
    (71 South. 215)
    No. 21636.
    Succession of LEFORT. SERIO et al. v. TRAINOR et al.
    (Feb. 7, 1916.
    On Petition for Rehearing, March 6, 1916.)
    
      (Syllabus by the Court.)
    
    On Motion to Dismiss.
    1.Stipulations i&wkey;14(l) — Construction — Motion por New Trial — Waiver.
    Where all parties to a suit enter into an agreement, which is entered upon the minutes of the court, to the effect that the judge may decide the case in chambers, during the vacation of the court, “and shall grant an order of appeal, both suspensive and devolutive, to either party, fixing tüe return day and bond for either appeal, to have the same effect as if done in open court,” and the judgment is rendered, the order of appeal granted, and the appeal lodged in this court, in accordance therewith, such appeal will not'be dismissed on the ground that it was' taken prematurely and before the expiration of the delay within which, ordinarily, a motion for new trial may be filed, the terms of the agreement authorizing the presumption that the right to file such motion was intended to be waived.
    [Ed. Note. — Por other cases, see Stipulations, Cent. Dig. §§ 24, 28; Dec. Dig. <&wkey;14(l).j
    2. Executors and Administrators <&wkey;20(10), 35(19) — Succession—Appointment or Removal — “Administrators of Succession.”
    Executors, whether testamentary or dative, are included within the meaning of the comprehensive language, “or other administrators of successions,” as used in article 1059 of the Code of Practice, and judgments appointing or removing them become provisionally executory when rendered, and are not subject to suspension by appeal.
    [Ed. Note. — Por other cases, see Executors and Administrators, Cent. Dig. §§ 102-104, 259; Dec. Dig. &wkey;>20(10), 35(19).]
    On the Merits.
    3. Wills &wkey;?295 — Probate Proceedings — Contest — Evidence.
    The article of the Civil Code (1655) applies to the probate of a testament which is not opposed. • But a different rule obtains when the probate of the testament is opposed ab initio on the ground that it is a fraud and a forgery. In such a case the denial of the genuineness of the testament removes the contest from the domain of article 1655 of the Code, and it presents an issue which must be determined under the rules which govern all contests involving the genuineness of a signature which is denied. Under such an issue' the doors of justice are opened wide for the introduction of any legal evidence in accordance with all the forms which prevail in all contested facts or cases. The textual provisions of Civ. Code, art. 2245, and Code Prac. art. 325, recognize the mode of testing signatures by a comparison of writing or by experts.
    [Ed. Note. — Por other cases, see Wills, Cent. Dig. §§ 685-689; Dec. Dig. &wkey;295.]
    4. Appeal and Error &wkey;>970(4) — Trial <&wkey; 6S(1) — Discretionary Ruling — Reopening of Case.
    After all parties to a suit have announced that the testimony, is closed, no party has a legal right to introduce'further evidence; but the privilege of doing so may be granted by the court in its discretion and in furtherance of justice. The judgment of the court refusing to admit further evidence will not be reversed by this court unless it is manifestly erroneous and productive of injustice.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3851; Dec. Dig. <§=>970(4); Trial,. Cent. Dig. §§ 158-160; Dec. Dig. <§=> 08(1).]
    5. Wills <&wkey;302(2) — Contest—Signature of Testator — Evidence—Probative Effect.
    The declaration of two credible witnesses who attest that they recognize a testament as being entirely written, dated, and signed in the testator’s handwriting, corroborated by the testimony of an expert in handwriting, and by the recitals of the will, and by other various extraneous facts, will prevail over the testimony of two witnesses, who swear that a part of the date was not written by the testator, unsupported by any other circumstances.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 701, 718; Dec. Dig. &wkey;302(2).]
    ■6. Wills <&wkey;179, 183 — Posterior Testament —Conflicting Provisions — Construction.
    When a posterior testament does not expressly revoke a prior one, both must be executed, unless the last will tacitly revokes the first as a whole. When they conflict only in part, the provisions of the last will must prevail.
    [Ed. Note. — For other cases, see Wills, Cent. Dig. §§ 456, 457, 461; Dec. Dig. &wkey;179, 183.]
    7. Executors and Administrators <§=>14— Succession — Appointment.
    When a testator appoints as executor “the priest of his church,” without naming him, the court will interpret his testament to mean the person who will be the priest at the time of the testator’s death.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 29-31, 42; Dee. Dig. &wkey;>14.]
    Provosty and Land, JJ., dissenting.
    Appeal from Twenty-Third Judicial District Court, Parish of St. Mary; Thomas M. Milling, Judge.
    In the matter of the application of Sam Serio and others, to prohate the will offered by them as the last will and testament of Miss F. C. Lefort, deceased, with opposition thereto of Mrs. Carrie Sawyer Kramer and others. From the judgment, Sam Serio .and others appeal.
    Affirmed in part, and reversed in part.
    L. O. Pecot, of Franklin, for appellant Trainor. Charles I. Denechaud, of New Orleans, Paul Kramer, of Franklin, and Foster, Milling, Saal & Milling, of New Orleans, for appellants Blenk and Serio. Charles I. Denechaud, of New Orleans, and Paul Kramer, of Franklin, for appellee Rousseau. McCloskey & Benedict, of New Orleans, and Borah, Himel & Bloch, of Franklin, for appellee O’Niell. Caffery, Quintero & Brumby, of Franklin, for appellees Kramer and Sawyer. H. D. Smith, of Franklin, curator ad hoc, for’infant appellee.
   On Motion to Dismiss Appeal.

MONROE, C. J.

In December, 1914, Rev. James H. Trainor, a Catholic priest, formerly in charge of the church at Franklin, presented to the district court an instrument, purporting to be the last olographic will, executed in 1910, of Caroline Lefort, who had departed this life on November 29, 1914, which will contained, among others, the following disposition, to wit:

“I bequeath to the priest of this church the sum of two thousand dollars and appoint him executor of this will, without bond.”

The instrument was admitted to probate as the last will of Miss Lefort, the petitioner was confirmed as testamentary executor, and the taking of an inventory was ordered. In the discharge of that function, the notary discovered, among the papers in the residence of the decedent, another instrument, purporting to be an olographic will, executed in 1913, which contains, among others, the following provision, to wit:

“I appoint the pastor of this church administrator, without bond.”

At the date of the death of the decedent, Rev. J. H. Trainor had ceased to be the pastor of the Catholic church at Franklin, and had been succeeded by Rev. J. J. Rousseau, and that gentleman, together with Sam Serio, Rt. Rev. Jas. H. Blenk, the Church of the Assumption, and Mrs. Caroline Levy, persons who are named in the instrument so described, presented that instrument to the court as the last will of the decedent, and prayed that it be so recognized; that Rev. J. J. Rousseau be confirmed as executor, and that the other petitioners be recognized as legatees. They further prayed, in- the alternative, that, should the court hold the instrument first presented to be the last will of the decedent, it should set aside its order confirming Rev. J. H. Trainor, as executor, and substitute, in his place, Rev. J. J. Rousseau, as the then pastor of the church to which both of the instruments are conceded to refer. A litigation then ensued between the legatees named in the two instruments, respectively, and the former and present pastor, and the case was submitted for adjudication in June, 1915, after which, on July 16, the following entry was made upon the minutes of the court, to wit:

‘Tn the suit of Pam Serio et al., it was agreed by and between counsel for plaintiffs and defendants that this case shall be decided in chambers, during vacation, if the court sees fit so to do, and shall grant an order of appeal, both suspensive and devolutive, to either party, fixing the return day and bond for either appeal. All to have the same effect as if done in open court.”

