Lacroix v. Senecal

99 A.2d 115 (1953)

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Nature of the Case

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Facts

The testatrix, Celestine L. Dupre, died on April 19, 1951, leaving as her heir at law and next of kin her niece, P. Her will was dated March 26, 1951, and a codicil was dated April 10, 1951. In article five of the will, the residue and remainder of her property was devised and bequeathed one-half to her nephew, Nelson and the other one-half to D. The codicil revoked article five and left all the rest, residue and remainder of property to her nephew Marcisse also known as Nelson to be his absolutely; the other one-half to D. D is not related to the testatrix. One of the three subscribing witnesses to the codicil was Adolphe Senecal, who at the time he witnessed the codicil was, and still is, the husband of D. State law requires that every devise or bequest given in any will or codicil to a subscribing witness, or to the husband or wife of such subscribing witness, shall be void unless such will or codicil shall be legally attested without the signature of such witness . . . ; but the competency of such witness shall not be affected by any such devise or bequest. Item five of the codicil was void because D's husband was a subscribing witness. The only difference between item five of the will and item five of the codicil is the substitution for the words 'my nephew, Nelson Lamoth of Taftville, Connecticut,' in the former, of the words 'my nephew Marcisse Lamoth of Taftville, Connecticut, also known as Nelson Lamoth,' in the latter. The testatrix confirmed the will except as altered by the codicil. P sued for a declaratory judgment for a decree that one-half of the residuary estate of the testatrix is intestate and that she, as heir, is entitled to that one-half interest. The trial court held that the residuary devise to D under the codicil was void. It then held that the gift thereof under the will is valid. P appealed.