
    
      BROUTIN & AL. vs. VASSANT.
    
    A will attended with all the formalities required by law for an ologra phic will, is good as such, although it may appear that a mystic will was intended.
    The superscription is not an essential re- quisite of a sealed ologra-phic will. phic will.
    
      Appeal fromthe court of the first district.
    
    
      Marie J.Broutin, wife of the defendant, made her last will and testament, entirely written, signed and dated with her own hand, enclosed it under a sealed cover, and in the presence of the number of witnesses required by law, pre- sented th packet to a notary, who drew up thereon an act of superscription, as in the case of a mystic will; but omitted to insert therein that the testatrix had declared, that the will was written by herself, or by another by her direc- tion, and that it was signed, or not signed by her. After her death, the will having been admitted in the court of probates, the plaintiffs, heirs at law of the deceased, brought the present suit, to have the will set aside.
    There wasjudgment in their favour, and the defendant appealed.
    Livingston forthe plaintiffs.
    The decisionof the district court is perfectly correct. It clear-y appears, that the testatrix intended to make a mystic will. Hers cannot be valid as such, on account of the omission in the act of superscription of her declaration, that the will was written by her, or by another by her direction, and that it was signed by her or not, as the case may be. This is expressly required by our statute, Civ. Code 230, art. 99. In the case of Pizerot vs. Meuillon's heirs, this court recognized the principle, that all the solemnities required, in the execution of testaments are matters of strict law, and ought to be observed, 3 Martin 114, and in Knight vs. Smith, held that a testament, being the solemn declaration of the testator's will, according to positive law, every formali- ty required by law for the enacting of it, may be considered as a condition, without which, the instrument is not complete-That it is on the compliance of these formalities alone, that the law is willing to recognize the testament as legal, and to suffer the established order of suc- cession to yield to the will of the testator. Id. 163.
    East'n District.
    July 1817.
    But, it was contended in the district court, that although the will is invalid in the form of a mystic will, which the testatrix intended to give it, yet it is good as an olographic will, it being entirely written, signed and dated, in the handwriting of the testatrix, which it is said. it is said. is every thing which the law requires for the perfection of an olographic will. Code Civ. 230, art. 103.
    
    
      This istrue, with regard to open olographic wills; but the code informs us, that the ologra- phic will is either open or sealed; and that when it is sealed, it needs no other superscrip- tion than this, or words equivalent, this is my olographic will. Id. loc. cit. This is certain- ly a negative pregnant with an affirmative. If it need no other superscription, it needs that. If it need that and has it not, it lacks one of the formalities required for its perfection, and it is therefore invalid.
    But we contend thatit is necessary, that the will be perfect, in the form which the testator began to dispose of his property. Although the will have all the formalities which the law requires for its perfection, in any of the other forms, which the law recognizes, if it wants any of those which are required in a will, of the form which the testator adopted, it is invalid. Such was the jurisprudence of the Parliaments of France, before the revolution; such is the opinion of the celebrated Ricard, part 1. n 1609.
    It is true somecases may be found, in which some of these tribunals supported a will, defi- cient in some of the formalities required for those East'n District. July 1817. of the particular kind, which it was the intention of the testator to follow ; but this was in consequence of a special clause contained in the wills so supported, that the intention of the testator was, that “ the will might be valid, in the best possible form, or without any other formality." But the will, which the testator intended to make, was one that bore some relation to the kind of will, in which the court declared it perfect, for could the court declare a will, evidently intended to he olographic, to be valid as a nuncupative one? Certainly not.
    How can it he contended, that a will intended to be olographic, will be good as a nuncu-pative one; while these two kinds of wills have opposite characters? In the one, the testator conceals the objects of his liberality from the eyes of the whole world, he does not even call a single witness; in the other he openly de- clares his last intentions to a public officer, at- tended by a number of witnesses.
    
    Moreau, for the defendant.
    If the will is not good as a mystic one, it is so at least as an olo- graphic onie, The testatrix clearly intended to make a will of the latter kind, although from surabundant caution, she caused it to be enclos- ed as a mystic one.
    
