
    F. J. Ratliff, Tutrix, v. W. B. Ratliff, Executor.
    A nuncupative will under private signature, attested by only three witnesses, when there were four persons present, and others in the vicinity who might have been obtained as subscribing witnesses, is invalid.
    APPEAL from the District Court of West Feliciana, Stirling, J.
    
      U. B. Phillips, for plaintiff.
    
      Brewer and Collins, for defendant, contended:
    The only questions ne.cessary to be discussed, relate to the validity of the nuncupative will, under private signature, made by Rvfffin B. Ratliff, deceased. The will was made in the country and attested by three witnesses, residents of the parish, The Code, art. 1576, requires only three witnesses to such testaments, where the will is made in the country, and the witnesses are residents of the parish, and the provision requiring a greater number of witnesses, if they can be had, applies only when the witnesses are non-residents. .
    The emergency of the case rendered the presence and attestation of three witnesses sufficient. Dr. Walher testifies that the testator was rapidly sinking, and that he did not expect him to live through the night. If the attending physician had good reason to believe that it was unsafe to postpone the making of the will, in order to send for other witnesses, and the will was valid at the moment it was made, the fact that the testator lived two days after the execution of the will, cannot invalidate it. Reasonable diligence, and a proper exercise of judgment, is all that is required in such cases. If the will was once good, it has continued to be so.
    
      Robert S. Walker, Dr. Walker's son, was present in the house, but did not sign as a witness. That fact ought not to invalidate the instrument, as he has testified to every fact that his signature could possibly have attested.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, as tutrix of her minor children, who in right of their father, are the heirs at law of Ruffin B. Ratliff, seeks to annul a wilfmade by him in favoi- of the defendant, on the ground that it is a nonoupative will under private signature, and is only signed by three witnesses, although a greater number might conveniently have been procured. The district judge being of opinion that the plaintiff had made out his allegations, annulled the will, and the defendant has appealed.

This case comes clearly within the principle of the decision in the case of Fruge et al. v. Lacayl et al., 1 N. S. 488. That case was decided under the Old Code, but the New Code has made no change in the law, material to the present inquiry.

In this case, there were four persons in the house when the will was made, competent to sign as witnesses, and only three of them were called u pon to attest it; it is also shown, that several other witnesses might have been pro - cured within the distance of one mile, and that the testator lived two or three .days after the will had been made and signed.

Judgment affirmed, with costs.  