Leonard Gresham was confirmed as testamentary executrix. Claire Stewart Hart-zell, sole child of the testator, filed a petition to annul the will. In response to this petition, the widow executrix filed an exception of no cause of action which was denied by the Trial Court. This Court dismissed Mrs. Gresham’s appeal from that ruling as an interlocutory judgment causing no irreparable harm. *Succession of Gresham,*480 So.2d 443 (La.App. 4th Cir. 1985). The Trial Judge later dismissed the petition to annul the will, noting however that the bequest of the entire estate to Mrs. Gresham impinged upon the legitime of the forced heir, Mrs. Hartzell. In his reasons for judgment, the Trial Judge stated:

> Decedent’s will was executed in the form of a statutory will (R.S. 9:2442), on July 28, 1955. His wife, the universal legatee, was one of the witnesses to the will. Under the laws applicable at that time, decedent’s will is valid.

> Nothing in the statute in 1955 disqualified a legatee from witnessing a statutory will. Civil Code Article 1592 did not apply to statutory wills at that time. When the statute was amended in 1974, the Act was not given retroactive application; therefore, Mr. Gresham’s will is valid under the law that existed at its confection.

Mrs. Hartzell appeals, asserting that the legacy to Mrs. Gresham, or in the alternative the entire will, should be annulled because a named legatee may not be a witness to a will, and further, that the law at the time of the will’s execution did not permit a married woman to be a witness to the will of her husband.

We affirm the Trial Court judgment.

The Louisiana Statutory Wills Act (R.S. 9:2442 *et seq.),*as enacted in 1952 and as in effect in 1955 when Mr. Gresham made his will, did not expressly provide qualifications for the two attesting witnesses nor declare any person incapable of witnessing the testament.

The identical issue presented in this case was considered by this Court in the case of *Woodfork v. Sanders,*248 So.2d 419 (La.App. 4th Cir.), cert, denied 252 *158So.2d 455 (La.1971), wherein the validity of a statutory will was attacked because the universal legatee was one of the attesting witnesses to the will. *Woodfork*held that the codal qualifications for testamentary witnesses were inapplicable to a statutory will. The opinion specifically held that the prohibition against legatees witnessing testaments found in C.C. Art. 1592 has no application to statutory wills.1

Counsel for appellant relies upon language contained in the Supreme Court opinion rendered in *Succession of Eck,*233 La. 764, 98 So.2d 181 (1957), to urge a result contrary to *Woodfork.*However, both the *Eck*opinion and the case of *Succession of Hackett,*187 So.2d 485 (La.App. 4th Cir.1966), were considered by the *Woodfork*Court and were either distinguished or found not to be controlling. The Supreme Court denied the writ application although the *Eck*and *Hackett*cases were extensively discussed in the *Wood-fork*opinion.

In order to reverse the trial judge we must overrule *Woodfork.*We decline to do so as we find that it is the correct statement of law for wills executed prior to the 1964 and 1974 amendments of the Statutory Wills Act. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

WARD, J., dissents and assigns reasons.

ARMSTRONG, J., dissents for the reasons assigned by WARD, J.

1

. Although *Woodfork*was legislatively overruled by Act 246, Sec. 1 of 1974 which amended R.S. 9:2442, to expressly provide that a "statutory will ... shall be executed in the presence of a notary and two competent witnesses not otherwise disqualified under Article 1591 and 1592 of the Civil Code ...", the act was not made retroactive and is not controlling in this case involving a will executed in 1955.

WARD, Judge,

dissenting.

I have reviewed this case, as we must, with a conscious bias toward upholding the testament of Charles Gresham. *Lebleu v. Manning,*225 La. 1087, 74 So.2d 384 (1954). Nonetheless, I disagree with the majority’s conclusion that the will is valid; the will is invalid because it was witnessed by the sole legatee, a person disqualified as a witness by Civil Code Article 1592. The Statutory Wills Act, its legislative history, and the jurisprudence all indicate that from the date of its enactment the Statutory Wills Act was intended to be read with the provisions of the Civil Code, and where incomplete, to be supplemented by those codal provisions not in conflict. The Fourth Circuit *Woodfork*case, relied upon by the majority, is the only exception.

As the majority recognizes, the Statutory Wills Act, as it read in 1955 when Gresham made his will, provided neither qualifications nor disqualifications for the two attesting witnesses. The Civil Code, however, provided the following incapacities directly applicable in 1955 to witnesses to codal wills:

> 1. Children who have not obtained the age of sixteen years complete.

> 2. Persons insane, deaf, dumb or blind.

> 3. Persons whom the criminal laws declare incapable of exercising civil functions.

> 4. Married women to the wills of their husbands.

> Art. 1591.

and,

> Neither can testaments be witnessed by those who are constituted heirs or named legatees, under whatsoever title it may be.

> Art. 1592.

In *Succession of Eck,*the Supreme Court, when considering the capacity of a witness to a will executed in 1956, under the same law in effect when Gresham made his will, referred to Civil Code Articles 1591 and 1592. The Court found that application of the codal incapacities was proper because, at the time, there were no qualifications in the Statutory Wills Act for witnesses to a will drawn under its provisions. The Supreme Court’s reference to the Civil Code to determine who was disqualified as a witness is a methodology to be followed; it is controlling, not obiter dictum, as the *Woodfork*opinion characterizes it.

*159Yet, the majority relies solely upon this Court’s *Woodfork*decision. *Woodfork,*I submit, should not be followed. As I will explain, it was wrong when it was decided, but even if it has some validity as the majority believes, it is distinguishable from the case before us.