On July 27th (during the vacation) the court handed down its opinion and decree, rejecting the demand for the recognition of the document last presented as the will of the decedent, but setting aside the order confirming Rev. J. H. Trainor as executor of the instrument first presented, and recognizing and confirming the Rev. J. J. Rousseau in that position; and, there was an order, made at the same time, granting “to any plaintiff or defendant” an appeal, both suspensive and devolutive, returnable to this court on or before September 20th on the furnishing of a bond in the sum of $250. The parties cast— that is to say, Rev. J. H. Trainor, Sam Serio, Rt. Rev. J. H. Blenk, and the Ohurch of the Assumption — availed themselves of the order so made, and lodged their appeal in this court on September 15th, and, thereafter, on September 18th, Rev. J. J. Rousseau filed the motion, which we are now to consider, to dismiss the appeals, on the ground that they were taken prematurely and before the expiration of the delay for the filing of motions for new trial, and as to the appeal of Rev. J. H. Trainor, in so far as it operates suspensively on the further ground that he was not entitled to a suspensive appeal. That gentleman has filed an answer to the motion, to which he attaches a copy of the minutes of the district court, of September 21st, showing that, upon that day, the court overruled a motion for new trial which had been filed, on July 29th, in behalf of Sam Serio, Rt. Rev. James H. Blenk, Archbishop of New Orleans, the Church of the Assumption, Rev. J. J. Rousseau, and Mrs. Caroline Levy, the reasons assigned by the judge for the ruling so made being that he had rendered the judgment in vacation and granted the appeals in conformity to the agreement of all parties, entered upon the minutes of the court on July 16th, and that he did not consider that the matter of the motion for new trial was any longer within his jurisdiction.

The proceedings on the motion for new trial took place after the transcript of appeal had been lodged in this court, and are not before us for consideration, but the agreement as to the rendition of the judgment and the granting of the appeals is to be found in the transcript; and, as the action of the trial judge was in strict conformity'thereto, we are of opinion that the motion to dismiss the appeals, as premature, is without merit. It is, of course, possible that the mover herein, in becoming a party to the agreement, made a mental reservation, to the effect that the judge should grant the appeal only after the litigants should have exercised their right to apply for a new trial, but there is no intimation of such reservation in the entry upon the minutes, and the mover seems to stand alone in claiming that advantage, since the judge and all the other litigants. have interpreted the entry to mean what the language imports, viz., that, in agreeing that the judgment should be handed down and appeals granted, during vacation the parties in interest waived the right to move for a new trial, the reservation or exercise of which right would necessarily have carried the case over until the next term of the court.

The further ground relied on for the dismissal of the appeal of Bev. J. H. Trainor, in so far as it operates suspensively, is founded upon articles 580 and 1059 of the Code of Practice, which provides that certain judgments shall be executed provisionally although appeals may have been taken therefrom.

These articles declare that:

“Art. 580. * * * Such judgments relate: To the nomination of tutors and curators of minors, of persons absent or interdicted, and of vacant successions. 2. To the appointment of syndics of creditors, when the court orders that they shall administer provisionally.”
“Art. 1059. When an appeal is made from a judgment appointing or removing a tutor or curator of a minor, interdicted or absent person, or of a vacant succession of absent heirs, or other administrators of successions, such appeal shall not suspend the execution of the judgment, but it shall have effect provisionally, until the appeal be decided.”

It will be observed that the judgments referred to in article 580 are those which relate to the “nomination,” or “appointment” of the officers mentioned, and that judgments appointing syndics are included only when the court orders that the appointees shall administer provisionally. Article 1059, on the other hand, makes provision in regard to appeals from judgments—

“appointing or removing a tutor or curator of a minor, interdicted or absent persons, or a vacant succession of absent heirs, or other administrators of successions.”

And it can hardly be claimed that an executor, whether testamentary or dative, is not included within the meaning of the comprehensive language, “or other administrators of successions” as thus used.

It was so held, in effect, in State ex rel. Commagere v. Judge, 22 La. Ann. 116, where a dative executrix was denied a suspensive appeal from a judgment of removal, and in Succession of Townsend, 37 La. Ann. 409, where this court said:

“The judgment removing Sykes as executor became final the moment it was signed. It belongs to that class of judgments from which no suspensive appeal lies, and which are executory at once.”

It is therefore ordered that the motion to dismiss be overruled, save in so far as it relates to the appeal of Bev. J. H. Trainor, as to which it is sustained to the extent that said appeal is held not to suspend the execution of the judgment appealed from.

O’NIELL, J., takes no part.

PEB CUBIAM. Since the foregoing opinion and decree were prepared, Bev. James H. Trainor has departed this life, and his heirs have made themselves parties to the appeal. The opinion and decree, on the merits of the appeal, this day handed down, hold, however, that Bev. J. J. Bousseau is the legally nominated testamentary executor; and, as Bev. James H. Trainor was otherwise interested in the appeal, we find no reason for making any change in this opinion and decree.

On the Merits.

In this case, his honor, Mr. Justice O’NIELL, being recused, and their honors being evenly divided in opinion as to the proper determination to be made of the issues involved, Judge OHABLES F. CLAI-BOBNE, of the Court of Appeal for the parish of Orleans, having been called upon by previous order of this court to sit in the case, pronounced the judgment of the. court therein, in words and figures, as follows, to wit:

CLAIBOBNE, Judge ad hoc. On December 1, 1914, Bev. James H. Trainor, a resident of the parish of Orleans 'filed a petition in the district court of the riarish of St. Mary, In which he alleged that Miss Caroline Le-fort, a resident of said parish, died on November 29, 1914; that she left an olographic testament, dated Franklin, La., May 26, 1909, by which she constituted a number of legatees, and in which is the following clause, among others:

“I bequeath to the priest of this church the sum of two thousand dollars and I appoint him executor of this will without bond.”

Petitioner further alleged that he was the priest of the Catholic church at Franklin on May 26,1909, date of the will, which was the church of the deceased, and that he was the executor appointed, by said testament; that he accepted the trust and desired to be confirmed as executor. He prayed for the probate, registry, and execution of the testament, and to be confirmed as executor thereof.

After due proof of the testament, its execution was ordered by decree rendered December 1, 1914, and petitioner James H. Trainor, was confirmed testamentary executor, and letters as such issued to him, and an inventory was ordered taken.

As a part of the proceedings in taking the inventory, the notary made the following report:

“In addition to the above personally I found in one of the drawers of the armoir in the upstairs bedroom certain papers, three in number, contained in an envelope, marked:
‘Eev. Father to be opened
three days after
My last will 1913 — 1913’
—which I have marked with my paraph as follows: ‘Documents found in effects of Miss Caroline Lefort.’
“[Signed] C. J. .Boatner, Notary Public.”

