
    
      KNIGHT vs. SMITH.
    
    East. District.
    
      July 1813.
    
    write the wüí, with his own hand.
    The petitioner stated that John A. Smith, the defendant, had proven, and obtained letters testa-r . mentary on, an instrument purporting to be the last will of her deceased husband : whereupon, al-ledging the said instrument to be no will, being destitute of the formalities required by latvy she prayed, that it might be set aside, and declared mill and void. There was a verdict and judgment for the will, in the Parish Court of New-Orleahs and an appeal was taken to the Superior Court of the late territory, and the record was removed, on. the change of government, to the Court of the first District.
    The cause was there submitted to a Jury and i at the trial, Narcissus Broutin, the notary before 1 whom the will ivas executed, after producing the ⅞ original, deposed that notes were first taken of the ! principal items of the will, by his clerk and in | his presence : the notary not understanding the ; English language sufficiently weir to write the will correctly, tho’ sufficiently well to compre- 1 hend what was dictated. The notes, so taken, were extended oft the notary’s book»- while he was j absent in an adjoining room , and the yiSl afterwards read by the notary to the testator, ⅛ the presence of three witnesses. The testator was then asked by the notary,- in the presence of the witnesses, whether what had been read to him was his last will and testament and answered in the affirmative, and signed the samé, in presence of the notary and the witnesses, who all signed, -in presence of the*testator, except one of the witnesses, who was then absent.
    Where up gn, the counsel for the plaintiff re* quired the Court, to charge the Jury and give its opinion that the will was null and void \‘;..
    1. Because it had not been dictated tp the notary, but to his clerk, .
    2. Because it was not written by the notary, but by his clerk, .
    3. Because it was first taken in notes, on a loose sheet, and afterwards extended on the no-táry’s'book,
    4. Because it was not written in the-very words, in which it was dictated,
    5. Because one of the witnesses was not present at the time the will was dictated or written,
    6. Because another, a fourth witness was not present, when the will was read and did not subscribe, till one year after.
    The Court, however, charged the Jury in vo^r will and expressed the opinion, that it was legally made, and the plaintiff’s counsel took a Jpill of exceptions thereto. •
    There was a verdict and judgment accordingly, and an appeal was obtained to this Court.
    The record being brought up, Hennen, for the appellee, moved to dismiss# the appeal, on the ground that it did not appear from any part of the proceedings, that the matter in dispute exceeded the sum of three hundred dollars.
    Morel, for the appellant,
    moved for leave to file the appellant’s affidavit, in order to supply the deficiency. in the record.
    This being allowed and done, the appellee took nothing by his motion.
    Morel, for the plaintiff."
    All the solemnitie's, required by law, in the execution of testaments, are matters of strict law : and, the absence of any of them renders the instrument absolutely void. 1. Febrero de escr. 33. Recopilacion 1. 2. tit. 4. l. 5. 1. Domat 333 n°. 22, Code Civil 233, art. 108. This principle has lately been recognized by this Court, Pizerot & al, vs. Meuillon's heirs, ante 114. In the execution of this will most the legal formalities have been omitted.
    
      . The will has neither been dictated to, nor written by, the, notary. Our statute requires that the will should be written by the notary as it is dictated by the testator, Code Civil 228, art. 92, that is to say, written word for word, from the very lips of the testator. Now it appears that the testator dictated to the clerk, that the notary having quitted the room, the notes which the cierk had so taken, were by him extended on the notary’s book—so that, independently of the disregard of the formalities required by the law, which imperiously requires that the notary him•self should write, instead of that paper, on which the words dropping from the mouth 'of the testator were received, and which, might be called his will, if it had been written by the notary, we have another instrument, extended, as we are told, by the clerk, out of the presence of the notary.
    One of the witnesses was not present, at the time the will was dictated by the testator, and another was absent, when it was read to and subscribed by the testator. All the witnesses ought to see ancPhear the testator, 1 Febrero de escr. IS n°. 6. Code Civil 92. According to the declaration of the notary, witnesses appear to have attended at the reading of the will to, at the signature of it by, the testator. The law, we have seen, requires they should be present, when he dictates his intentions. A will ⅛ void, tho’ apProve^ and signed by the testator, if it was obtained by suggestion, importunities, threats Or be-» setting the testator. Persons in extremis may yield to those around them and be induced to gratify them. As a protection to their .weakness and infirmity, the law denies its sanction to any instrument purporting to be a last will and testament, received by a notary public, unless he causes himself to be attended by witnesses at the time the testator imparts his intentions tó him. It does not suffice that they should attend, at the signature of the will, (this is required to identify the paper) they must see and hear the testator speak and subscribe his will.
    In the present case, even the identify of the paper, i§ not proved by the legal number of witnesses : one of them appears to have been out of the way, when the will was executed.
    Lastly, this will must be set aside, because it clearly appears, from the very declaration of the notary, that it contains more than was dictated, by the testator. First, the clerk takes down, from the mouth of the testator, n%tes of the principal items of the will: afterwards these notes are extended, and a will is made out, composed, not doubt, of these and of such items as were, in the judgment of the clerk, less important, notprin-cipal, but secondary. The whole of the will does,, not appear to have been dictated by the testator.
    