      The will is wholly written, signed and dated in her handwriting, and declared to have been done double-distinctive characteristics of an olo-graphic will. The mystic will may indeed be written and signed, in the handwriting of the testator; but the date is not an essential requisite of it. Code Civil 28, art. 99.
    The mystic will, ought to be delivered to the notary, and remain in his hands: it needs not then, to be made double. The olographic will requires no such a deposit; and it is prudent that it be double, to guard against the loss of one of the originals.
    Even if the testatrix had declared her inten- tion to make a mystic will, her will would have been good, if it was in the olographic or any other legal form.
    The question, whether a will irregular in the form, which the testator meant to give it, might be good if made in any other legal form, was often agitated in France, but always decided in the affirmative before the revolution. Since the promulgation of the Napoleon code, it has been agitated in the court of cassation, of which the celebrated Merlin was Attorney-General. It is known that this officer, always a jurist of the highest standing, gives his opinion to the court, after the arguments of counsel, and that such such opinions have the greatest weight. We may judge of this by the auiiority which the conclusions of the cel ebrated D'Aguessau, while Attorney General in the parliament of Paris, maintain to this day.
    Dominique Cassaubon, had made a will, which was found in a packet, sealed but without any superscription. It was wholly written, signed and dated in the testator's handwriting, in which was the following clause. "I charge my heirs, hereafer named, to pay annnaully the expenses of two funeral services, which it is my intention to establish this moment, for ever, as I establish them by this closed and secret will, wholly in my handwriting, without the necessity of any other formality."
    On the first,two questions arose, which are im- portant in the present case. Whether a will wholly written, dated and signed, in the testa- tor's handwriting, might be rejected as an olo- graphic will, because the testator had called it a closed and secret will, and had enclosed it in a sealed cover? Whether a mystic will, invalid as such, for want of the proper act of super- scription, might be valid as an olographic will, being written, signed and dated in the hand- writing of the testator?
    On the first,the case being less favorable than lesS favorable tban ours, as the testfttrix did not use the words closed and secret, Merlin was of opinion that, whatever might have been the intention of the testator, as to the form he meant to give to his will it was valid, if attended with all the requisites of the law, in wills of any other form, The law de testamento militari, in the digest, says Merlin, establishes it as a principle, not only in the wills of soldiers, but in those of all other persons, that it never can be presumed, that in chusing the particular form of his will, the testator intended so to confine himself there- to, that in case be omitted any formality there- in, his will should remain without execution. Nec credendus est quisquam genus testamenti eligere ad impugnanda judicia sua. Natural justice and the 1aw, require that validity should be given to a will, in which the testator has complied with every formality established by law, in some of the forms which it authorizes, although the testator, when he began his will, intended to give it some other form, but omit- ted some of the formalities it requires." 5 Questions de driot, 225.
    On the second question, Merlin, after citing the opinion of Ricard, quoted by the plaintiffs' counsel, shews its opposition to the law de te- tamento militari. He proves that Ricard has been led into an error by a false application of the law 19, Cod. de Codicillis; and concludes-"can it be presumed, that a testator, in chusing a particular form for his will, intended to make a parade of his learning and skill, and render the execution of his last intentions dependent on the exact fulfilment of every requisite formality? The choice of the form must be, to him, a matter of perfect indifference-and he cannot be supposed to have had any other thing in view, but the disposition of his property in a mode that may be effectual.” He next cites four decisions of the parliaments of Bordeaux, and of Toulouse, declaring valid as nuncupative, wills, which were null as mystic wills, and two other of the parliaments of Metz and Dijon, who declare valid as olographic, wills closed and sealed in the form of mystic ones : the first with the requisite act of subscription, but which had not been deposited: the last without any such an act, but styled a mystic will, in the body of it. Id. 227. The last judgment, that of the parliament of Dijon, was confirmed in the king’s council.
    We cannot doubt that these principles would have been recognized by the court of cassation, in the case of the will of Dominique Casaubon, had not Merlin, himself, declared his opinion that it could not be valid, as an olographic one, because wills of this kind were not admitted in Bayonne, where it was made.
    The plaintiffs' counsel has contended, that one of the grounds of these decisions is, that the mystic wills thus held valid, as olographic, contained the clause that the testator desired that they might be valid in the best possible form, or without any other formality. Casaubon’s will had this clause-yet it was declared invalid for the reasons we have given; but the clause does not appear to have been in the wills declared valid, by the decisions of the parliaments of Metz and Dijon, which I have cited.
    But, why should we resort to foreign juris- prudence, while our own statute book contains a provision, that testaments and codicils, which the testator may please to cover and seal, will still be valid, as nuncupative testaments and co- dicils, if they he clothed with the formalities prescribed for the validity of these kinds of acts respectively? Code Civ. 231. art. 104.
