
    (70 South. 63)
    No. 21581.
    Succession of HERNANDEZ.
    (Oct. 18, 1915.
    Rehearing Denied Nov. 15, 1915.)
    
      (Syllabus by the Court.)
    
    1. Wills &wkey;>225 — Action to Annul — Right to Maintain.
    An action to annul a will on the ground of fraudulent suggestions or “undue influence’” or “captation” is repelled by the plain text of article 1492 of the Civil Code.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. § 547; Dec. Dig. <&wkey;>225.]
    2. Wills <&wkey;94 — Contemporaneous Verbal Agreement — V alidit y.
    An alleged contemporaneous verbal agreement, between the testatrix and her husband, the universal legatee, that he would hold the estate for the sole use and benefit of her children, is null and void, as verbal testaments are prohibited by article 1576 of the Civil Code.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 226, 236; Dec. Dig. &wkey;94.]
    3. Pleading <&wkey;8 — Petition — Conclusion oe Law.
    A general allegation that a will is void both under the laws of the state where made and of the state of the domicile of the testatrix states merely a conclusion of law, and discloses no cause of action.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 12-28%, 68; Dec. Dig. &wkey;j8J
    Appeal from Civil District Court, Parish of Orleans; George H. Théard, Judge.
    In the matter of the succession of Grace Norton Hernandez. Action by Mrs. Grace Hernandez Voorhies against Walter Hernandez to annul the will of Grace Norton Hernandez. From a judgment for defendant, plaintiff! appeals.
    Affirmed.
    The following is the petition referred to in the opinion:
    “The petition of Mrs. Grace Hernandez, wife of William F. Voorhies, and of her husband, William F. Voorhies, to aid, assist, and authorize her, respectfully shows:
    “(1) That her mother, Grace Norton, late wife of Walter Hernandez, died in 'New Orleans, her domicile, on December 4, 1912.
    “ (2) That her said mother was married but once, and then to Walter Hernandez. That there were three children issue of the said marriage, viz.: Your petitioner, of age and a resident of this city; Walter Hernandez, Jr., a minor and a resident of this city; and Juanita Hernandez, a minor and a resident of this city— and the said persons are the sole heirs at law of the decedent.
    “(3) That said Mrs. Grace Norton Hernandez was reared, married, and bora two of her children in the city of New Orleans. That she inherited from her father an estate situated in Douisiana, and under operation of the law of Louisiana came into possession of the same during her marriage with Walter Hernandez, her said husband. That said Mrs. Hernandez was a citizen of Louisiana, domiciled therein at all times. That she was a resident of Louisiana and domiciled therein at the time of her death, which occurred on the 4th day of December, 1912.
    “(4) That besides her children aforesaid decedent was survived by Walter Hernandez, her husband, between whom and herself there existed a community of acqugts and gains.
    “That she left a large and valuable estate, consisting of real and personal property, situate in the city of New Orleans and state of Louisiana, the bulk of which was her separate property, and a part of the said estate was community, and the said community was indebted to her separate estate.
    “(5) That said Walter Hernandez, surviving husband of the deceased, has presented in this court an exemplified copy of a certain will purporting to have been made on October 28, 1912, in Brooklyn, in the city of New York, and to have been admitted to probate in the courts of the city of New York, and said exemplified copy of said will and probate has been filed herein, and said Walter Hernandez has been permitted to qualify as executor thereunder. Petitioner shows that said will, however, is not executed according to the laws of Louisiana, nor is it valid in form as a Louisiana will; and, if valid in form as .a will made by a citizen of Louisiana temporarily in New York, which is denied, the disposition of said will cannot be enforced in the state of Louisiana.
    “That the said will is void under the laws of New York and void under the laws of Louisiana.
    “(6) Petitioner avers that said will was obtained by fraud practiced by said Walter Hernandez upon his said wife and under duress exercised by him upon his said wife, said fraud and duress having been practiced and exercised upon said Mrs. Hernandez previous to and at the time of the actual execution of said will. That the said Walter Hernandez, scheming to possess himself of the large and valuable estate of his deceased wife, and to defraud his children of their interest and share of the same, advised his wife, who was then and there ill and about to undergo a dangerous operation, that in case of her death her estate would pass to her collateral kinspeople, and it would be taken away from her children unless she should make a will in favor of her said husband for the use and benefit of her said children and to protect them and preserve for them the said estate. Further advised her that, if she made a will in that manner, he would receive the property in trust for the said children, and would see that they were placed in possession of same. That he further advised his said wife that her said children were unable to take care of said estate, and that the only possible way for the children to receive the same was by and through the medium of their father, the said husband of Mrs. Hernandez. That notwithstanding the constant reiteration of this advice, and notwithstanding the pressure. brought to bear on his said wife by said Hernandez to make such a will, she did not in fact execute a -will, and she refused to execute one, and said she did not wish or intend to disinherit her children or to dispossess them of their inheritance in her estate, and that she would not do anything to deprive them of her estate. That finally said Hernandez caused the will to be drawn which has been presented herein. That said will was drawn without consulting the said wife, and was contrary to her wishes and desires. That he presented the said typewritten document to his said wife and by force and fraud, and by holding her in fear and in duress, forced her to sign the same, and the said instrument is not, therefore, the last will and testament of the deceased, and is without any effect under the circumstances.
    “That, at the moment at which he obtained her signature to the said will, said Walter Hernandez again repeated to said Mrs. Hernandez, and it was one of the arguments used to force her to sign the will, that the same was purely a matter of form; that she was thereby taking care of her children, and that he would see that they received the said estate through his hands, and the said will was executed by the said decedent under the belief created by said Hernandez that she was thereby and in fact executing such a will as she desired to pass the property to her children, who would receive the same through her said husband; and that he was only a person interposed for the purpose of receiving and conveying the estate to the said children. That said Hernandez, having created that belief, agreed to receive the estate on that condition and to deliver it to said children.
    “(7) Petitioner shows that, immediately after the execution of said will, said Mrs. Hernandez returned to the city of New Orleans, she being then and there ill of the sickness from which she died; that she was placed immediately in the hands of a surgeon, who operated upon her; that she died from the effects of said operation shortly after the same was performed; that she never recovered her freedom of action or her ability to act for herself from the moment she executed the said will to the hour of her death, being constantly in the company and under the influence of her said husband, and constantly under the belief that the will which she had given to him was a will for her children, and that her husband was a mere substituted person in their behalf.
    “(8) Petitioner shows the estate of the decedent was situated in New Orleans and was here at the time of her death ; that her children were in New Orleans; that her body was removed from her late residence in New Orleans and taken to New York; and that the said Hernandez immediately upon his arrival in New York caused said will to be probated in New York, and ever since the probate thereof has claimed that he is the beneficiary thereunder, and that the effect of the same is to pass the entire estate to him, to the exclusion of petitioner and the other children of the decedent, while the truth and fact is to the contrary, and said will did not in fact convey any interest to the said Hernandez.
    “(9) That petitioner’s brother and sister, Walter Hernandez, Jr., and Juanita Hernandez, are minors and represented by a tutor. That this court has heretofore appointed tutors ad hoc to represent the said minors.
    “That the said pretended last will should be annulled for the causes hereinabove set forth.
    “Wherefore; petitioner prays that Walter Hernandez, in his individual capacity and in hia pretended capacity as universal legatee and! executor of the late Grace Norton Hernandez,, may be cited to appear and answer this petition; that Walter Hernandez, Jr., and Juanita Hernandez, through their duly appointed tutors! ad hoc, may be cited to appear and answer this petition; and, after due proceedings had, that there be judgment in petitioner’s favor and against said defendants, decreeing the said pretended last will and testament of the late Mrs. Grace Norton Hernandez, executed on the 28th day of October, 1912, to be null and void; and that the said will be annulled and set aside; and petitioner prays for costs and for all general and equitable relief.”
    Dart, Kernan & Dart, of New Orleans, for appellant. McOloskey & Benedict, of New Orleans, for appellee.
   LAND, J.

