
    (92 South. 776)
    No. 24102.
    LATAPRIE v. BAUDOT et al.
    (June 5, 1922.
    Rehearing Denied by Division B July 1, 1922.)
    
      (Syllabus by Editorial Staff.)
    
    Wills <&wkey;l44 — Nuncupative will invalid where necessary witnesses did not understand language in which it was dictated by testatrix.
    A nuncupative will by public act was invalid where two of the three witnesses necessary to its validity under Civ. Code, art. 1578, did not understand the French language in which it was dictated to the notary by the testatrix, though translated by one of the witnesses into English and written and read by the notary in that language.
    Appeal from Twenty-Sixth District Court, Parish of St. Tammany; Prentiss B. Carter; Judge.
    Suit by Mrs. V. Benar Lataprie against E. H. Baudot and others. From a judgment sustaining the validity of a will, plaiptiff appeals.
    Judgment set aside, and judgment rendered annulling the judgment probating the will and recognizing certain persons as the decedent’s heirs.
    Fred J. Heintz, of Covington, for appellant.
    L. C. Moise and Lewis L. Morgan, both of Covington, for appellees.'
    By Division A, composed of Chief Justice PROVOSTY and- Justices OVERTON and LECHE.
   PROVOSTY, C. J.

Mrs. Benar Lataprie, the original plaintiff in this suit, having died, her heirs have been made parties plaintiff.

The suit is to annul the will of Mrs. Christine Baudot, a deceased sister of Mrs. Lataprie. One only of the several grounds of nullity need be noticed. It is that the will is in nuncupative form by public act, and that of the three witnesses to it only one understood the'language in which it was dictated.

The participants in the making of the will sat around a table. The testatrix spoke in French; one of the witnesses translated into English what she said; and the notary took down the translation. After the will had been completed the notary read it in English to the testatrix. The notary understood French, and the testatrix understood and spoke English, but very imperfectly.

In the case of Succession of Dauterive, 39 La. Ann. 1094, 3 South. 341, this court, speaking of the witnesses, said:

“Under the Roman, the French and the .Spanish law, knowledge of the language in which the will is dictated and written down, is deemed indispensable for the validity of the will, when, to be valid, it must have been executed in the presence of witnesses.”

The function of the witness being to make sure that the will is written by the notary as dictated by the testator, it stands to reason that the. witness must understand the language in which the testator dictates. In Hebert’s Heirs v. Hebert’s Legatees, 11 La. 364, and Breaux v. Gallusseaux, 14 La. Ann. 233, 74 Am. Dec. 430, and in the case of Succession of Dauterive, supra, and in other cases, wills were annulled because of one or more of the witnesses not having known the language in which the will was dictated, or else that in which it was written. That in the present case all three of the witnesses •were necessary to the validity of the will is not contested. C. C. 1578.

The judgment appealed from, which sustained the validity of the will, is set aside, and it is now ordered, adjudged, and decreed that the will of Mrs. Christine Baudot, of date October 22, 1915, and the judgment probating same, of date September 16, 1918, be annulled; and that the plaintiffs,' Helen Lataprie, wife of Gustave Eumont, Theodore Lataprie, and Juliette Lataprie, wife of Philip Patrono, be recognized as the legal heirs of the said Mrs. Christine Baudot, deceased, each for one-third of one-fourth of her succession, and as such and to that extent be sent into possession of said succession. The costs of this suit to be paid by the said succession.

Rehearing refused by Division B, composed of Justices O’NIELL, LAND, and BAKER.  