
    A. T. Lagrave v. John A. Merle, Executor.
    Where an olographic will was dated at the commencement, and after malting various dispositions was signed by the testator, and he subsequently added another clause and again signed it, the instrument appearing tobe congruous and continuous, it will be presumed, in the absence of proof to the contrary, that it was finished at one time, and is clothed with the forms required for its validity.
    APPEAL from the District Court of St. Bernard, Rousseau, J.
    
      A. N. Ogden, for the plaintiff,
    contended : The judgment of the lower court rendered, was against the plaintiff on two grounds: 1st. That the New York will was revoked by a codicil to the latter will, made in Louisiana. And 2d. That the New York will was null as an olographic will, because not entirely in the hand-writing of the testator. It is admitted, and seen on inspection, that the codicil is not dated. But, it is contended, that this is an additional clause, which must be presumed to have been written at the same time with the other part of the testament, and as making part of it. The authorities cited in support of this, are all derived from the French jurisprudence. Our laws on the subject are believed to be in some important particulars different from the French laws; and that their decisions are, consequently, inapplicable, even if the current of those decisions should favor the views of the defendants, which, however, is not believed to be the case.
    The article 1581 of the L. C. is almost identical with the art. 970 of the C. N. The Napoleon Code does not, it is believed, contain any provisions so positive and explicit as those of the art. 1563 of the Louisiana Code. L. C. art. 1563 : “No disposition mortis causa shall henceforth be made, otherwise than by last will or testatment; all other foi-m is abrogated. But, the name given to the act of last will is of no importance, and dispositions may be made by testament, under this title, or under that of institution of heir, or legacy, codicil, donation mortis causa, or under any other name indicating the last will; provided that the act be clothed with the forms required for the validity of a testament, and the clauses it contains, or the manner in which it is made, clearly establish that it is a disposition of last will.”
    According to the authority of Toullier, this additional clause would have been invalid. But how can a doubt exist under our law, when we see a distinct and important disposition added, after the completion of tire will, and without which the two wills might well have stood together, and when the law expressly declares, that whatever name is given it, it must, in order’ to have effect, “ be clothed with the forms required for the validity of a testament.” On the second point, the decision of the court is sustained only by the opinions of the French courts, and those opinions were not expressed in cases similar to this. The only words in the New York will, not written by the testator, were the names of the witnesses, and these were not written in the body of the will. But, if they had been, they would have had no effect to invalidate it. L. C. art. 1582: “Erasures not approved by the testator, are considered not made, and words added by the hand of another as not written.” But this will was made in New York, and is clothed with all the formalities required by the laws of that State. The genuineness of all the signatures is admitted. Under this agreement, the laws of New York will be laid before the court. By the art. 1589, L. C., “ Testaments made in foreign countries, or in the States and other Territories of the Union, shall take effect in this, if they be clothed with all the formalities prescribed for the validity of wills in the place where they have been respectively made.” These signatures would not annul an olographic will in Louisiana. They do not deprive the will of a single requisite it contains for its validity in that form ; they are merely superfluous and useless. But in New York they are required by statute for the validity of the will.
    “ Since the first of July, 1830, when the revised statutes of New York went into operation, a will of personal as well as of real property, is of no validity unless it be subscribed by the testator, at the end of the will, in the presence of at least two attesting witnesses.” 4 Wend. 168. Watts and Leroy, appellants, and The Public Administrator, respondent. The will under which we claim is therefore valid, and not revoked. We contend that the two wills may-well stand together, and that our legacies must be first paid. But we also insist, that the bequest to Mrs. Merle failed entirely by her death before the testator. The words to her and her children, are no more than to her and her heirs. If so, the legacy lapsed. If it was to her, and to be kept by her, until her death, for her children, then it was null, as containing a prohibited substitution.
    