      The opinion, given by the District Judge, that the will was executed with all the formalities which the law requires, was, therefor, incorrect, and this Court is bound to reverse his judgment.
    Hennen, for the defendant.
    The will was dictated to, and written by, the notary, in as ample and substantial manner, as the law requires.
    The testator dictated his intentions, the notary and clerk being in his presence and hearing. The notary, attending to hear the will dictated, cause and see it written, in the language of the code as the testator dictatednt, and af terwards ascertained, that this was correctly done, by reading it , oyer to him, in presence of the, witnesses, who heard him declare the instrument his last will and testament.
    The notary’s province in all this is purely ministerial. He is the mere instrument, by whose aid the will is effected. He- is to be absolutely passive. He is to exercise no judgment, none even in the choice of the expressions. He is to write as the testator dictates, the particles as here denotes not the time but the manner.r Now, there is not a clearer principle than qui facit per alium, fa* cit per se. He who acts by another, acts himself. In every case, whatever; when a person, is to do a mere ministerial act, as to write or seal \ an instrument, he may cause it to be done by another, his fingers need not hold the pen, his hand needs not turn the skrew.
    
      The difference between the nuncupative will by private act, and that by a public one, consists in the receiving, and authenticating of the will : this is a special, trust, which must be personally executed. Like the taking of a deposition, which the Judge must himself cause to be sworn to and certify, tho’ it may have been written, by his clerk.-
    The material items viz. the disposing clauses were taken from the lips of the testator; afterwards those of style, the averment of his sanity, of his belief iá a future state and tKe like, were added.
   By the Court.

This is a case, in which the Court has to pronounce on the validity of a will, which is said to be defective, in some of the formalities prescribed bylaw. Cases of this nature are always of importance, as they do not merely affect the interest of the parties to the suit, but are of general concern.

The very ancient practice of bequeathing by will has been sanctioned by positive laws, in civilized countries : but, in order to prevent imposition and abuses, strict rules have been laid down, minutely and carefully delining the manner in which this right of bequeathing is to be exer-' cised. At the same time, so anxious were Legislators to secure to individuals all possible means of disposing of their estate, in prospect of death, that they have established a variety of forms, pro-, viding for all contingencies among which the testator may select that which is for him of easier J performance.

In this country we may choose among these sorts of testaments. For those who can write, the olographic testament is commodious, safe, and unex pensive. For those who wish their will to remain secret until after their death, the mystic or sealed testament is provided. Those( who cannot write or are unwilling to trust to their own' capacity to make a testament, may resort to the nuncupative will : this latter sort is again divided into two : the nuncupative testament by public act, and the nuncupative testament under private signature. So that there is hardly any situation in life, where a person cannot make his last will according to one or other of the established forms.

But, if on the one hand, the laiv is on this subject abundantly provident, on the other, it requires a rigid observance of its rules : whatever may be the mode resorted to, that must be strictly complied with. For a testament being the solemn declaration of the testator’s will, according to positive law, every formality required by law for the enacting of it, may be considered as a condition, without which the instrument is not com-píete. It is, therefore, on the compliance of these formalities alone, that the law is willing to recog-f nize the testament as legal, and to suffer the established order of succession to yield to the will of . the testator.

Let us see whether, in this case, thé requisite formalities have been observed. There are several objectións to the validity of this will among which the most material appear to be 1. that the will was not written by the notary himself but by his clerk. 2. That one of the persons mentioned in the body of the instrument, as a witness to the will, was not present at the making of it.

