
    SUCCESSION OF Henry LYONS.
    No. CA-0635.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.
    Rehearing Denied Nov. 22, 1983.
    Writ Granted Jan. 27, 1984.
    James H. Minge, New Orleans, for appellant.
    Milton E. Brener, New Orleans, for appel-lee.
    Before REDMANN, GULOTTA, GARRISON, BARRY and LOBRANO, JJ.
   GULOTTA, Judge.

In this will contest, Henry Lyons, a nephew of the decedent (Henry Lyons, Sr.) appeals from a judgment annulling the December 14, 1981 olographic will, which names the nephew as universal legatee.

The two-pronged attack in the trial court was that the will was not in the testator’s handwriting and that the testator lacked testamentary capacity. The trial judge concluded that the will “was written and signed by the decedent”, but did “not believe that the decedent had testamentary capacity on the day the Will was written.”

The primary thrust in this appeal by the proponent is the trial court erred in concluding that decedent lack testamentary capacity. Supplemental briefs, however, discuss the issue whether the will was written by the testator.

Because we conclude the opponents of the will failed to carry the required burden of proof to show lack of testamentary capacity, we reverse.

TESTATOR’S HANDWRITING

The one page will reads as follows:

“December 14, 1981”
“I Henry Lyons Sr a resident of 2822 Louisiana Avenue New Orleans Louisiana make this my last will and testament I Bequeath all of the property that I own at the time of my Death to my nephew Henry Lyons I appoint him executor of my estate with full and free Seizin and Dispensed from giving any Security This my will written, dated and is signed by me at New Orleans Louisiana in my own handwriting on this 14th day of December 1981.”
“Henry Lyons”
“One page only”

The testimony regarding the testator’s handwriting was contradictory. Henry Lyons, the universal legatee, and decedent’s niece, Velma Dennis, both testified that the will was in the decedent’s handwriting. Their testimony was buttressed by that of Cy Courtney, a handwriting expert, who compared other writings of the decedent, including a 1951 letter and envelope, and a 1980 Christmas card and envelope, together with a NOPSI identification card bearing the testator’s signature.

On the other hand, the testator’s niece, Geraldine Lyons Miller, and testator’s nephews, Walter and Blaine Clay, testified that the will was not in the testator’s handwriting. Another niece, Rosedale Lyons, stated that portions of the will did not appear to be in the decedent’s handwriting, particularly the testator’s signature.

Opponents point out as significant the testimony of a niece and nephew who stated that their late uncle had never used the name, Henry Lyons, Sr., as it appeared in the olographic will. Although it is apparent (from a comparison of the will with earlier writing of the decedent) that the testator did not refer to himself as Henry Lyons, Sr., we place no such importance on this difference. The will was not signed Henry Lyons, Sr., and the only reference to the use of Sr. is in the body of the will, which was prepared by an attorney as a form for the decedent to follow in writing the will.

When we consider the contradictory lay testimony together with that of the handwriting expert, we cannot say the trial judge erred in finding that the will “was written and signed by the decedent, Henry Lyons.”

TESTAMENTARY CAPACITY

Having so concluded, we are now confronted with the primary thrust of the proponent’s appeal, i.e. the question of the testator’s testamentary capacity.

Well-settled is the rule that testamentary capacity is presumed, and that a person attacking the will has the burden of proving lack of capacity at the time the will was executed such that the testator was not sufficiently sound of mind to understand fully the nature of the testamentary act and appreciate its effect. See Artigue v. Artigue, 210 La. 208, 26 So.2d 699 (1946); Succession of Orlando, 419 So.2d 559 (La.App. 4th Cir.1982); and Succession of Zinsel, 360 So.2d 587 (La.App. 4th Cir.1978), writ denied 363 So.2d 72 (La.1978).

It is also well-settled that the degree of proof required to overcome the presumption of testamentary capacity is similar to that required of the prosecution to rebut the presumption of innocence in a criminal case: The opponent of the will must prove beyond a reasonable doubt that, at the time the will was made, the testator did not have sufficient knowledge and understanding of his action. See Succession of Lambert, 185 La. 416, 169 So. 453 (1936); Succession of Dubos, 422 So.2d 444 (La.App. 4th Cir.1982); writ denied 429 So.2d 132 (La.1983); Succession of Orlando, supra; and Succ. of Collins v. Hebert, 377 So.2d 516 (La.App. 3rd Cir.1979), writ denied 379 So.2d 15 (La.1980).

While the evidence, again, is contradictory regarding testamentary capacity, of significance is the absence of evidence showing lack of testamentary capacity at the time the will was written on December 14, 1981.

Henry Lyons, decedent’s nephew, testified that he had brought the decedent to the hospital on December 11, 1981. On December 14, the day of the writing of the will, he brought the form prepared by an attorney for use by the decedent in writing the olographic will. According to the nephew, at approximately 1:30 a.m. on December 15, the testator gave him an unsealed envelope containing the December 14 will.

