
    
      HEIRS OF ANDREWS vs. EXECUTORS OF ANDREWS.
    
    Appeal from the court of probates of the parish and city of New-Orleans.
    The attestation of subscribing witnesses does not mar an olographic will.
    Workman, for the defendants.
    The validity of the testament of the late A. Andrews, is the sole point in dispute in this case. If it be not good as a nuncupative testament, as it is attested by no more than three witnesses, instead of the number which the law requires, it certainly has all the requisites to constitute a valid olographic testament. It is entirely written, signed and dated with the testator’s hand; and the law subjects this will to no other formality. It is true, that the Code defines the olographic testament to be “that which is made and written by the testator himself, without the presence of any witness. Civil Code. 230, art. 103.
    East’n District.
    Feb. 1823.
    The true coustruction of this sentence seems to me to be, that the presence of any witness is not indispensably necessary to the validity of such a will. The subsequent paragraph of this article, declares that the olographic will is subject to no other form but that of being entirely written, signed and dated, with the testator’s hand. And this would control and repeal the first paragraph of the article, if their provisions were considered to be contradictory. Besides, the will in question may have been made and written by the testator himself, without the presence of any witness, although some witnesses should have afterwards signed it. The contrary does not appear, and is not to be presumed gratuitously.
    The formalities prescribed for giving validity to testaments, are intended to secure their genuineness, and prevent forgery and perjury. The olographic form is allowed not for the sake of secrecy, (for the olographic will may be either open or sealed) but to facilitate to those who can write, the means of disposing of their property after their death. The presence of one or more witnesses, at the writing or signing of such a will, cannot defeat or counteract any of the objects of these laws.
    It would, on the contrary, be an additional security against forgery and falsehood.
    It is evident, then, that the signatures of Vance, Moore, and Legendre to the present will must be considered as only surplusage; a something more than the law required, but which should not invalidate a will, good in all other respects, any more than the signatures of ten or twenty witnesses would render void a testament to which only five or seven witnesses were requisite.
    This court have already recognized and enforced, the principles on which my reasoning is founded, in the case of Broutin and others vs. Vassant, 5 Martin, 169.
    They decided in that suit, that superscription is not an essential requisite of a sealed olographic will; under the law which provides, that when this will is sealed, it needs no other superscription than this, or words equivalent, "This is my olographic will." If a formality which the law specifies, and seems almost to require, may be thus dispensed with, a formality beyond what is required, ought not surely to invalidate a will, which is acknowleged to be in no way detective.
    The provisions of our Civil Code respecting the olographic will, are evidently taken from the Code Napoleon. But the French tribunals, rigorous as they always are in their construction of the laws prescribing the formalities of testaments, have never held that an olographic will, made with all the forms which the law requires, could be vitiated for containing something, or any thing more. On the contrary, they have decided that, Les mots surchargés, dans un testament olographe, n'en operent la nullité ni totale, ni partielle. Also, Un testament ecrit, daté, et signé par le testateur, vaut comme olographe, alors même qu'on a manifesté l'intention de le faire revetir de la forme mystique. Again, Un testament entierement ecrit, daté et signé de la main du testateur, pout valoir comme olographe, quoique, on ait observé d son egard, mais d’une maniere vicíense, quelques formalités, prescrites pour le testament mystique. This last case is ours, changing the mystique into the nuncupative testament. See Paillet, Manuel de droit Francais, 342; 10 Sirey, 289; 14 same work, 217. Journal du Palais, t. 44, p. 1.
    