On January 23, 1915, Sam Serio, the Most Beverend James H. Blenk, Archbishop of New Orleans, the Church of Assumption, Eev. J. J. Eousseau, and Widow Camille Levy filed a petition in which, after reciting all the facts related above, they alleged:

That the document found by the notary and mentioned in his inventory and dated “May 26, 1913,” and signed “F. C. Lefort,” is-entirely written, dated, and signed by the deceased, Frances Caroline Lefort, and is her last will and testament, and has the effect of revoking, and in fact does revoke, the will of May 16, 1909, heretofore probated.

That said testament of May 26, 1913, appoints “the pastor of this church administrator,” and that Eev. J. J. Eousseau is now, and was at the time of the death of Miss Lefort, the pastor of the church at Franklin, and that therefore the said Eousseau is the person appointed executor of said testament.

That petitioners are named as legatees by said testament of May 26, 1913, and they present the same for probate and execution.

They further aver, in the alternative, that should the court decide that the first will of May 26, 1909, is the last testament of the deceased, there is error in that portion of the decree, confirming Eev. J. H. Trainor, executor, for the reason that he was not the priest of the church at Franklin at the time of the death of the testatrix, but that one of the petitioners, namely, Eev. J. J. Eousseau, was the priest of said church at the time of the death of Miss Lefort, and that he should be decreed to be the person appointed by the testatrix as executor and confirmed as such.

They prayed that Eev. Jas. H. Trainor and the legatees under the first will of 1909 be cited in order that it might be decreed contradictorily with them: (1) That the document dated May 26, 1913, be decreed to be the testament of the deceased, Miss Lefort, and that it be probated and ordered executed; and (2) that Eev. J. J. Eousseau be confirmed as executor thereof in place of Eev. Trainor; and (3) that the decree, ordering the probate and execution of the will of 1909 and confirming Eev. James H. Trainor as executor thereof, be revoked and set aside; and (4) in the alternative, and in case said testament of 1909 be maintained, that the order confirming James H. Trainor executor be re-yoked, and that Rev. 3. 3. Rousseau be confirmed executor, and that letters as such issue to him.

The document mentioned above is dated in the following manner: “Franklin May 26 19 .” The “6” in the “26” is not made perfectly. After the “19” follow two figures which at first sight appear to be “08” It looks as if the figures “13” had been previously traced in smaller figures under the “08” but not very distinctly to the naked eye, or that the figures “08” had been overcharged, or surcharged, or superimposed over the figures “13.” It seems as if an attempt had been made to erase the figures “13” or “08,” for they are both soiled and blurred, especially the “0.” Then follow in distinct characters the figures “1913.”

The defendants, in their answer, interposed the plea of no cause or no right of action. But as this plea is inseparably connected with the merits, we shall treat the 'two together. Besides, the defendants proceeded to the trial of the case on the merits without asking for a separate judgment on the exception. It is now too late. Doullut v. Smith, 117 La. 491, 41 South. 913; Ashbey v. Ashbey, 41 La. Ann. 138, 5 South. 546; Turpery v. Edmondson, 32 La. Ann. 1146. But we are of the opinion that the petition does disclose a cause of action, and that the judge below acted correctly in overruling the objection to the introduction of evidence based on that exception.

The defendants answered, asserting the validity of all the proceedings probating the will of 1909 and confirming Rev. J. H. Train- or executor.

Further, they .denied that the document presented by plaintiffs is dated May 26, 1913, but they admitted that all that appears thereon is in the handwriting of the decedent, except the figures “1913,” which appear at the extreme right-hand top corner of said document which they allege, are not in her handwriting, and were not made by her; that even if the document is a valid testament, it would not have the effect of revoking the testament of 1909; they admit that Rev. 3. 3. Rousseau was pastor of the Catholic church of Franklin about the time of the death of the testatrix, and that Rev. 3. H. Trainor was not the pastor at that time.

They further aver that the document offered for probate by plaintiffs as the testament of deceased is absolutely null, void, and of no effect for the following reasons, viz.:

First. That said document is without date.

Second. That if it has any date, it is that of 1908.

Third. That if said document ever was a testament that it has been revoked.

Fourth. That it is interlined, erased, changed, and mutilated, and is uncertain, obscure, meaningless, and does not contain any bequest to any one except Mrs. Levy, and that it is impossible of effect as a testament.

They pray that plaintiffs’ demand be rejected; and, in the alternative, in case the document propounded by the plaintiffs be probated as a testament, that it be decreed to be dated in the year 1908, and in all events, that the defendants be recognized as legatees under the testament of 1909.

On motion of defendants the case was fixed for trial on the merits for February 23, 1915, then postponed to March 2d, when it was tried during two days.

The plaintiffs put upon the witness stand an expert in handwriting to prove that the figures “13” were in the handwriting of the testatrix, and that the figures “08” had been written over these figures by a strange hand, and that the figures “1913” were in the handwriting of the testatrix. The defendants objected to this testimony on the ground that a will cannot be proved by expert testimony. The objection was overruled and the testimony admitted.

The expert was also asked whether, in his judgment, the figures “08,” which he had stated to have been superimposed or written over the figures “13,” had been written by the same party that wrote the figures “13.” The objection was made that there was no allegation of erasure or addition, and that the question was a contradiction of the pleadings and took the defendants by. surprise. These objections were also overruled.

The case was fixed for argument for May 1, 1915. On April 29th the defendants filed a petition to reopen the case, on the ground that the court, over their objection, had permitted E. A. O’Sullivan, the expert, to testify that the document annexed to plaintiffs’ petition was dated May 26, 1913, and that the figures “08” were not in the handwriting of the testatrix, but had been placed there by some other person, although the plaintiffs had alleged that said instrument was entirely written, dated, and signed by the testatrix, and had not charged that the figures “08” were forged or added by the hand of another person; that they were taken by surprise by such ruling, and were not prepared to offer expert .testimony in contradiction; that they are now prepared to prove by the testimony of Prof. L, C. Spencer, of New Orleans, an expert in handwriting, that the figures “1913” in said testament are not in the same handwriting as the body of said instrument and were not written by the same person, and that the figures “08,” under the figures purporting to be “13,” are in the same handwriting as the body of the instrument; that the figures “13” were written over the figures “08” by the same person who wrote the figures “1913.” To this petition is annexed the affidavit of L. O. Spencer that he will- swear to all the allegations of the petition.

On May 10th the court refused to reopen the case, and ordered the affidavit of L. C. Spencer to be stricken from the record.

On May 13th, the defendants filed an application for a rehearing of their petition to reopen the case on the ground that they had discovered new evidence, consisting of the testimony of Benjamin Ory, another expert in handwriting, who Would swear that the figures “1913” were not in the same handwriting as the body of the instrument. This application was also supported by the affidavit of Benjamin Ory.

The court also refused this application. Defendants reserved bills of exception to both rulings.

The district judge refused to probate the will of 1913, on the 'ground that the date of the month was uncertain; that he could not determine what was the figure after May 2 ; that it might be an “0” or a “6,” or something else, and, therefore, declared that the document presented was not an olographic testament under the law of Louisiana. But the judge decided that although Rev. J. H. Trainor was the priest of Franklin at the time of the date of the will (1909), Rev. J. J. Rousseau was the priest at the time of the death of the testatrix, and that he, Rousseau, was the party intended as executor by the will, and he confirmed him and revoked the appointment of Rev. Trainor.