    In vainwill it be contended from the words shall be valid, as nuncupative testaments, that wills of the latter kind only are to be understood, and that the provision does not reach olographic wills. This objection is equally contrary to the letter and spirit of the law. The legislator had not in mind nuncupative wills alone here-he says, "testaments and codicils, which the testator may please to cover," &c.
    But, it is asked, how can it be contended, that an olographic will shall be valid as a nun-cupative, when these kinds of wills have by law, opposite characters? We answer that, in Spanish law books, the words nuncupative and open are indiscriminately used.
    The solemn will is of two kinds, written and nuncupative-the written commonly called clos- ed cerrado-the nuncupative, commonly called open. 1 Febrero Contractos, 1 § 4, n. 4.
    Taking then the words open and nuncupative as synonimous, it will follow, that any kind of will, which the testator may put under cover and seal, may be valid as an open one, if it be besides clothed with every other requisite for- mality: and olographic wills, which are open wills, will be necessarily included.
    That his is not a forced construction, and that no difference ought to exist, between ologra- phic and nuncupative wills, which have been put under cover and sealed, will he apparent, if we reflect, that the same rule which induced the parliaments of Toulouse and Bordeaux to give validity to mystic wills, not attended with all the formalities which this kind of will re- of will requires, as nuncupative, induced those of Metz and Dijon to support, as olographic, wills which were irregular in the mystic form, which the testator intended to give them.
    The disposition of the Civil Code, which re- lates to the supersription of olographic wills, put under cover and sealed, is not imperative.
    It is true, the object of the law is, principally, to command, to forbid, to permit and punish; but some times it only recommends and advises. The statute says, it is prudent to deposit it (an olographic will) with a notary, to prevent its being purloined, though not being deposited will not make it void, if it be acknowledged and proved in the manner hereafter directed. Code Civ. 230, art. 403. It is then clear, that the object of the law is sometimes to advise. Many other instances of this might be cited.
    The lawdid not speak in more imperative terms of the superscription of an olographic will, put under cover and sealed. "When it is sealed, it needs no other superscription than this, or words equivalent, this is my olographic will or codicil-which superscription must be signed by the testator." Id.
    If thelegislator had intended to render this superscription essential, a sine quá non, would he have used such loose expressions? What is East'n District. meant by equivalent words? Were they not intended to signify that the testator should sufficiently designate the packet as containing his will, lest an indiscreet hand should open it, and in order that after his death it might he presented to the judge, to be by him opened?
    Admitting that the superscription is a sine qua non, was not in the present case the intention of the legislator fully complied with by the testatrix, by the act drawn by the notary, in which she declares that the packet cnntains her will, which she has presented to the notary; an act which she subscribed?
    If the exemption from the pain of nullity in respect to the form of the act of superscription has not been as formally pronounced, in the article of he Code cited, as in the case of the want of the deposit of an olographic will, it may be said to have been as strongly, though impliedly, pronounced, if the whole article be read, and each part compared with the others.
    After giving the form of the superscription, the Code proceeds-" an olographic testament or codicil shall not be valid, unless it be entirely writer, signed and dated with the testator's hand. It is subject to no other form. Id. art. 103.
    The plaintiff's counsel contends, that these words, it is subject to no other form, refer to East'n District, every thing that is required in the article, and not to what is stated in the phrase only. But a close examination of the article will convince the court, that the legislator had not in view what had before been stated-for, in that case, the plural would have been used-it is subject to no other forms.
    It is not reasonable to conclude, that the legislator would give more effect to an open ologra-phic will, than to one which, clothed with the same formality, would have been put by the testator, under a sealed cover. What end could the legislator promise to himself? An olographic will, put under a cover and sealed, may be taken out of the cover, and then cannot be distinguished from one which never was sealed up. How easy would it be to cure the defect in the superscription, by taking out the will and destroying the cover?
    Another reason to conclude that the superscription of the cover of an olographic will is not an essential requisite is, that no evidence is required of it, at the opening of the cover, and it suffices that the will be proved to be wholly written, signed and dated in the hand of the testator. Code Civ. 244, art. 160. When we contrast this with the solicitude of the legislator, in requiring proof of the act of snperscription of a mystic will, we must conclude that the superscription of an olographic will is of little importance. The reason is, that there is no danger of the alteration of an olographic will, which must be wholly written by the testator- while the mystic will, not being necessarily written by him, must be connected with the act of superscription, to be identified.
   Mathews, J.