      The reasons of the dispositions of the law, on which these decisions are founded, are very evident. The will itself must he wholly written by the testator; for, if written by the hand of another, it might not be done with fidelity and exactness. It must he signed by him also; because, a will written but not signed by him, could only he considered as a draught, or project of a will. This signature alone, gives confirmation and validity to the act. And lastly, the date is indispensable; for without it, if several olographic wills were presented, it might be impossible to determine which was the last, and consequently, the valid one.
    A. question has been raised respecting the manner of proving this will.
    The law requires in general, that when an instrument is executed in the presence of witnesses, it must be proved by one or more of them, if living. But this rule is dispensed with, as to nuncupative wills, by the 159th art. of the Civil Code, p. 244; which provides, that if none of the persons who were present at the said acts, are living near the place, but all are absent or deceased, it will be sufficient for the proof of said testaments, if two creditable persons make a declaration on oath, that they recognize the signatures of the different persons who have signed the will, or superscription. And the next article directs, that olographic testaments must be proved by two creditable persons, who must attest that they recognize the will as being written, dated and signed, in the testator’s hand writing. These provisions remove all difficulty as to the proof of the will now in question. It has been proved as well as made, in every respect as the law requires.
    Duncan, for the plaintiffs.
    The testament of Arthur Andrews cannot be brought within either of the three classes provided for by our laws, and such has been the strictness required, that even the want of any of the formalities prescribed, for the one or other of these classes, would be sufficient to render the will void; that these formalities are conditions, without which the instrument is not complete.— Knight vs. Smith, 3 Martin, 163.
    The instrument under consideration cannot be classed with the nuncupative or mystic testament, but may, as Mr. Workman argues, be regarded as a good olographic will, possessing, as he conceives, all the essential requisites of that class, being entirely written, dated, and signed with the testator’s hand. I think the counsel has confounded some of the formalities of that description of testament, with the essentials; or rather has overlooked an essential requisite, that it should be made and written “ without the presence of any witness” is an essential, without which, it can neither be defined, classed or proved as an olographic testament, independent, indeed, of the attestation, it may possess all the forms requisite for that description of will, but when witnesses are called to attest its execution, it, from that moment, ceases to be olographic.
    The argument that the presence of one or more witnesses, at the writing or signing, would furnish additional security against forgery and falsehood, is, at first view, strong and imposing; but, upon closer examination, I think it will be found more plausible than solid. To dispense with witnesses or the attestation generally required, you must find the case or exception to that rule ; when entirely written, signed and dated, without the presence of any witness, is, I apprehend, the case, and the only one known to our laws, in which a testament would be declared to be valid, without the aid and presence of the precise number and character of witnesses required by law; and let it be recollected, that we are not prermitted to determine, or called upon to say, whether it would be better or worse, gives more or less security, to have a few witnesses at hand; if any, the law has determined the number.
    I cannot agree with Mr. Workman, in rejecting or considering the subscribing witnesses as surplusage. In the case of Broutin & al. vs. Vassant, 5 Martin, 159, this court decided, that the superscription was neither of the form or essence prescribed for olographic testaments; and therefore considered it as surplusage. Although that class of testaments is subject to no other form, but that of being entirely written, signed, and dated with the testator’s hand; yet, some of those forms may certainly be regarded as essentials, which we are no more at liberty to dispense with than we should be warranted in making substance yield to form. To make it olographic must it not be entirely, wholly, all written by the testator? In Merlin's Repertoire, 13, 747, we have the answer, and it is so happily in point, that to transcribe entire, will, I am sure, be excusable. Il a été rendu, au parlement de Flandre, un arrét qui juge quelque chose de semblable. Le sieur Goulart, aprés avoir fait en Hainant un testament olographe, avait appelé deux témoins pour certifier sa signature; et dans la crainte qu'on n'altérât ses dispositions, il en avait signé et paraphé toutes les pages conjointement avec ses deux témoins, Aprés sa mort il s’éleva une contestation sur ce testament. Les Héritiers le soutenait nul, par le mélange de formes étrangéres á la nature des testamens olographes, et il fut déclaré tel, de toutes voix, par arrét du 28 Janvier, 1766, au rapport de M. de Sars de Curgies, á la premiere chambre, aprés partage dans la troisieme. But it is said, we can strike out that which in other countries is considered the most important part of the instrument, its attestation, and thereby meet the literal signification of the word olographic; but if that rude operation can be tolerated, how shall we get rid of another essential, and one, let it be recollected, which cannot be found in the French law, either as it stood before or after the publication of the Code, from which we have copied, that it should be written hors la presence d'aucun temoins. If without, or rather out of the presence, cannot be made to mean 
      in presence of witnesses: if that expression is clear and free from ambiguity, how can this honourable court underthe maxim adopted for their government, in the case of Knight vs. Smith, 3 Martin, 165, consider the attestation as surplusage? Why require that the testator should be alone, that he should write hors la presence d'aucun temoin? Perhaps, that in the performance of so solemn an act, he should not be embarrassed or interrupted by the presence of any person—that he should be uninfluenced in the disposition of his estate by the suggestions of an artful or officious friend; and, if any such motive could have influenced the legislature, must not the presence of acting, attesting witnesses take the instrument out of the spirit as well as the letter of the law, which authorizes the disposition of estates by olographic testaments? “But when the law is clear and free from all ambiguity, the letter is not to be disregarded under the pretext of pursuing the spirit.” Civil Code, 4.
    If probate can be taken of the will, its execution must be proved by the subscribing witnesses, if to be found within this state. To dispense with such proof, would be to lose sight of the first and best rule of evidence, "that the best evidence which the nature of the case will admit of, must be produced," and open a wide door to the very mischief which the opposite counsel admits the law intended, to provide against. Forgery in our day is in reality reduced to a science; the art of imitating hand-writing has of late been brought to such perfection, that within the observation of the opposite counsel, as well as my own, whole pages have been so closely imitated as to deceive the most intimate friends of the person upon whom the fraud was attempted : and is it in such times, that we are so to relax the rule of law as to take the fallacious proof by comparison of hand-writing, instead of resorting to those who can make the proof perfect? My mind answers no ; and if rightly answered, the character of the will is ascertained. The moment you are obliged to call upon the subscribing witnesses it will cease to be an olographic will, and not having a suificient number of witnesses, must be rejected as a nuncupative testament. Denizart mentions a case in which the operation of striking out was also proposed, the testament being partly olographic, and partly before a notary; but the testament was declared void. Merlin's Repertoire, 13,747.
    
