Some of the forced heirs of Mrs. Elonor Graves deceased, brought this suit to set aside her last will and testament as defective in form and illegal in substance.
The alleged illegality in the disposing part of her will consists in the bequest of six slaves, constituting nearly four fifths of the succession, to her son Daniel W. Graves, thereby depriving her numerous other children of their legitime. The plaintiffs claim that the legacy should be reduced to the disposable portion.
But, by the terms of the will, this is purely a remuneratory donation. The expressions of the testatrix are “for and in consideration of services rendered to me by my son Daniel in attending to my business and taking care of me for some years past,” “ for a debt I justly owe him,'the amount of which I consider equivalent to the property bequeathed to him.”
The Article 1S00 of the Civil Code declares that “remunerative donations can never be reduced below the estimated value of the services rendered.”
The evidence shows the service of the legatee to have been of the most meritorious description and not at all inferior in value to the bequest. Eor about sixteen years he remained with his widowed mother and his unmarried sisters, while his brothers were seeking their fortunes elsewhere. He gave up employments which would probably have been more profitable to himself than the legacy in question to minister to the comfort of this family, his mother declaring that she could not get along without him. At the death of her husband they appear .to have had but three or four negroes. The industry, economy and devotion of this son contributed to save and augment the little estate which the other children now seek to partake equally with him, in spite of the dying injunctions of their mother.
On this branch of the case we think there is no error in the verdict and judgment.
But the will is said to be informal and therefore void.
It purports to be a nuncupative will by public act, and as such, it is certainly defective. Such a will should show, on its face, the fulfillment of those essential *213formalities, of which the Code requires express mention. LeBlanc v. Bacas, 16 L. 82; Succession of Sparks, 12 Rob. 36. One of this class of formalities is that the will “be read to the testator in presence of the witnesses.” C. C. 1571-The only mention in this will of the reading is as follows : “ the same having-been read in an audible voice by John Hone, one of the subscribing witnesses, and by me notary, in the presence cf the testatrix.” There are no expressions which necessarily imply that it was read in presence of the witnesses, and in a will by public act that ingredient cannot be supplied by testimony.
But “ it suffices for the validity of a testament, that it be valid under any one of the forms prescribed by law, however defective it may be in the form under which the testator may have intended to make it.” O. 0. 1583.
So this instrument, although invalid as a nuncupative will by public act, may be good as a nuncupative will under private signature, Verdun v. Verdun 15 L. 28.
All the requisites of such a will are specified in the articles 1574 and 1575 of the Civil Code. But express mention of the fulfillment of those requisites is not demanded as in a will by authentic act. Proof aliunde may be received.— Falkner v. Friend, 1 Rob. 48, Sophie v. Duplessis’ 2 An. 726, Vernon v. Vernon's Heirs, 6 An. 246.
It is true that Art. 1575 says, a testament of this class “ must be read by the testator to the witnesses or by one of the witnesses to the rest, in presence of the testator; ” but the testament need not state that this was done; it is enough if it be proved by oral evidence to have been done.
Theproces verbal of the probate of the will in question, does not show that any such proof was administered before the Clerk ; but the form of the instrument may have misled him as to the necessity of such proof. In this suit it has' not been established, probably because the pleadings of the plaintiff did not notify the defendants of its importance; the allegations are vague and confined to “ defects and informalities patent upon the face of the will.”
We think, under the circumstances, that the defendants should not be precluded from showing hereafter that all the requirements of Articles 1574 and 1575 of the Civil Code have been complied with. In the succession of Sparlcs 12, Rob. 40, such a privilege was reserved.
It is, therefore, ordered that the judgment of the District Court be avoided and reversed; it is further ordered that the will of Eleanor Graves received by Lafayette Jones, a Notary Public of the Parish of Madison, on the 12th day of January, 1853, be declared informal, null and void as a nuncupative will by public act, reserving to the defendants the right of proving the said testament as a nuncupative will under private signature, and all their rights under the same when duly proven; it is further ordered that the defendants pay costs in both Courts.