I. With respect to the first, it has been contended by the appellee that what is written by the clgrk of a notary ought to be considered as written by the notary himself: that the law which requires the notary to write the will, cannot mean that he is himself to hold the pen : that, according to universal custom, notaries employ clerks to write for them, and that what is thus written by these, under their order and inspection, is supposed to be written by themselves.

However it may be, with respect to notarial acts in general, it certainly appears that something more than the usual attention of the notary is reqúired in cases of testaments. If it be true that he may, on other occasions, employ the hand of his clerk to write for him, the law relative to the receiving of wills is and must have intended to be an express exception to that custom. If such had not been the object of the law there was no necessity of recommending to the notary .to write the will. For, notarial acts, being those that ara madé before a notary, reduced to writing by, under his direction and rendered authentic by his signature, nothing more was necessary to render the nuncupative will a public notarial act than to provide that it should be received by the notary. Why then this further condition that it should be written by him.

I t is said that the words of a law are generally to be understood in their most known and usual signification, and that, according to this maxim when the law says that the notary shall write, it ought to be understood that he shall either write himself, or employ his clerk, to write for him, as the custom prevails. - But We think that this mode of interpretation would go farther and make this part of the law an utter nullity because it would leave the nuncupative will by public act, on the very same situation, in which it would have been without any such recommendation. If so dangerous a system of interpretation should obtain, few laws indeed would bp able to resist its attacks. But the Court is not disposed to take such liberties with laws that are clear and significant, and is impressed with due respect for a maxim more applicable to this.case than the other, viz. “ That when a law is clear and free from ambiguity, the letter, of it is not to be disregarded under pretext of pursuing its spirit.” The law which makes it the duty of the notary to ; Write the will is not only, clear in its expressions* it is also clear in ^ts object. / The Legislature has, been unwilling to trust any body else but the notary, with the sacred function of writing a will—a function which in unfaithful or negligent hands may be liable to abuse of the most serious and most dangerous nature. But, be that as it may, the law is such and must be obeyed. Should this be attended to with inconvéniencies, the Court could not remedy it. It is, however, satisfactory to reflect that when no notary can be had, capable of writing, in the language of the testator, the will may be made before witnesses alone, so that no possible mischief can result from the strict observance of the law.

II. The other material objection to the validity of the wHl is. that P. S; Godefroy, one of the persons mentioned in the body of the instrument, as a witness, was not present when the will was dictated, nor when it was read.

This is certainly another serious imperfection of this will. For, altho’, it seems that another witness was afterwards called in to supply the pláce of the absent one, it does not appear that this witness was at all present, at the dictating of the will, no does even the oral testimony, admitted to prove that he was present at the reading of it, agree with the letter of the instrument, which says that the will was read “ irj, the presence of the above witnesses ” íhat is to say Go-defroy, Leroux arid Magifbl. Yet, according the rules laid down in our code, which agrees in this respect with the Spanish law, the witnesses must be present, both at the receiving and at the reading of the will. They must, says Febrero “ all at one and the same time hear the words “ from the mouth of the testator. He is to de- “ clare his will before them verbally, clearly and distinctly. ” Therefore, when two witnesses only have been present at the dictating of a will, when three were necessary, and when a third has been called in after the will was written, it cannot be said that the requisites of the law have been complied with. Neither can it be reconciled with the strictness of form required for the validity of testaments that one of the witnesses, named in the instrument as present, should have .been absent, and another witness not at all mentioned should have been called to supply his place.

The other objections raised against this will, tho’ not without some weight, are not deemed of sufficient importance to be adverted to. But, we are of opinion, that a nuncupative will, by public act, must be in the hand writing of the notary himself, and that it must be dictated by the notary to the testator, in presence of the witnesses. Consequently, altho’ there appears nothing in this case, but what is perfectly fair; the Court is bound to say, that his will is not valid in law.

Jx is therefore ordered, adjudged and decreed , the judgment of the District Court be reversed and that a mandamus issue to the Judge of the Court of probates, directing him to cancel anc] annui tiie letters testamentary granted on the will of John Browen, it being the opinion of the Court, that the said will is void. And it is further ordered that the costs be paid out of the estate of said Browen.  