The succession of Grace Norton Hernandez was opened in this state on the petition of Walter Hernandez, the surviving husband, which alleged, in substance:

That Mrs. Hernandez died in the city of New Orleans on December 4, 1912, her legal domicile having been that of petitioner, her husband, in Brooklyn, New York City.

That Mrs. Hernandez left a last will and testament, dated October 28th, made in. Brooklyn, in the state of New York, which said will was offered for probate in the Surrogate Court of Kings County, N. Y., on December 10, 1912, and the said Walter Hernandez, named as executor in said testament, prayed for confirmation as such.

That the probate of said will was opposed by Walter Hernandez’s daughter, Grace Hernandez, wife of William E. Voorhies, of the .city of New Orleans, and his minor children, Walter Hernandez and Juanita Hernandez, and, after due contradictory proceedings had, said Surrogate Court, by decree of April 4, 1914, admitted said will to probate and confirmed said Walter Hernandez as executor thereunder.

That the said opponents prosecuted an appeal or writ of error to the Appellate Division Of the Supreme Court of the State of New York, and by final decree therein rendered on October 3, 1914, the appeal so taken was dismissed; said appeal having been abandoned by consent. That the foregoing facts more fully appeared from an exemplified copy of the proceedings had in said courts annexed to the petition as part thereof.

That the petitioner prayed that the aforesaid last will and testament of his deceased wife, Grace Hernandez, be filed, registered, and ordered executed, and that ancillary letters of executorship be granted to the petitioner thereunder.

The orders as prayed for were rendered and signed by the judge a quo on November 12, 1914.

The inventory taken under order of court embraced movables, appraised at $6,920.57, and real estate, appraised at $12,500; total, $19,420.57.

Walter Hernandez protested against the inclusion of any movables in the inventory, because the same were subject to the jurisdiction of the aforesaid Surrogate Court of New York, and formed no part of the decedent’s succession in the state of Louisiana; also protested against the inclusion of certain securities in the names of Jacob B. Harrison and Mrs. J. B. Harrison, the latter having become the wife of the said Walter Hernandez.