      P. Soulé and F. Grima, for defendants,
    contended : John A. Phillipon, who died in New York on the 25th of March, 1847, left two wills ; one dated New York, 22d of April, 1845 ; the other dated parish of St. Bernard, 26th of March, 1846. By the first, the testator, among other legacies, bequeathed to the plaintiff a sum of five thousand dollars, and to his minor daughter an undivided eighth part of all the property he had inherited from his father. This instrument purports to be an olographic will, although it is signed by the testator and two witnesses. By the second will, after disposing of his property, the testator declares null and void, all preceding wills by him made. The instrument is written, dated, and signed by the testator; no other but the testator has set his hand to it; but the clause revoking anterior wills comes after the date set to the will, and although the testator signs this clause, he neglects to set a second time, the date to it.
    And the question arises between the parties to the present suit, whether or not the will made in New York on the 22d of April, 1845, is revoked by the clause in the will made in the parish of St. Bernard on the 26th of March, 1846. The appellants hold the negative, and contend, that the clause in the last will, revoking all anterior wills, should have been dated as the will itself; and that, not being dated, it is invalid. They quote the authority of Toullier, who, commenting on article 970 of N. C. says, “ that if after dating and signing the will, the testator should add other dispositions, without dating them, these would be invalid.” Vol. 5, p. 343, No. 370. This opinion of’Toullier will hardly be reconciled with that expressed by the same author, in the preceding paragraph, where he maintains, “ that, ns the law has not prescribed in what part of the will the date should be placed, it may be written at the commencement or at the end of it, or in the very body of the fact itself.” Thereby showing, most conclusively, that clauses written after the date would not be invalidated on that account, for, clearly, should the date be placed in the body of the will, Toullier admits that such part as would come after the date, would, nevertheless, be sound and receive its full effect. The note of the same commentator, at page 345, vol. 5, and at the foot of § 371, leaves but little doubt that his mind had been considerably altered, as to the effects which the non-dating of a posterior clause would have on its validity, when the will itself was properly dated. Indeed, the case referred to, and the decree reported in the note, are the most unequivocal nullification of the opinion professed in § 370. The very question here in debate is boldly faced by Merlin, and determined in a way which leaves but very little room for discussion as to the opinion which is entertained of that question by the French jurists. Vide : Journal du Palais, 1830-’31, vol. 23, p. 1707. The authority of Duranton still increases the weight in favor of the validity of dispositions similar to the one here assailed. Duranton, vol. 9, p. 34, 35, edit. Paris. Zacharias, vol. 5, p. 82, 84, note 15. Yazeilles succ. vol. 2, p. 407, § 17. Coins. Delisle, on art. 970, p. 345, § 35.
    Thus have we shown, that in the eyes of the great mass of French jurists, commenting on an article of the N. C., from which the corresponding article in the Louisiana Code is extracted, almost verbatim : the revoking clause in the second will must take its effect, although it bears no date. The olographic will needs being dated but once, and from the moment that any additional clause to a will, dated and signed, cannot be considered as distinct from the will itself; but, on the contrary, must be presumed to be a constitutive part of the same ; duly signed by the testator, the law will view it as making one with the will itself, having the same dignity, and equally entitled to receive full effect. Should this be granted, the cause of the appellant is lost, whatever be the intrinsic merits or demerits of the will under which he himself claims. But, we will go further, and we confidently assert, that, even admitting, for argument sake,, that the revoking clause in the second will is invalid, as it is not contended that the main body of the will itself would, therefore, be disturbed, the appellants would still find themselves impotent to claim anything under the will made in New York. It purports to be an olographic will. To dispose of property situated in Louisiana, it should be made in accordance with the laws in force in the State, where the property described is situated. The article 1581 of the L. C. provides as follows: “ The olographic testament is that which is written by the testator himself.” In order to be valid, it must be entirely written, dated, and signed by the hand of the testator. It is subject to no other “ form, and may be made any where, even out of the State.” The corresponding art. in N. C. reads as follows : “ Le testament olographe ne sei-a point valable s’il n’est écrit en entier, daté et signé de la main du testateur.”
    Now, we contend, that the will made in New York is null, on account of other persons than the testator having set their hands to it, viz.: Fosdick and A. T. Harrison, who signed the same twice, as witnesses. Nor can it be pretended, that the setting of third hands to the will was by no act or assent of the testator, for the contrary appears from the terms of the will itself. That the insertion into such an instrument of a single word, which is not in the handwriting of the testator, annuls the will radically, is a point not only borne out by the letter of the articles above referred to, but fully supported by such ample authority that we deem it unnecessary otherwise to insist on it, than by pointing out the most striking passages of the commentators who have written on the same. “ Un seul mot ecrit d’une main étrangére dans le corps du testament,” says Toullier, “ quand méme ce mot serait superflu rendrait le testament nul. Vol. 5, p. 328, id par.” Un seul mot d'une main étrangére le vicie pour le tout.” Durant, vol. 9, p. 27. — vid. test, de Goulard, Merlin’s Rep. vol. 34, p. 126. Journal du Palais aun. 1833, vol. 25, p. 492.
    For the above reasons, the appellees expect, with unbounded confidence, that the judgment appealed from will be affirmed.
   The judgment of the court was pronounced by

Eustis, C. J.

John A. Phillippon died in the city of New York on the 26th of March, 1847. After his death, two wills bearing his signature, were discovered; one bearing date New York, the 22d of April, 1845, and another the parish of St. Bernard, in this State, the 26th of March, 1846. The domicil of the deceased was in Louisiana. The point upon which this case was determined in the court below was, as to the validity and effect of the last will in revoking the former one.

