
    Succession of Constance Sparks.—Marcelite Miguez and others, Heirs, Appellants.
    It is essential to the validity of a nuncupative will by public act that it be expressly stated in the instrument that it was read to the testatrix in the presence of the necessary witnesses. C. C. 1571,1588. Thu£ where the will states ; “ Que la dite comparante testatrice a dicté ses dernier es-volontés, en presence de [mentioning three witnesses.] tons trois de Vage de majoriié et domicilies dans cette paroisse, écrit de suite par moi, le dit juge, sans interruption et sans divertir a d'au-tres actes. Alors fai lu le dit acte> d la dite testatrice ; qui & déclareé qu’elle le compr-enoit, et qu’elle Vapprouvoit dans tout son contenu. Dont acte fait, tyc*' —it will be declared invalid as a nuncupative will by public act, reserving the right to those interested, of establishing its validity as a nuncupative testament by private act. C. C., 1583. t
    
    Appeal from the Court of Probates of St. Mary, Palfrey, J.
    
   Simon, J.

This is an appeal from a judgment, ordering the last will or testament of Constance Etié, deceased, to be executed and recorded according to law. Said judgment was rendered contradictorily with the legal heirs of the testatrix, on their opposition to the granting of the prayer of D. C. Sparks’ petition, who, as universal legatee or instituted heir of his deceased wife, had made application to the Court of Probates for an order to carry the said will into execution according to the dispositions therein set forth.

Among the divers grounds upon which the appellant’s opposition is based, there is one which, in our opinion, must prevail. It is, that the will does not show on its face that it was read to the testatrix in presence of the witnesses, as no mention is made of the same in any part of the testament.

The instrument which was presented to the court, a qua, as being the last will of the deceased, was made in the form of a nuncu-pative testament by public act. The notary who received it, closed it in the following words: “ C’ést ainsi que la dite com-parante iestatrice a dicté ses derniéres volontés, étant dans son bon sens, en presence de Sy Ivor in Salles, Joshua Baker, et William Knight, tons trois de l’age de majorité et domicilies dans cette paroisse, écrit de suite par moi, le ditjuge, sans interruption et sans divertir a d’autres actes. Alors j’ai lu le dit acte a la dite testatrice, qui a declaré qu’elle le comprenoit, et qidelle Vapprouvoit dans tout son contenu. Dont acte fait et passé, &c. The will was signed by the testatrix’s making her ordinary mark, and by the three witnesses therein named.

It is one of the essential requisites of the law with regard to the form of a nuncupative testament by public act, that it should be read to the testator in presence of the witnesses, and that express mention should be made therein of the manner in which the formalities, upon which its validity depends, have been fulfilled. Civ. Code, art. 1571. Those formalities must be observed, and the non-compliance with any one of them, is sufficient to invalidate it. Civ. Code, art. 1588. Now, can it be even inferred from the declaration of the notary here, that the will of Mrs. Sparks was read to her in presence of the three witnesses who attended its execution 1 The notary declares, that it was dictated to him, in the presence of the witnesses ; that it was written by himself, without interruption, and without turning aside to other acts ; but he only states that he read the act to the testatrix, who declared that she understood it, and approved it in all its contents. This is clearly insufficient. He should have made express mention of the fact that the testament was read to the testatrix in presence of the witnesses ; as, although such fact may exist, and it might be in the power of the party to establish it by parol testimony, it is a well settled doctrine, that a testament must bear on its face the evidence of a strict compliance with the legal formalities, and that no parol proof can be admitted to show that such formalities, not apparent from the instrument itself, have been really fulfilled. Lablanc v. Barrors’ Heirs, 16 La. 80.

The fact that a nuncupative will, by public act, was read to the testatrix in the presence of the necessary witnesses, must appear from the instrument itself. The words in which the statement is made, are immaterial, provided they be such as to leave no doubt that the formality was complied with.

iSplane, for the universal legatee.

T. H. Lewis and Voorhies, for the appellants. Splane, for a re-hearing.

We conclude, therefore, that the testament under consideration, is not in a sufficient legal form, to have effect as a nuncupative will by public act, and that the Judge, a quo, erred in ordering it to be carried into execution as such.

It is, therefore, ordered and decreed, that the judgment of the Court of Probates be annulled, and reversed; that the appellants’ opposition be maintained ; and that the will of Constance Etié, deceased, be and the same is hereby declared null and void as one by public act, with costs in both courts.

Same Case. — On a Re-i-iearing.

The will should be maintained as a nuncupative testament by public act. The case of iSeghers v. Antheman. (1 Mart. N. S. 73,) is directly in point. That case was decided under the Code of 1808; but the law in relation to donations, mortis causa, was not altered, in this respect, by the Code of 1825. The language of the will shows that it was read to the testatrix in the presence of the witnesses. The notary, after stating that it was dictated in the presence of the witnesses, and written as dictated in their presence, adds, then (alors) I read the said acts to the said testatrix, who declared, &c. To what time does the word alors refer, if not to the period when the will was dictated. Can it be presumed that the witnesses had absented themselves ? Is the conclusion not irresistible that the witnesses were present when the will was read ? Where an expression is susceptible of two meanings, it should be understood in that sense which will give it effect. See 5 Toullier, No. 430, p. 408.