Sam Serio, the most Reverend James H. Blenk, the Church of Assumption, and Rev. James H. Trainor have appealed.

The appellees have answered the appeal, praying that the judgment be affirmed in so far as it decrees that the document of 1913, presented by the plaintiffs, is not a testament, and reversed in so far as it recognizes Rev. J. J. Rousseau as executor.

The issues therefore are:

First. Did the court err in permitting an expert in’ handwriting to testify in support of plaintiffs’ allegation that the figures “1913” were written by the testatrix, and that the figures “08” had been written over the figures “13” by a strange hand, and that the “13” was in the hand of the testatrix?

Second. Did the court err in refusing to reopen the case?

Third. Were the figures “1913” written by the testatrix?

Fourth. Did the testament of 1913 revoke the one of 1909?

Fifth. Whom did the testatrix intend to appoint as executor, the priest who was officiating at the date of her will, or the one who was acting on the date of her death?

I. Up to the year 1896, when Act No. 119 was passed amending article Civil Code 1655 (1648) the law read:

“The olographic testament * * * must be acknowledged and proved by the declaration of two credible persons, who must attest that they recognize the testament as being entirely written, dated and signed in the testator’s handwriting, as having often seen him 'write and sign during his lifetime.”

In the interpretation of that article, the Supreme Court has repeatedly decided that, in cases of controversy concerning the genuineness of a will, the testimony of experts in handwriting was admissible to prove that the writing on the document propounded as a will was or was not in the handwriting of the testator. In the case of the Succession of Gaines, 38 La. Ann. 123, 128, the Supreme Court said:

“We understand that rule [C. C. 1655] to apply to the probate of a will which is not opposed, as a part of the mortuary proceedings. * * * But a different rule applies when the probate of the will is opposed ab initio, on the ground that it is a fraud and a forgery. In such a case the denial of the genuineness of the will removes the contest from the domain of article 1655 of the Code, and it presents an issue which must be determined under the rules which govern all contests involving the genuineness of a signature which is denied, and in such a case the burden of proof is on the party who relies on the genuineness of the proffered signature. C. C. 2245. C. P. 325. Under such an issue the doors of justice are opened for the introduction of legal evidence, under all the forms which prevail in all contested facts or cases; and the textual provisions of the law recognize the mode of testing signatures by a comparison of the writing. [Plicque & Le Beau v. Labranche] 9 La. 559; [Sophie v. Duplessis] 2 La. Ann. 724; [Aubert v. Aubert] 6 La. Ann. 104; [Pena v. Cities of New Orleans & Baltimore] 13 La. Ann. 86 [71 Am. Dec. 506]; Succession of McDonogh] 18 La. Ann. 419.”

In the case just quoted of the Succession of Gaines, experts in handwriting were imported from New York to obtain their opinion. In reference to experts the court continues, on page 133 of 38 La. Ann.:

“In this connection, it is contended by counsel for Mrs. Evans that comparisons of handwrit ings with each other and expert testimony on the same subject find little favor under the laws of Louisiana, and are very often precarious and dangerous. * * * Counsel are mistaken in the proposition that such modes of verifying signatures have but little force in Louisiana. Both modes are recommended by the very text of our law. C. C. 2245. C. P. 325.”

C. C. 2245 (2241) reads:

“If the party disavow the signature, * * * it must be proved by witnesses or comparison as in other cases.”

O. P. 325:

“If the defendant deny his signature in his answer or contend that the same has been counterfeited, the plaintiff must prove the genuineness of such signature either by witnesses who have seen the defendant sign the act or who declare that they know it to be his signature, because they have frequently seen him write and sign his name. But the proof by witnesses shall not exclude the proof by experts or by a comparison of the writing, as established by the Civil Code.”

In Succession of Stewart, 51 La. Ann. 1553, 26 South. 460, the Supreme Court was controlled, in its opinion, by the testimony of experts.

It will thus be seen that there are also three methods of proving handwriting in cases of wills, viz.:

First, by witnesses who have seen the party write the document;

Second, by witnesses who know the writing for having often seen the party write and sign; and

Third, by comparison of handwriting and experts. Ticknor v. Calhoun, 29 La. Ann. 279; Succession of Leonard, 21 La. Ann. 524; Plicque & Le Beau v. Labranche, 9 La. 562; Succession of Morvant, 45 La. Ann. 212, 12 South. 349.

The ruling in Succession of Oaines, 38 La. Ann. 123, was merely an affirmance of previous opinions in Moses Fox v. Succession of McDonogh, 18 La. Ann. 419, 444, Succession of Roth, 31 La. Ann. 315, 320, and Succession of Clark, 11 La. Ann. 124, 127.

But Act 119 of 1896, p. 168, has eliminated from C. C. 1655 the phrase “as having often seen him write and sign during his lifetime,” and broadened the field from which the witnesses may gather their knowledge of the handwriting of the deceased.

The defendants have quoted in support of their objection a large number of French authors ; but they can have but little influence in the decision of this question from the fact that the Code Napoleon contains no article corresponding with the articles of our Civil Code 1655 and 2245 and C. P. 325.

We are equally of the opinion that the court below was right in overruling defendants’ objections, and permitting the plaintiffs to show that the figures “08” were not in the handwriting of the testatrix. It did not contradict their pleadings. They alleged that the document found by the notary was dated May 26, 1913, that it contained the olographic testament of the deceased, and was entirely written, dated, and signed in the handwriting of the deceased, meaning that part which composed the will. They did not allege that the “08” was in the handwriting of the deceased; it was the defendants who claimed that the will should be decreed to be dated in the year “1908.” To defeat that allegation, plaintiffs had a clear right to show that the figures “08” were not in the handwriting of the deceased, and had been added by the hand of another, and therefore formed no part of the will. C. C. 1589 (1582).

II. Nor do. we think that the court erred in refusing to reopen the case for the purpose of hearing the testimony of the two experts in handwriting mentioned by the defendants, and in ordering the affidavits of these two experts to be stricken from the record.

The case had evidently been closed, since defendants moved to have it reopened. In such cases the Code of Practice provides:

“Art. 484. After all incidental questions shall have been decided, and both parties have produced their respective evidence, the argument commences; no witness then can be heard, nor proof introduced except with the consent of all the parties.”

This article has been interpreted to mean that, after all parties have announced that the testimony is closed, neither party has a legal right to introduce further evidence, but that the privilege of doing so may be granted by the court in its discretion and in furtherance of justice. The judgment of the court refusing to admit further evidence will not be reversed by this court unless it is manifestly erroneous and productive of injustice. See Vicksburg Liquor & Tobacco Co. v. Jefferies, 45 La. Ann. 621, 632, 12 South. 743, State v. Chandler, 36 La. Ann. 177, and School Board of Union Parish v. Trimble, 33 La. Ann. 1073, 1079.

In Parker v. Ricks, 114 La. 942, 947, 38 South. 687, 688, presenting many points of resemblance with this case, this court said, in passing on a motion to reopen the case to offer further evidence:

“After a case has been submitted and months have elapsed, a party to the suit has no right to reopen it to introduce new evidence. There •remained nothing to do save to decide the case” (quoting many authorities).

