
    JOHNSON vs. KIRKLAND.
    
    The process verbal of the probate of a will is void, if it does not state, "that the will was read in an audible and distinct voice to the witnesses and bystanders."
    Appeal from the court of probates of the parish of Catahoula.
    West'n Dis'ct
    October, 1826
   Matthews, J.

delivered the opinion of the court. In this case the plaintiff claims, as testamentary heir or universal legatee of his wife, an undivided portion of her father's estate; which claim is resisted by the curator of that succession: and the probate judge having decided in favor of the legatee, the present appeal was taken in behalf of the surviving heirs of the ancestor of the testatrix.

Two principal grounds of opposition are made to the appellee’s right to recover: 1st. That the will under which he claims was not made in pursuance of the formalities required by law. 2d. That its probate was illegally made.

We will first investigate the last of these objections: for the provisions of a testament cannot be carried into effect until its execution is regularly ordered by a court of probates.

The code of practice, under which the will relied on by the plaintiff in the present case was attempted to be proven, is specific as to the matters which must be contained in the process verbal of the probate of a will. One of these is, that it should recite the “reading of the will, in an audible and distinct voice, to the witnesses and other persons present.” Whether this be, or be not, a wise provision of law, is not for us to enquire: it is an expression of legislative will, which we, as judges, are bound to obey and cause to be enforced. The evidence of the probate of a will without such recitation in the process verbal, is not according to law, and is therefore void and of no effect against persons who have a right to oppose its execution, and who do make opposition, as is done in the present case In consequence of this defect in the probate of the will of Mrs. Johnson, the testamentary executor and legatee cannot legally cause its dispositions to be carried into effect.

Thomas for the plaintiff, Scott for the defendant.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be avoided, reversed and annulled: and it is further ordered, that there be judgment entered for the appellant, as in case of non-suit, with costs in both courts.  