*Woodfork*was wrong because the *Eck*methodology was not obiter dictum, even assuming we are bound by common law stare decisis distinctions between dictum and the holding of a case. In *Eck,*the will was challenged because it was witnessed by the wife of the legatee. The Supreme Court held the Civil Code qualifications for witnesses were applicable, but even under the Civil Code, the wife of a legatee is not disqualified. While reasonable opinions may differ as to what is obiter dictum, our Supreme Court obviously does not consider the *Eck*methodology obiter dictum — to be ignored. To the contrary, the Supreme Court has itself cited *Eck*as authority for the rule of law that the Civil Code should be integrated into the Statutory Wills Act whenever the statutory wills provisions are incomplete. *Evans v. Evans,*410 So.2d 729 (La.1982). This unreserved clear reliance upon *Eck*must surely indicate that our Supreme Court believes the *Eck*holding was authority for reference to the Civil Code and not obiter dictum.

Not only was *Woodfork*wrong when it distinguished *Eck,*it was wrong when it ignored this Court’s own opinion in *Succession of Hackett,*187 So.2d 485 (La.App. 4th Cir.1966), and I am not satisfied that the majority opinion has sufficiently considered *Hackett.*In *Hackett,*this Court remanded the case to the Trial Court to give counsel an opportunity to “prove the identity of the legatee and ... determine the validity of the will” after it became apparent that one of the witnesses to the statutory will was a legatee. *Woodfork*rejected *Hackett,*finding that “counsel in *Hackett*did not afford the question much study” and that this Court had merely accepted counsel’s unstudied concession of the proposition that the Civil Code's disqualification of witnesses was applicable to the statutory will. I cannot believe that this Court would have blindly accepted an erroneous legal proposition, and entered a remand based upon that proposition, merely because the point was conceded by counsel. Rather, as I read *Hackett,*the Court found the incorporation of the codal requirements into the Statutory Wills Act so well established that the matter required no discussion. Therefore, I believe *Hackett,*like *Eck,*is controlling.

*Woodfork*has been severely criticized for ignoring *Succession of Eck*and *Succession of Hackett.*Additionally, commentators have pointed out the implausability of Woodfork’s premise — that the legislature intended literacy to be the only qualification for witnesses despite common and civil law traditions, firmly based upon public policy, which restricted witnessing of wills by legatees. *Note, Successions*— Statu*tory Will Valid although Witnessed by Legatee,*46 Tul.L.Rev. 558 (1972); *Work of the Appellate Courts*— 1970-1971, 32 La.L. Rev. 165, 203 (1972).

*Woodfork*itself was overruled by the legislature in 1974. Act 246, Sec. 1 of 1974 amended R.S. 9:2442 to expressly provide that a “statutory will ... shall be executed in the presence of a notary and two competent witnesses not otherwise disqualified under Article 1591 and 1592 of the Civil Code....” This amendment constitutes a “clear legislative expression that the provisions of our civil code generally applicable to all wills and not in conflict with R.S. 9:2442, likewise apply to the statutory will.” *Succession of Melancon,*330 So.2d 679, 682 (La.App. 3rd Cir.1976).

Additionally, *Woodfork,*if not wrong, and if it has some validity, is factually distinguishable from the instant case. In 1964 after Charles Gresham made his will, the Statutory Wills Act was amended to provide that “those who know not how or are not able to sign their names, and those who know not how or are not able to read, cannot ... be attesting witnesses” to a will made under the Act. Primarily on the basis of these disqualifications which were added to the Statutory Wills Act in 1964, *160*Woodfork*held that the codal qualifications for testamentary witnesses were not applicable to a statutory will. Although the *Woodfork*opinion (incorrectly) characterized the *Eck*holding as obiter dictum, *Woodfork*also distinguished *Eck*because when the *Eck*will was written, there were *no*disqualifications in the Statutory Wills Act; when the *Woodfork*will was written there were. The disqualifications which were added by the 1964 amendment only disqualified as witnesses those persons who were unable to read and sign their names, but since the Statutory Wills Act was no longer “silent” as to disqualifications, *Woodfork*reasoned that only those disqualifications in the Act were applicable, and hence reference to the Civil Code was inappropriate.

I find *Woodfork*factually distinguishable from the case before us in the same way that *Woodfork*distinguished the *Eck*case. Simply put, when Charles Gresham executed his will in 1955, the Statutory Wills Act contained no disqualifications for witnesses, just as it contained none when the *Eck*will was executed in 1956. Gresham’s will was executed before the 1964 amendment, relied upon in *Woodfork,*which placed disqualifications for witnesses in the Statutory Wills Act. Thus, *Eck*and not *Woodfork*should determine the validity of Gresham’s will.

Consequently, even if *Woodfork*has some validity, it is applicable only to those testaments executed after the 1964 amendment, and before the effective date of Act 246 of 1974, which applies the disqualifications of the Civil Code to statutory wills. Since Gresham’s will was executed before the 1964 amendment, *Woodfork*is inapplicable, and for the same reason, it cannot be said that Gresham relied upon *Woodfork*when he executed his testament.

In sum, the law at the time of the execution of the will as well as the law as it stood on Gresham’s date of death, following the 1974 amendment to R.S. 9:2442, mandate anullment of the will, because in 1955 when Charles Gresham executed his will and in 1979 when he died, a legatee was incapable of witnessing a will.