We think this case comes under the rulings made in the above cases.

On January 23d, plaintiffs filed their petition for the probate of the 1913 will. On February 13th, the defendants filed their answer, in which they averred that the figures “1913” were not in the handwriting of the decedent and were not made by her, and that the will was dated 1908. These two allegations presented the pivotal point of the case. • On motion of the defendants the trial of the case was fixed for February 23d. It was postponed to March 2d, when it was tried during two days. The plaintiffs offered the expert on handwriting as a witness to prove the genuineness of the figures “1913.” Defendants objected, and over their objections, the expert was examined by plaintiffs and cross-examined by defendants. He swore that the figures “1913” were genuine, and that the figures “08” were not written by the testatrix. Defendants then offered two witnesses, who testified that the “1913” were not in the handwriting of the testatrix. On April 7th defendants moved to submit without argument. Notwithstanding plaintiffs’ objection, the argument was fixed for May 1st. . On April 29th, nearly two months after the trial, defendants filed the motion to reopen the case, and for permission to offer as witnesses two experts who would swear that the figures “1913” were not written by the testatrix, on the ground that they were taken by surprise by the ruling of the court admitting the testimony of the plaintiffs’ expert. Defendants knew that the turning point in the case was the genuineness vel non of the figures “08” and “1913,” for they had raised the point themselves. If their attorneys were taken by' surprise by the ruling of the court, although it was in line with the well-established jurisprudence of the state, the time to express it was on the trial of the case, on March 2d. There must be an end to litigation.

Of course the affidavits annexed to the motion to reopen were all ex parte and inadmissible. Besides, if a witness could not be heard, neither could affidavits nor any other evidence.

III. Were the figures “1913” written by the testatrix?

This is a question to be determined by a preponderance of the evidence, and by the will itself as it appears to us.

It is proven and admitted that the rest of the date, and the body of the will, and the signature, are all in the handwriting of the testatrix. Therefore it is easy to presume, and without much corroborating evidence, that the date also is in the handwriting of the testatrix.

Two witnesses for plaintiffs testify that the figures “1913” are in her handwriting, viz.: (1) Sam Serio, who was her tenant for 13 years, who saw her write his rent receipts and was acquainted with her1 handwriting; (2) Mrs. Caroline Levy, who was one of the witnesses to the probate of the will of 1909, who knew the deceased for 22 years, and who lived with her in her home on several occasions, and who had seen her write and sign her name and who knew her handwriting. Both witnesses are legatees under the will.

On the other hand, the defendants introduce two witnesses: (1) Charles A. O’Niell, judge of the district court for the parish of St. Mary since November, 1908, and judge of the Supreme Court of this State since April, 1914, a legatee under the wills of 1909 and 1913, and a defendant in this suit, testifies that the document is in the handwriting of deceased with the exception of this “1913” which, he has no doubt, was not written by her. He has known the deceased all his life, has been her lawyer since 1893, and even after his ascent to the bench was her advisor, and has often seen her write and knows her handwriting.

(2) Mrs. Carrie Kramer, also a legatee under the will of 1909 and a defendant in this suit, swears that the document ,is in the handwriting of the testatrix except the figures “1913,” which are not in her handwriting. She has lived with the deceased since 1908, and has seen her write often and is familiar with her handwriting.

The opinion of all these four witnesses would be entitled to more authority if they were testifying as to the “handwriting” of the deceased; but it loses weight when applied to mere figures.

The solution of the question whether the testatrix wrote the figures “1913” would present more difficulties were the testimony of these four witnesses the only evidence in the case. But the testimony of plaintiffs’ two witnesses is corroborated by the will, by surrounding circumstances, and by the expert, E. A. O’Sullivan. He testifies, without hesitation, that the figures “1913” were written by the testatrix. His testimony exhibits careful and skillful examinations and intelligent explanations that carry great conviction. His own testimony is corroborated by several other salient facts. The envelope in which the testament was found, and which is admitted to be in the handwriting of the deceased, has the following superscription: “My last will 1913 — 1913.”

The date of the will is “May 26 1913— 1913,” thus repeating the 1913. It is true that the figures “08” are written over the figures “13” in the first line; but the evidence is that these figures “08” were written by a strange hand, and we' believe it. The paper upon which the will is written was lined by Miss Marion in 1910 or afterwards. She recognized it. The figures “1913” are again found at the end of the will, again covered by the figures “Ó8,” and again in the second line after the figures 1913 in a sort of codicil. If the will of 1909 had been her last will, the testatrix would have added her codicil to that will and not to the will of 1913. Besides, the testatrix by her will of 1913 omits to mention her brother, to whom she had left the usufruct of all her property by the will of 1909, and who died in 1909. She says, concerning him: “In remembrance of Mr. Serio’s kindness to my brother in his illness,” etc. The evidence is that Mr. Serio became acquainted with the testatrix’s brother only in his last illness, which was in July, 1909. Again Judge O’Niell testifies that the testatrix never showed him the 1913 will, and never spoke to him about it, and that he heard of it • only after the death of the testatrix. We may explain that circumstance from the fact that “Mr.” O’Niell, who had been the attorney and advisor of the testatrix, became “Judge” O’Niell in 1908, and from that time the testatrix had fewer facilities for consulting him.

All these circumstances are a corroboration of the plaintiffs’ witnesses, and establish to our satisfaction that the figures 1913 were written by the testatrix.

We cannot adopt the views of the district judge in holding that the- figure on the right of the figure 2 in the date “May 26” is uncertain, and may be an “0” or a “6” or something else. There was no attack upon the will upon that ground. The only part of the date attacked in explicit terms was the year “1913.” Nevertheless the unanimous testimony is that the will was dated May “26,” and it appears so to us very evidently. Mrs, Carrie I-Cramer, a contestant of the will, testifies that the date “May 26” is written by the testatrix. Mrs. Caroline Levy, tendering the will, says that “May 26” is in the handwriting of the testatrix. E. A. O’Sullivan, the expert, gives it as his opinion that the figure is a “6.” The effect produced upon us is that the pen caught in the paper as the testatrix was closing the end of the figure “6.” The testatrix was over 80 years of age, her sight was weak, her orthography reveals a lack of school education; her chirography is not of the best, and evidences the hesitation, trembling, and nervous effects of age. While the “6” is not perfect, there is no suggestion, and certainly no testimony, that it is not a “6,” or that it is, or that it resembles, any other numeral. As this court said in Succession of Stewart, 51 La. Ann. 1559, 26 South. 460, 462:

“No one has assumed to say, as a witness, that it was not 1896, although the figure ‘6’ is not clearly written.”

In that case the court said the question of “surcharge” or “writing over” was a question of fact.

IV. Does the testament of 1913 revoke in its entirety the one of 1909?

Article 1691 (1684) provides:

' “The revocation of testaments by the act of the testator is express or tacit, general or particular. It is express when the testator has formally declared in writing that he revokes his testament, or that he revokes such a legacy or a particular disposition. It is tacit when it results from some other disposition of the testator, or from some act which supposes a change of will. It is general when all the dispositions of a testament are revoked. It is particular when it falls on some of the dispositions only, without touching the rest.”