The testament states, that it was dictated in the presence of I he witnesses, written in their presence — then read to the testatrix — and then follows the clause reciting that it was done and passed in the presence of the witnesses. To conclude that the witnesses were not present, when the will was read to the testatrix, it must be inferred that they absented themselves between the time of writing the first part of the will, and the writing of the clause, “Done and passed, &c.for the rending is stated to have taken place between these periods. Which is the most reasonable conclusion — that the witnesses absented themselves during the reading of the will, or that they remained 1

In any event, the will is good as a testament by private act.

Simon, J.

We were induced to grant a re-hearing in this

case, from the doubt which we entertained, whether the word “alors” used by the notary in the closing of the will, and immediately following the words “écritde suite par moi, &c.,” and preceding the words “ jai lu le dit acte a la dite testatrice,” did not sufficiently indicate that the will had been read to the testatrix by the notary, in the presence of the witnesses. We thought, from the expression “ alors,” written between the sentence in which the notary declares that the will was dictated to him in the presence of the witnesses, and that part in which he says that he read it to the testatrix, that it might perhaps be fairly inferred, that the dictating, writing, and reading of the will, had been done altogether in the presence of the witnesses; but we have been unable, however reluctant we may feel to annul a will for the want of a formality, which, at the first blush, appears to be of a trifling and unimportant nature, to come to a conclusion different from that contained in our first opinion. The law is imperative, that the mention of the reading of the will to the testatrix, in the presence of the witnesses, must be express ; and although the rule has been relaxed so far as to be now settled, that if the proof of the reading of a will to the testator, in the presence of the witnesses, is furnished by the testament itself, it is immaterial in what words that proof is furnished, still some words must be used, from which the fact may be inferred, that the formality was complied with, and such inference should be so conclusive, and so certain, as to leave no doubt, in the mind of the court, that when the will was read to the testator, the witnesses were present. In this case, it is, in our opinion, impossible to draw such an inference.

The case of Seghers v. Antheman, (1 Mart. N. S. 73,) relied on by the defendant’s counsel, does not seem to support him. In that case, the following sentence occurred at the close of the will: “ C’est ainsi que ce testament a été fait en presence des sieurs, &c., tons trois témoins, & c., et lecture faite de ce que dessus, la testatrice en presence des témoins nous a declaré, <fcc.” In that case, the question was not, whether, when the will was read, the witnesses were present, but whether, when it was so read to the witnesses, the testatrix was present, or, in other words, whether it was read to her ? In this case, on the contrary, the question consists in ascertaining from the expressions used in the will, whether the witnesses were in attendance when the will under consideration was read to the testatrix by the notary. It is clear that this will was read to the testatrix, who declared that she understood it, and approved it in all its contents ; but, as we have already said, this statement does not include the idea that the witnesses were there when it was so read, although she may have made the subsequent declarations in their presence; and the expressions used in the said will, do not satisfy us, on this important requisite of the law.

It is contended, however, that the will is good as a private act, and that the case should be remanded to the lower court, in order to afford to the defendant, an opportunity of showing that a greater number of witnesses, than are mentioned in the. will, could not be had, the same having been made in the country. This, we think, cannot be done. There is no issue between the parties, on this point, and we cannot remand a case to be tried, de novo, on any other issue, than those presented by the record, and the pleadings therein contained. We are of opinion, however, that justice requires that the defendant’s legal right to show that the will in question is good as a private act, should be reserved, (Civ. Code, art. 1583,) and that the present judgment ought not to prejudice the validity of the will, if it can be established in any one of the other forms prescribed by law.

Our first judgment is, therefore, maintained, reserving to the defendant the right of showing, hereafter, that the testament here annulled as one made by public act, is valid, as a nuncupa-tive will by private act. 
      
       This case was decided on a re-hearing, at Opelousas, in September, 1842. The original opinion pronounced on the first hearing of the case, prepared fay Garland, J., was lost in the clerk’s office, of the Supreme Court of Opelousas ; and the publication of the case has been delayed in the hope of obtaining either the original or a copy ; hut it appears that the opinion was never recorded in the office of the clerk of the Supreme Court, nor was any copy of it ever sent to the court of the first instance. The record was placed by the reporter, in the hands of Judge Garland for the purpose of preparing such a sketch of the original opinion, as would be necessary to explain that pronounced on the re-hearing. The record remained in his hands more than two years; but the reporter was never able to obtain any such sketch. After Judge G. left the bench, Simon, J., by whom the opinion on the rehearing was delivered, prepared the paper which is here published.
     
      
      
        En presence des iémoins susdits qui ont signé ces presentes, anee la dite testa-trice, fyc.
      
     