      Workman, in reply.
    The literal signification of the word olographic, does not exclude, as the adverse party suppose, the idea of an attestation to an instrument. The olographic act is one written entirely in the the hand-writing of the maker of that act, whether it be witnessed or not. The decision quoted from Merlin, can have no authority in this case; because, it is founded on a law anterior to that of the Code Napoleon, from which ours is borrowed—on a law too (the ordonnance of 1735) which does not contain the important clause, et n'est assujetti à aucune autre forme. Besides, this antiquated judgment of a provincial tribunal is diametrically opposite to those of the high court of cassation, which have been already cited. It is difficult to conceive why the editors of our version of the French Civil Code have thrust in the variation of without the presence of any witnesses. But whatever may be its meaning or importance, it is evidently repealed, as I have before stated, by the succeeding paragraph of the article in which it is contained.
    
      If the attestation to this will be, as I think it is, of mere surplusage, then the will is admitted to be proved as the law directs: And even, according to the rule of jurisprudence insisted upon by the adverse counsel, our proof is still complete; for it has been made, as the court will see from the admission on record, by two of the attesting witnesses themselves.
    The objection cannot be maintained, that witnesses were not necessary or proper in such a will. Witnesses are not necessary to a promissory note, or a receipt. But it never was supposed, that such an instrument would be vitiated by being attested. It could only be requisite that the attesting witness should prove the instrument. And this is all that can be required of us, in the present case, admitting that the exception to the rule of evidence, in favour of nuncupative wills, Civil Code, 244, art. 159, does not extend to olographic wills, to which the signatures of witnesses might be unnecessarily affixed.
   Porter, J.

delivered the opinion of the court. This appeal has been taken from a decision of the court of probates, relative to the last will and testament of Arthur Andrews deceased. The judge, conceiving the instrument presented to him to be clothed with all necessary requisites to render it valid as an olographic will, admitted it to probate. The heirs appealed.