Some of the heirs, through counsel, protested against the alleged exclusion of certain movables from the inventory, and more especially of $90,000 of jewelry, coupons, stocks, and bonds removed from the bank box belonging to the estate of the decedent.

Walter Hernandez duly qualified as executor by taking the required oath, and giving bond and security in the sum of $24,300, conditioned according to law.

The litigation now on appeal before this court was initiated on April 10, 1915, by the filing of the petition of Mrs. Grace Hernandez, wife of William E. Yoorhies, seeking to annul the said will of the decedent on numerous grounds.

Defendant excepted to the petition on the ground that same sets forth no legal right . or cause of action.

After a hearing, the judge a quo rendered judgment on the exception, as follows:

“It is ordered, adjudged, and decreed that said plaintiff do within ten days from this date amend article 5 of her petition by alleging in what particulars the will in question is not executed according to the laws of Louisiana and is not valid in form as a Louisiana will; by alleging dispositions of said will, if valid, cannot be enforced in Louisiana; and by alleging in what particulars said will is void under the laws of New York and of Louisiana.
“It is ordered, adjudged, and decreed that the averments in articles 6 and 7 of said petition disclose no cause or right of action, and that plaintiff’s demand for annulling said will in so far as said demand is based upon said averments be dismissed.”

Plaintiff refused to amend her petition, and appealed.

Plaintiff’s voluminous petition appears in the margin.

Paragraph 3 of the petition alleges:

“That said Mrs. Hernandez was a citizen of Louisiana, domiciled therein at all times; that she was a resident of Louisiana and domiciled therein at the time of her death, which occurred on the 4th day of December, 1912.”

Paragraph 5 of the petition contains the following allegation:

“Petitioner shows that said will, however, is not executed according to the laws of Louisiana, nor is it valid in form as a Louisiana will; and, if valid in form as a will made by a resident citizen of Louisiana temporarily in New York, which is denied, the dispositions of said will cannot be enforced in the state of Louisiana.
“That the said will is void under the laws of New York and void under the laws of Louisi-

As held by our learned brother below, these allegations are defective in not stating in what particulars the will in question is not executed according to the laws of Louisiana, and is not valid in form as a Louisiana will, and in what particulars said will is void under the laws of New York, and what dispositions of said will, if valid, cannot be enforced in Louisiana.

In State v. Hackley, Hume & Joyce, 124 La. 862, 863, 50 South. 775, this court said:

“The validity, vel non, of a title, is the result which flows as a matter of law from the facts which render the title valid or invalid. To say to a defendant that his title is invalid is merely to convey to him the expression of a legal opinion on the condition of his title. It is not to inform him of the facts from which the invalidity of his title is sought to be deduced. * * * ‘Facts, not conclusions of law, must be alleged in pleadings.’ ”

The petition in this case alleges no defects in the form or the confection of the testament, upon which, as a matter of law, the invalidity of the will can be predicated.

Other paragraphs of the petition allege, in general terms, that the defendant used force, fraud, and duress to obtain the signature of his wife to the will in question; but an analysis of the allegations shows that Mrs. Hernandez was induced by her husband to execute the will by false suggestions as to the legal rights of herself and children, and the necessity of willing her estate to him in order to preserve the property for them.

The petition alleges that:

“The defendant finally obtained the signature of his wife to the will, “and it was one of the arguments, used to force her to sign the will, that the same was purely a matter of form, that she was thereby taking care of her children, and that he would see that they received the said estate through his hands, and the said will was executed by the said decedent under the belief created by said Hernandez that she was thereby and in fact executing such a will as she desired to pass the property to her children, who would receive the same through her husband, and he was only a person interposed for the purpose of receiving and conveying the estate to the said children.
“That said Hernandez, having created that belief, agreed to receive the estate on that condition and to deliver it to said children.”

It necessarily follows from these allegations that Mrs. Hernandez knew that she was executing a will in favor of her husband, with the verbal understanding that he would deliver the property to their children.

The petition admits that said will has been probated in the state of New York, and that Hernandez has ever since claimed that he is the beneficiary thereunder.

The will is not in the transcript of appeal, and is not included in the list of documents specified by the plaintiff for insertion in said transcript. We, howevér, infer from the petition that the will nominated absolutely and without condition, the husband, as-universal legatee.

The alleged verbal understanding or agreement that Hernandez would hold the estate for the children was an absolute nullity. Verbal testaments are prohibited. Civil Code, art. 1576. Testaments must be' drawn up in writing. Id. art. 1575. If the formalities prescribed are not observed, the testaments are null and void. Id. art. 1595.

As to the alleged fraudulent suggestions, or undue influence, proof is not admitted under our law and jurisprudence. C. C. art. 1492; Zerega v. Percival, 46 La. Ann. 590, 15 South. 476; Succession of McDermott, 136 La. 80, 66 South. 546.

Judgment affirmed.  