delivered the opinion of the court. Considering, as we do, the formalities prescribed by law, for testaments to be of such solemnity and substance, that they must punctually and entirely be fulfilled, we are of opin- ion that the will, under consideration, cannot be supported as a mystic one: although it was closed, sealed and delivered to the notary, in presence of a sufficient number of witnesses, and the act of superscription drawn up by him, (in a style, indeed, confuse and indefinite, but perhaps sufficiently intelligible, to give validity to the instrument, were it perfect in other re-spects,) is defficient in a material formality; the testatrix not having declared, at the time of handing the will to the notary, whether it was written by herself, or by another by her direc- tions, and whether she signed it or not. This is a defect, which destroys the validity of the East'n District will, as a mystic one. It remains to be examined, whether it be valid as an olographic will.

The question, whether a will which, on account of informality in its execution, is void in the form intended to be used by the testator, can and ought to be supported in another, provided it be clothed with all the requisite formalities, seems, from the authorities produced, to have been agitated in France, before the introduction of the Napoleon code. In its solution, a contrariety is found, both in the determination of courts of justice, and in the opinions of jurists. Under the operation of the code, this question, although raised in several instances, does not appear to have been formally decided.

Merlin, inhis Collection de questions de droit, in the case of a contested will, discusses extensively the question now under considera- tion-Whether a mystic will, not valid on ac- count of imperfections in the act of superscrip- tion, can be valid as an olographic will, when wholly written, dated and subscribed, in the handwriting of the testator? The general max- im, as laid down by Ricard, in his Traite des donations, much relied on by the counsel for the plaintiff's, is cited and commented upon by Mer- lin. It refuses validity to a will, imperfect in the form, which the testator adopted for ma- East'n District. July king it, notwithstanding it may be attended with all legal formalities, necessary, to give it effect in another form. But Ricard's doctrine, says Merlin, is contrary to a general principle, ff. 29, 1, 3, not only for the will of soldiers, but for those of other persons. It ought not to be presumed that, in choosing one form of ma- king a will, a testator intends so to bind himself to it that, on the omission of any formality required for the perfection of his will, in such a form, it should remain without effect in any other. Nec credendus est quisquam genus testandi eligere, ad impugnanda judi ia sua. According to this principle, which we believe to be sound and rational, when a testament is perfect, in either the forms, in which it may lawfully be made, although not complete, in the one apparently intended to be used, it ought to be considered as valid and effectual. Ricard himself, n. 1617. acknowledges that his opinion is founded only in conjectures, with regard to the wishes of the testator, who, it is presumed, had no intention of disposing of his estate in any other form, than that which he had chosen. yet, when the contrary is expressed by him, in declaring that his will should have effect, in any other in which it may avail, it is East'n District. July 1817. Bi~oui~. AL vs. A S SAN ~ond and valid, if attended with all the formalities req sired by law for any form of testament.

It is really difficult to perceive, why an e~-pression of this kind should be received, as giving additional force to a belief, that the testator iii making his will, is desirous that its disposi-tio~s should b~e carried into effect. On Uie contrary, can any thing be more absurd, than to Suppose that a man, in the solemn act of making his will, should ever intend so to shackle himself with any particular form, as to preclude the possibility of his will prevailing in any other allowed by law, in which it might be good, althought invalid in that which he seems to have chosen ?