It does not follow that because a testator has made two wills, the first is revoked.

C. 0. 1693 (1686):

“Posterior testaments, which do not, in an express manner, revoke the prior ones, annul in the latter only such of the dispositions there contained as are incompatible with the new ones, or contrary to them, or entirely different.”

C. C. 1723 (1716):

“When a person has ordered two things, which are contradictory, that which is last written is presumed to be the will of the testator, in which he has persevered, and a derogation to what has before been written to .the contrary.”

There is no clause in the will of 1913 revoking, in an express manner, the will of 1909 or any of its provisions, or any previous will or legacy; if there is any revocation, it must therefore be tacit or resulting from some disposition in the will of 1913 incompatible with the will of 1909 supposing a change of will.

We find no general dispositions in the will of 1913 incompatible with the will of 1909; both make a series of particular legacies with the exception of the will of 1909, which donates “the remaining cash and property at the disposal of the Archbishop for charitable purposes.” Some of these particular legacies are not very clear to one not familiar with the properties of the deceased. Of course, if any legacy contained in the will of 1909 is contrary to, or incompatible, or irreconcilable with, those contained in the will of 1913, the legdcies contained in the will of 1909 are to that extent revoked.

“When posterior testaments do not expressly revoke prior ones, they must 'all be executed, unless the last tacitly revoke the first.” Succession of Mercer, 28 La. Ann. 564.
“It is true that when the testator leaves two wills, the clauses of the first which are contrary to or incompatible with those of the last are considered as having been revoked; and, for the purpose of ascertaining any such changes of intention, the two are to be considered as distinct, and as having been executed at different dates. But when the intentions of the testator have been ascertained by setting aside these clauses, which, under the application of this rule are to be annulled, the remaining dispositions are to be considered as forming parts of one will, which it becomes the duty of the executors to execute as such.” Succession of Fisk, 3 La. Ann. 705, 706.
“Where a posterior testament contains no disposition from which a change of intention in the testator, with regard to a legacy in a prior will, can be presumed, the legacy will not be revoked.” City v. Fisk, 2 La. Ann. 78; Lyon v. Fisk, 1 La. Ann. 444, 455.
“Two wills made at different times may stand together in all the parts in which they are not inconsistent. But where they conflict the provisions in the last one will prevail.” Tournoir v. Tournoir, 12 La. 19.
“Where a prior will gave certain specific (particular) legacies, and the subsequent one made the testamentary executor universal legatee, without any mention, of particular legacies and without any revocatory clause, held, that the subsequent will did not revoke the particular legacies in the first, by omitting them and instituting a universal legatee; but that the executor is bound to pay them.” Sarce v. Dunoyer, 11 La. 220.

See, also, Succession of Bobb, 42 La. Ann. 40, 7 South. 60; O. N. 1036-2 Dalloz, Codes Annotés Nos. 41, 42, p. 751, Code Nap. 1036, p. 754, No. 114 et seq., and numerous French commentators quoted.

Y. In both wills the testatrix appoints the pastor or priest of the Church of Franklin executor, without naming him. We believe she intended to appoint the person who would fill the position of priest at the time his services as executor would be required. If she intended to appoint the priest who officiated at the time she made her two wills she would have said who are “now” the priest at Franklin, or she would have named them, as she was well acquainted with them both. “A donation mortis causa,” says O. O. 1469 (1455), “is an act to take effect, when the donor shall no longer exist.” When, therefore, the testator named an executor, she looked to the future. When her testament took effect J. J. Rousseau was the priest at Franklin.

The article of the Civil Code, 1721 (1714), provides that a disposition couched in the future tense refers to the time of the death of the testator. Certainly the appointment of an executor looks to the future, to the very time of the death of the testator. A will speaks as of the death of the testator. Succession of Marks, 35 La. Ann. 1054; Thomas v. Blair, 111 La. 678, 684, 35 South. 811; 40 Cyc. 1424. It is just as if the testatrix had said that she appointed for executor of her will the person who would be the priest at Franklin at the time of her death.,, The trust was conferred upon the officer, and not upon the individual. McDonald v. Shaw, 81 Ark. 235, 98 S. W. 952; Appeal of Seibert (Pa.) 6 Atl. 105.

In Succession of Allen, 48 La. Ann. 1046, 1047, 20 South. 193, 197 [55 Am. St. Rep. 295], this court said:

“The will speaks from the death of the testator, that being the point of time at which it becomes operative (21 Conn. 550, 516), unless the language used, such as the word ‘now,’ or a verb in the present tense which requires it to be taken at the time it is used. 1 Jarman, Wills, 318. But it will receive the former interpretation if it can reasonably be made to bear it. Cox, Ch. 384.”

In the Succession of Burnside, 35 La. Ann. 708, 717, a legacy of all the testator’s property, though couched in the present tense, was interpreted to mean all the property the testator owned at the date of his will, and would own in the future at the time of his death.

In Succession of Marks, 35 La. Ann. 1054, this court said:

“A will speaks as of the death of the testator, and conveys all the property owned by him at that time, unless a contrary intention manifestly appears.”

Affirmed in Succession of Blakemore, 43 La. Ann. 846, 850, 9 South. 496.

An executor has been compared to the mandatory or agent of the deceased at death. The will reads:

“I bequeath to the priest of this church the sum of two thousand dollars and I appoint him executor of this will without bond.”
“For the care of our lot in the cemetery and for having masses said for the family and the most neglected souls in purgatory one thousand dollars.”

This money legacy was doubtless intended by the testatrix as a remuneration for the services to be rendered by the executor, for taking care of the tomb, and for saying masses for the family. If that supposition is correct, why should the testatrix appoint as executor, or leave a legacy to, a priest in of-1 fice at the date of her will, who might not be so at her death, or who might not be the executor of her will, and thus never be her mandatory, or agent after death? Her legacies were for pious purposes, and only the priest of the parish at the time of her death could be her mandatory to carry out her wishes. The testatrix appointed as her executor “the priest of the parish.” 1-Iow could Father Trainor pretend to be the man intended by the testatrix, since he was not the priest of the parish at her death?

For these reasons, we are of the opinion that Rev. J. J. Rousseau is entitled to the appointment of testamentary executor.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be affirmed in so far as it revokes and sets aside the decree appointing Rev. J. H. Trainor as executor herein, and in so far as it confirms Rev. J. J. Rousseau as such executor and orders letters to issue to him as such on his complying with the requirements of the law.

It is further ordered that said judgment be reversed, avoided, and annulled in so far as it refuses to probate tbe will of tbe deceased dated May 26, 1918, and it is now ordered that the document presented by the plaintiffs herein, and dated May 26, 1913, be decreed to be the olographic last will and testament of the deceased, Frances Caroline Lefort, and to have been duly probated according to law, and that it be registered and executed according to law, without prejudice to the will of 1909, unless the dispositions contained in the will of 1909 are contrary to, irreconcilable and incompatible with, those contained in the will of 1913.

It is further ordered that the succession pay all costs.

LAND and PROVOSTX, JJ., dissent.

See dissenting opinion of PROVOSTS', J., 71 South. 223.

On Petition for Rehearing.