The Louisiana will is in the olographic form. It is written by the testator in his native language, which was the French. Its contents it is not material to state. It concludes to this effect: “Done at the plantation, parish of St. Bernard, this twenty-sixth day of March, in the year of our Lord, one thousand eight hundred and forty-six. John A. Phillifpon.”

Immediately following is written : “I desire to be exposed, eight days after my death: for, if I fall into a lethargic sleep, and should be interred, my waking up will be frightful and disagreeable. I charge Anais (referring to his sister, who was a legatee under the will,) to watch over the execution of this last request, John A. Phillippon.”

“ By the presents, I declare every other will made by me null, and of no value.

“John A. Phillifpon.”

“ Signed in presence of.” There is no signature of witnesses, nor writing upon the paper, except that of the testator.

The argument of counsel has been principally directed to the last clause revoking all former wills, which comes after the date given to the closing part of the principal testamentary disposition. This, though in the handwriting of and signed by the testator, has no date appended to it. The counsel for the plaintiffs, who are legatees under the New York will, contend that the two wills may stand together, and that they are entitled to their legacies. The defendants, who claim exclusively under the Louisiana will, insist on the revocation of the New York will, by the clause we have recited. To this effect was the judgment of the 'District Court, and the plaintiffs have appealed.

The case turns on the consequence attending the posterior clause not being dated. The code provides, that for the validity of an olographic will it must be entirely written, dated, and signed by the hand of the testator. It is subject to no other form, and may be made out of the State. Art. 1581. This article bears a close resemblance to the article 970 of the Napoleon Code, from which it was probably taken. The olographic was a form of testamentary disposition recognized in France before the adoption of the Napoleon Code. The jurisprudence on the subject appears to be settled. Merlin thus states and' solves the question as to the necessity of the date to the olographic will:

“Where an olographic testament contains several dispositions, of which the first one, at the same time dated and signed, and the second are only signed by the testator, are the latter null for want of date ? They are; provided that from the manner those clauses are conceived and placed, they cannot be considered to have been written immediately after the first, and on the same day that the first was written. But if, according to the contents or position of the second clauses, it appears that they could have been written on the same day with the first, we ought to presume that they were so in effect, consider them as forming but one and the same testament, and apply to the whole, which is composed of the different clauses, the general principle, that it is sufficient for the validity of the olographic will, that it be dated in the context, without its having a date at the end.” Merlin’s Rep. verbo Testament, sec. 11, par. 1,- art. 7. Duranton is to the same effect.

The law not having fixed the place' in which the date must be put in an olographic will, it may be placed not only at the head, but also at the foot of the instrument and in the body of it. A date, though affixed to the first clause and before the second, may be applied to one as well as to the other, and thus both may be considered as dated and signed. Droit Franjáis, lib. 3, tit. 2, § 34, et seq.

The opinion of Toullier, cite'd by the counsel for the plaintiff, which requires the date to clauses added by the testator to an olographic will, though stated in general terms, does not appear to have been acquiesced in by other commentators on the Code Napoleon, or to be supported by the jurisprudence of the court of cassation. Yide the case of The Heirs of Cricy. Journal du Palais, 1830 and 1831, vol. 23, p. 1707.

With this single exception, we believe the commentators on that code as well as the court of cassation, have adopted the opinion of Merlin. The diligence of counsel has enabled us fully to examine the subject. Zacharise, Droit Civil Franjáis, vol. 5, p. 83, note 13. Yazeille, Traité de Successions, &c., vol. 2, § 17, p. 407. Delisle Corns, on art. 970, C. N. § 36, p. 345. Rogion, Code Civil, art. 970.

The different clauses of the instrument under consideration appear to be congruous and continuous ; all of them to be parts of a last will; and the manuscript not being sent up for examination, we are bound to presume that there is no appearance of the writing having been interrupted, or of its not having boen finished at one time. Under the settled jurisprudence of the Napoleon Code, the instrument is clothed with the forms required for the validity of a testament. We think it furnishes us a safe guide in the case under consideration. No decisions of our own court have been adduced on either side.

Under this conclusion it is not necessary to consider the other questions raised in argument on behalf of the plaintiffs, who are legatees under the New York will. If that will is revoked, its validity under the laws of New York is not material; nor have thé plaintiffs any interest to contest the validity of the testamentary dispositions of the Louisiana will. That is a matter resting with the heirs at law and the parties in interest under that will.

The judgment of the district court is therefore affirmed, with costs.  