The formalities, prescribed by law for the perfection of wills, are intended to prevent forgery and perjury-to give confidence ~o every citizen, that his real wishes, with regard to the disposition of his property, after his death, will be honestly carried into eTh. ct, without fear of injustice from forgery and falsehood. This wise purpose of law is certainly fully complied with, whenever it can be made appear, that a will j~ valiI in any of the forms prescribed. But admitting that on general princi~les of law, the will in coptest ought to prevail, say the plaintiff counsel, it i~ null and voia, according to the dispositions of our civil code. Wills are divided into three principal classes, unncupative or open, mystic or closed and olographic: each of which require particular formalities.

The will, being declared null and void as a mystic one, it is not pretended that it is attended with the formalities required, to give it effect as a nuncupative will. It only remains for us to give a just and fair construction to the pro- visions of the civil code, on which the plantiffs' counsel relies, to shew the nulity of the will, as an olographic one. They are these:

An olographictestament may be either open or sealed: but, when it is sealed, it needs no other superscription than this, this is my ologra- phic will: which superscription must be signed by the testator. An olographic testament shall not be valid, unless it be wholly written, signed and dated with the testator's hand. Code Civ. 230, art. 103. Testaments and codicils, which the testator may please to cover and seal, will still be valid, as nuncupative testaments and codicils, if they be clothed with all the formali- ties prescribed for the validity of these acts respectively. Id. 104.

Under theserules it is contended, that the present will cannot he supported as a sealed olographic will; because it has not the super- scription required by law, nor any thing equiva thing equiva� lent: further, that, having been sealed by the testatrix, it can have no validity, as an open olographic will; because the last article cited from the code gives validity to such only, when they have the formalities prescribed for nuncupative wills.

It is clear, from every circumstance in the case, that it was not intended by the testatrix to make a sealed olographic will. The superscription on it was intended to be that of a mystic will, and has nothing equivalent to that of a sealed olographic will, and the will therefore cannot be valid as such. If, by a correct construction of the 104th article, it cannot avail as an open olographic will, we will have to lament the absurdity of a rule, which gives a preference to one form of wills over another, to which it is not rationally entitled. But, this we do not believe to be the case. From an examination of all the definitions and rules on the subject of wills, we are of opinion that it was not the intention of the legislature to confine this liberal provision of law to wills strictly and technically termed nuncupative. The definition of them is in the alternative, nuncupative and open, and gives them a character distinct and separate from the mystic or closed. Not so, in relation to wills, which have the olographic form-they may be either open or closed : and, notwithstanding it may have pleased a testator to cover and seal up his will, its validity shall not be destroyed; or, in the language of the code, it will be good as a nuncupative will, if it be attended by all the formalities prescribed for such acts respectively. This provision of the law is introduced after the classification of wills, and a minute description of all the formalities necessary to the perfection and validity of wills of each class. It is not expressly declared that a will, which may have been sealed up by the testator, shall not be good in any other form except the nuncupative, limitedly and technically so called-nor do we believe that the legislature, in using the word nun-cupative, intended to exclude the olographic will from the same provision, provided it has the formalities required: because the one form. is not entitled to any preference above the other, anti if there be any difference, in favor of either, the olographic ought to have it-being equally or more secure against perjury or forgery-because the word nuncupative may be taken in the alternative, open, and would then be opposed, in the common acceptation of the word, to closed or sealed, and consequently the expression of the code will allow validity to any will perfect in either of the open forms, although it may have been sealed up by the testator.

Upon the whole, we are of opinion that, notwithstanding the will under consideration is null and void, as a mystic will, which the te-tator seems to have intended to make, it may and ought to be valid, as an olographic will, should it be proven to have all the formalities required for a perfect olographic will. As it i~ declared, in the body of it, that it was made, written, signed and dated, in duplicate, in the handwriting of the testatrix, which seem to be all the formalities required for the perfection of an olographic will, we think that the district judge erred in refusing to permit the defendant to prove by witnesses the handwriting of the testatrix, in the manner prescribed by law.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be aunulled, avoided and reversed, and that, the cause be remanded, with directions to the judge to allow the defendant and appellant to prove, by legal testimony, all facts and formalities required by law, for the validity of olographic wills-particularly, that the will in the present case, is entirely written, signed and dated with the testatrix's hand.  