CLAIBORNE, Judge ad hoc. In their application for a rehearing the defendants charge, with much vehemence, that they had filed an exception of no cause of action, that they were entitled to a judgment upon it and that we failed to pass upon it. We were under .the impression that we had done so; for, while we expressed the opinion that after the defendants had caused the case to be fixed upon the merits, and after they had gone into the .trial of the case upon the merits it was too late for them to ask for a separate judgment upon the exception, we passed upon it, and expressly stated that we thought the petition did set forth a cause of action, and that the judge a quo was right in overruling the exception. If the defendants mean that we did not give sufficient reasons for our conclusion,' we thought we had done so in disposing of the case on the merits. But they are not wanting, and we shall add them to the reasons already given.

Defendants pitch their case upon the proposition set forth on page 31 of their brief for a rehearing in these words:

“Hence the only question presented by the exception of no cause of action is this: Must the olographic testament speak for itself and express its date with certainty and precision upon its face, or may an uncertainty or doubt as to the date, appearing on the face of the instrument, be removed by testimony as to when the document was or must have been written?”

We are all agreed upon .the proposition that an uncertain date is equivalent to no date, and that a document with no date, or with an uncertain date, cannot be a valid will. But the question at once arises, What is an uncertain date?

There is a physical difference between a document without a date and one with an uncertain date. There is a legal difference between supplying a missing date, or any part of it, by facts outside of the will/and establishing certainty concerning an ambiguity or uncertainty or doubt in an existing date. The former cannot be done, because it is of the essence of the validity of a will that'it be dated “by the hand of the testator” (C. O. 1588 [1581]), and it cannot be “dated” in any other way. But there is no law that prevents the courts from hearing ‘testimony and entertaining evidence to throw light upon an obscure date, and remove all doubt, uncertainty, or ambiguity concerning it. 'Reason dictates it, and justice demands it, in order that the right accorded by law to make a will shall be protected, and not defeated by technicalities. Any evidence, recognized by law and not expressly prohibited by statute, calculated to convince the court and establish the 'certainty of the date, should be admitted and heard. The whole question resolves itself into a matter of proof. If the uncertain date can be made certain by'other parts of the will or by any other means, it ceases to be uncertain and becomes certain and valid. “Id certum est quod certum reddi potest.” If the evidence fails in its object, and the date remains uncertain, then the document wants the requisites of the law, and it is not a will. An uncertain date is therefore a date which cannot be made certain. The Code provides (C. C. 1714 [1707] to 1716 [1709]) that in case of an ambiguity or obscurity in the description of a legatee, or in the intention of the testator, or in the object bequeathed, testimony shall be heard to remove the ambiguity and establish certainty in the name of the legatee, the thing bequeathed, or the intention, in order that the will of the deceased shall be executed. Why should not an uncertainty in the date of a will be corrected by 'the same reason and by the same evidence V We believe that such a course is authorized by the opinions in the Successions of McDonogh, 18 La. Ann. 419, and Gaines, 38 La. Ann. 123, and other authorities quoted in our original opinion. Those decisions submit all wills attacked for nullity to all such proof as prevail in all contested facts or cases. It is an elementary rule of evidence that a writing in which there is no ambiguity cannot be interpreted by parol; but that an ambiguity in any of its parts, as to names, identity of parties, meaning of words, quantity, extent, or nature of thing sold or leased, consideration, value, may be removed by any evidence known to the law. 1 H. D. vo. Evidence, XV (3).

We have examined many French commentators on article 970 of the Code Napoleon, and we do not understand that .they conflict with our views on the question of elucidation of uncertainties in the date of wills. Of course the date, as well as the dispositions, of the will must appear from the will. “Ex ipsomet testamento non aliunde, non extrinsecus.” But they agree that an erroneous or an uncertain date, like ambiguities in dispositions, may be corrected or made certain by other parts of the will, or by recitations and circumstances appearing upon the face of the will, which may be corroborated by other facts and circumstances outside of the will.

According to them, a will may be dated on the anniversary of any religious, matrimonial, or family event, the date of which may be ascertained by extraneous evidence; such as the anniversary of the birth of Washington, Easter Sunday, anniversary of the marriage of the testator, or of the birth of his child. 7 Aubry & Rau, p. 103, No. 2; 10 Baudry-Lacantinerie, p. 51, Nos. 1933, 1934; 21 Demol. (4 Don. et Test.) No. 83, p. 77; 9 Duranton, p. 29, No. 30; 16 Dalloz, Rep. de Leg. p. 757, Nos. 2654, 5, 6; Fuzier-Ilerman on C. N. 970, p. 656, Nos. 116, 117; 1 Grenier, No. 228 bis. p. 486; 13 Laurent, Nos. 194, 199; 33 Merlin, Rep. p. 352; 5 Toullier, No. 365, p. 342; 3 Troplong, p. 46, No. 1482.

They go further and say that a correct date may be substituted for a wrong date written upon the will, when it is the result of an error shown by the language of the will which may' be corroborated by proof outside of the will.

We read in 10 Baudry, p. 61, § 1957:

“Whenever the material conditions of the testament or its declaration furnish elements sufficient to rectify or complete the date that is upon it, courts may fortify and corroborate them by facts or documents taken outside of the will. Authors and decisions agree to acknowledge this” — quoting 7 Aubry & Rau, p. 104, § 668; 21 Demol. (4 Don. et Test.) No. 86, pp. 79, 80, 90, 93, 98-; 13 Laurent, No. 199, and the authors quoted in Fuzier-Ilerman on article 970, Nos. 233, 234, and 278, and decisions of the Court of Cassation. See, also, same Baudry, p. 77, § 1999.

To which we desire to add the following: 5 Toullier, No. 362, pp. 333, 335; 9 Duran-ton, 35, 36, 39; 33 Merlin, Rep. vo. Testament, § II, p. 1, art. 6, note 10, pp. 356, 365; 16 Dalloz, Rep. Leg. p. 760, No. 2664 and note 1, No. 2668 and note 3, No. 2690 and note Nos. 2692, 2693.

In 21 Demol'ombe, p. 90, § 98:

“Much more! nothing would prevent the judges from having recourse to the proof drawn outside of the will, in order to determine the true meaning of the statements which would go to rectify the date. This rectification, indeed, would not cease to result from the intrinsic statements of the will, since the extrinsic facts would have been appreciated only with the object of clearing up the statements themselves.”

And on page 32, § 37, of the same author:

“Our conclusion is very exact, in so far as it expresses this idea that it is the testament alone which can create the dispositions, and that it is always within the testament that the substance must be found. But our conclusion would become, on the contrary, altogether false, if any one pretended to deduce from it that it is not allowed to have recourse to any extrinsic proof in order to interpret the dispositions; and to draw out more clearly from the obscure terms of the testament the clauses in which the substance is confined.”

22 Demolombe, p. 217, § 253:

“Testimonial proof and presumptions are, on the contrary, according to us, admissible to_ establish by whom the erasure or cancellations have been made, because there is no question of establishing a legal mode of revocation; we are then in presence of a fact, and it is in the search of that fact and of the circumstances which may furnish the explanation of it, that the judges have to provide for,” etc. 10 Baudry-Dacantinerie, No. 2787, p. 386; 14 Laurent, § 242, p. 267; 2 Dalloz, Codes Ann. on article C. N. 1036, p. 758, Nos. 218, 223, 228.