The paper produced as the testament of the deceased, is proved to have been written, signed, and dated by him. At the foot, however, three persons have affixed their names, “as witnesses present.”

The appellants contend, that the writing of the will in presence of three witnesses, together with their signatures, render it void as an olographic testament. The appellees insist, that the names of the witnesses are only surplusage.

“ The olographic will or codicil is that which is made and written by the testator himself without the presence of any witness.”

“An olographic testament or codicil shall not be valid, unless it be entirely written, signed, and dated with the testator’s hand. It is subject to no other form.” Civil Code, 230, art. 103.

The counsel for the heirs has relied much on the expressions “ written out of the presence of witnesses,” as a reason why this will, written in their presence, cannot be an olographic one. We think that the legislature, in making use of this expression, intended to mark the distinction between wills of this description and those to which witnesses are indispensable. There is no other construction will give effect to the last clause of this article, which states that this kind of instrument is subject to no other form than being written, signed and dated, in the hand-writing of the testator.

The most serious question which the cause presents is, whether the signatures of the witnesses do not render void an act which the law requires the testator to write entirely in his own hand.

We have been referred, by the counsel of both parties, to decisions rendered by tribunals in France on a law expressed in nearly the same words as our own. In those cited by appellees, the wills were mystic ones, and it clearly entered into the consideration on which they were decided, that the act of superscription on the envelope, and the testament itself, were two distinct and separate acts. That relied on by the appellants, was a case where the testator called to his assistance two witnesses; but where they not only-signed the will at the bottom, but affixed their names with that of the testator on each page. Making every allowance, however, for the difference in the facts, it is impossible to reconcile them. The former were held good, because an act, complete itself in one character, was not vitiated by an abundant caution in endeavouring to give it validity in another. It is not easy to see why the same reason did not govern the latter, which was held null, because there was a mixture of forms, foreign to an olographic testament. This decision, however, was by a provincial parliament; the others, by the court of cassation.

Leaving them however aside, and considering the point as if it was now presented for the first time, we are of opinion that this will is valid as an olographic one. The great principle which governs courts in cases of this kind is, to give effect, if possible, to the intention of the parties. Where the legislature has pointed out a particular form, in which that intention must be expressed, the operation of this principle is of course limited; but the instrument is not destroyed, it still remains; and if it is good in one form, though not in another, it must be enforced in that in which it may have effect : for, it is still the act of the party, and the particular regulation does not interfere with the general principle just spoken of. Hence, the maxim common to all systems of jurisprudence with which we are acquainted, ut res magis valeat quam pereat. Dig. 34, tit. 5, l. 13. Hence, the provision of our Code, that an act which is not valid as an authentic act, through defect of form, avails as a private writing, if it is signed by the parties. Code, 304, 218. And hence, the principle contained in the Roman law, which has a still more direct application to the case before us; that when a person intends to make a will under a particular law, and fails through defect of form, he does not, for that reason, deprive himself of the advantage of having it declared valid, if it is good under any other form by which he is privileged to make it. It is this law which furnishes the principal ground of the opinion given by Merlin in his questions de droit, vol. 5, 222. See also Domat, liv. 3, tit. 1, § 5, note to art. 19. Broutin vs. Vassant, 5 Martin, 169.

The will here is entirely written, signed and dated with the hand of the testator; there is no writing in the body of the testament by any other person. Toullier, Droit Civil Francais, liv. 3, tit. 2, 357. The witnesses sign at the bottom, and their signatures make no part of it.

We are therefore of opinion, that the judgment of the parish court be affirmed with costs.

***There were a few cases determined at this term, which are not printed, as petitions for a rehearing had been presented when this sheet was put to press.  