2 Fuzier-Herman, p. 668, No. 278:

“In order to rectify a false date, the judges may, nevertheless, in 'the same manner as to establish that it is false, corroborate the proofs drawn from the testament by facts extrinsic from the act by considering their relations to the testament and as a means of appreciating their bearing. ' In other words, the indications, already conclusive by themselves, furnished by the testament can always be completed by other documents.” Authorities.

No. 279;'

“Thus, in case there is doubt concerning the true date of. an olographic will, the judges may, in order to determine the date, take into con.sideration documents taken outside of the testament itself; such, for example, as an act of superscription written upon the envelope of the will, although such an act is foreign to the legal form of olographic testaments.” Authorities.

In 16, Dalloz Rep. de Leg. p. 760, No. 2664, we read: •

“We shall see further on (Nos. 2682 et seq.) what courts can do to rectify a false date. If instead of a false date, the case is one of a doubtful date, for instance by reason of the bad handwriting of the testator, the judges should be guided first by an examination of the act by itself, by invoking in case of necessity, the experience of experts. They are not forbidden to add to this verification the assistance of the external circumstances which might assist them to fix the veritable date.”

Note 1 to this section contains the reasons for judgment in a case reported in 24 Journal du Palias (1831-1832) p. 1646, entitled Corras v. Frouin, the court said:

“Considering that this testament, registered at Blaze on January 20, 1811, the original of which was placed under the eyes of the court, has been entirely written, dated, and signed by the hand of the testatrix; that therefore, and on this first proposition, there can be no cause to declare it null for a pretended absence of date; considering that the only difficulty which is raised relative to the veritable date of said testament consists in that, according to Mr. and Miss Corras, it is dated March 5, 1811, while according to Mr. Frouin, it is dated May 5th of said year; considering, in relation to this difficulty, that by an inspection of the will in question there can be no doubt that it is dated May 5, 1811, and not of March 5th; that the letter T which terminates the word which indicates the month of May. although it is preceded immediately by an ill-formed letter which may as well be taken for an T as for an ‘R,’ does not prevent recognizing that the act is dated in the month of May, and not in the month of March, 1811; considering that what completely operates a conviction in this regard, is that the act of superscription which exists_ on the paper which has served as a cover .to said testament, which act is also entirely written, dated, and signed by the hand of the testator, contains, in very legible writing, the date of May 5, 1811, and that we cannot read in it that of March 5th; that in truth, the above-mentioned superscription is altogether outside of the rules prescribed by law concerning the form of olographic testaments, but that, the case being solely to arrive at a thorough knowledge of the date of such a testament, the existence of an act of superscription, such as the one which is produced in this case, cannot be other than of the greatest influence, at least in this sense that said act must necessarily serve to real and to fix with precision the veritable date of the testament to which it refers — from all of which it evidently follows that the olographic will of M. D. must have all its effect in favor of Pierre Frouin, her universal legatee, as being of May 5, 1811.”

Sec. 2668:

“It is also in pursuance of this principle that it is allowed to take a time more or less long to make a testament that it has been decided that an olographic testament is valid, although the date was not affixed by the testator at the same moment as the making of the will, and that; after a first date erased there is found a posterior date.”

Where a testament was dated, thus: “Made in Bordeaux this May 20, 1818, I say 1829,” the testament was held dated “1829,” because the will gave the testator’s age, and because:

“Hence it follows that the indication of the year ‘1818’ is rectified by the will itself, but that the testator has removed all doubts by these expressions: T say 1829,’ following the indication of the year 1818i” Same Dalloz, p. 768, No. 2690, note 2.

A familiar example given by all French authors by which a date may be ascertained are the dates of the stamped paper upon which the testament has been written, established by the water lines on the paper.

It does not follow that because a date has been overcharged or surcharged, or other figures superimposed upon it, it destroys the date, or makes it fatally uncertain.

The law in relation to overcharge and erasures is the same. 10 Baudry, § 1910, p.-. “Overcharges written by the testator are valid.” 7 Aubry, p. 105, § 668.

.16 Dalloz puts it thus, in same volume, p. 759, No. 2661:

“Would the date become uncertain by the mere fact that it would present surcharges? Surcharges, in the date, would annul a notarial testament; but it is not the case with olographic testaments, concerning which we must admit a distinction. If the date is surcharged in such a manner as to indicate two different days, two different years, so that we cannqt see what is the veritable date, the uncertainty will cai-ry with it the nullity of the will. If the surcharge permits one to read distinctly the date surcharged, the act must, according to us, remain valid.” Authorities.

See, also, 10 Baudry-Lacantinerie, p. 52, No. 1936, p. 362, No. 1960; 21 Demol. (4 Don. et Test.) Nos. 86, 131, 139; 5 Toull. No. 367, p. 342; 13 Laurent, § 190, p. 202; 9 Donation Nos. 28, 29, 37-3. Trop. No. 1474-1482; 33 Merlin, p. 356, No. IX; 1 Grenier on Donations, p. 501, No. 228 (Sept.) 228 bis. p. 486.

We think we have sufficiently shown that the nullity of the will of the deceased did not result from the possible uncertainty of the date of the will propounded, but that the date could be made certain in the manner we have indicated hereinabove. It follows that the exception of no cause of action filed by the defendants was not well founded in law, and was properly overruled.

In line with all these authorities we consulted and examined the will before us. , We noticed the lines drawn across the paper upon which it was written which a witness swore had been drawn by her subsequent to 1908; we gave due weight to the date “1913,” written by the testatrix upon the envelope containing her will; we read the enunciations contained in the will itself and the testimony corroborating them; we studied the figures composing the dates, and the testimony of the expert in relation thereto, and then formed our own conclusions in accordance with what we believed was the law and the evidence in the case.

We are satisfied that the figure in the right of the figure “2” is a “6” and not a “G,” because persons are presumed to usé numerals and not letters in completing a date, and that the figure is really a “6.”

Our observation has led us to conclude with the expert that the figures “08” were superimposed upon the figures “13.” If we assume, with the plaintiffs, that they were so overcharged by the hand of another, they must be considered as not written. If, as argued by the defendants, they were written by the testatrix, then they must be considered as erasures. As such, they have not been approved by the testatrix, and they must be considered as not made. G. O. 1589 (1582). This leaves the figures “13” under them in full force and effect.

But if we are mistaken in these conclusions, and if the surcharge still leaves the year of the date uncertain as to which was written first or last, or which was surcharged, then the figures “1913,” which we believe to' be in the handwriting of the deceased, immediately following, remove the uncertain■ty and fix "the date as of that year. A testament is a law unto the courts, and their ■duty is to interpret it in the sense in which It can have effect, rather than in that in which it can have none. C. C. 1713 (1706).

An examination of the brief on behalf of the heirs of Rev. James H. Trainor has not changed our opinion in respect to his claims. We do not think that this case comes under the operation of article 1573 (1566) C. C., quoted by .his learned counsel. By applying the provisions of article C. C. 1721 (1714) to .the will, we indicated that we did not think that article C. 0. 1722 (1715) governed the case as he argued.

For these reasons, the rehearing is refused.  