Velma Dennis, one of decedent’s nieces, stated she had visited her uncle regularly during 1981, and had seen him on more than five occasions during his hospitalization in December. Her last visit was on the weekend before decedent’s death on Thursday, February 5, 1982. She observed on these visits that the decedent was alert and apparently aware, and that his mind was clear. Although she could not state that she had seen her uncle on December 14, she did testify that she had visited him the second day after he became hospitalized on December 11, and approximately every other day thereafter.

Wayne Lyons, the universal legatee’s son and decedent’s great-nephew, last saw the testator in the hospital on December 21, 1981. According to this witness, the decedent appeared to be aware of what was going on around him, did not seem confused, and appeared to be able to take care of himself. Wayne did not see the decedent on December 14, the day of the writing of the will.

The nurses’ notes during decedent’s hospitalization are especially illuminating. On December 14, despite a temperature of up to 101.9° (noted by the trial judge in written reasons), the decedent was “easily aroused” at 12 a.m., was “alert” at 7:30 a.m. and was “alert and oriented” at 4 p.m. The nurses’ notes indicated that at 10 p.m. on December 12, the decedent was “easily aroused” and “alert and oriented”. The notes further reflect that the decedent was observed reading at 11 a.m. on December 13, and exhibited a good appetite on December 13, 14 and 15.

Witnesses testifying regarding decedent’s lack of testamentary capacity included, for the most part, nephews and nieces who would benefit from an earlier will if the December 14 olographic will were held invalid. One of those nieces, a registered nurse supervisor, saw the decedent on one occasion, on the Sunday before decedent’s Wednesday, December 30 surgery. At another place in her testimony, she stated that this visit occurred one week before the surgery. This witness observed during her 45 minute visit that her uncle was confused and disoriented.

Another niece, who visited the decedent at the hospital either every day or every other day, stated that decedent had “good days and bad days.” She visited on December 13, 16, and 19. Regarding her December 13 visit, she stated the decedent was in “very bad shape.”

Although an opponent nephew stated that his uncle was disoriented while in the hospital, his brother indicated that several times during his hospitalization his uncle “made sense”. Another niece testified that when she first visited her uncle about his fourth day in the hospital, he did not seem to understand what was going on.

Another of decedent’s nieces testified that her uncle was incoherent during his hospitalization, but that on December 19, the decedent had signed checks and, although he needed help with his signature, he had understood what he was signing and what the money was for.

Decedent was first seen by his general surgeon on December 16, 1981 for approximately 5 or 10 minutes, and again on the following day. He performed the operation on the decedent on December 30. This physician observed that he had difficulty communicating with the decedent who would only understand after much repetition. He did not think decedent would understand exactly what he was signing regarding any business matters or disposition of his property. This opinion is suspect, however, considering that the decedent had signed consent forms on December 11, December 21 and December 29, for emergency treatment and operative procedures.

This evidence considered, we are led to conclude that the trial judge erred in finding that decedent had lacked testamentary capacity at the time the will was written. We differ from the trial judge not on credibility, but on the sufficiency of the evidence. The opponents failed to overcome the presumption of testamentary capacity and to establish beyond a reasonable doubt that the testator lacked capacity when the will was made. Significantly, none of the witnesses offered by the opponent specifically stated that on December 14 the decedent had been disoriented to a point where he had not understood the nature of a disposition. Furthermore, the nurses’ notes on the day before, the day of, and day after the writing of the will indicated that the decedent was alert and oriented.

Accordingly, the judgment of the trial court dismissing the petition of Henry Augustus Lyons offering for probate the olo-graphic will dated December 14, 1981, is reversed and set aside. This matter is remanded to the trial court for further proceedings consistent herewith.

REVERSED AND SET ASIDE; REMANDED.

REDMANN, C.J., dissents and assigns reasons.

REDMANN, Chief Judge,

dissenting.

Comparison of the will — especially its signature, whose being traced twice is evident to the naked eye — with the admitted specimens of decedent’s handwriting demonstrates that the will is a forgery.

Yet it is not, of course, the burden of the opponents of a questioned will to prove forgery; rather, as La.C.C.P. 2903 expressly declares, it is the burden of the will’s proponent to prove its genuineness.

The trial judge manifestly erred in his two-line obiter dictum finding (in the course of declaring the will invalid for lack of testamentary capacity) that the will is in decedent’s handwriting — implying that proponent had carried the burden of proof.

The only conceivable explanation for that finding by the trial judge is that, instead of himself comparing the handwritings, he merely relied on the conclusion expressed by a witness accepted as an expert — a conclusion unsupported by any underlying factual assertions save that the expert had compared Hs and Ls in Henry and Lyons and concluded that the Ls (not the Hs and Ls) “were in range of [decedent’s] writing.”

A forgery is, by definition, a deliberate attempt to create handwriting that looks like the imitated writing. Thus the fact that there is some similarity to the imitated writing is always present in the case of a forgery. That Ls (or Hs and Ls) in this will are similar to decedent’s does not prove, in the face of the many and consistent dissimilarities, that this will was written by decedent.

Perhaps the worst thing about this will is its signature. The naked eye can see that it consists of two “signatures,” one in light ballpoint ink over which there is traced a second, in visibly different-colored, darker, liquid ink (the same -as that used for the body of the will). The signature appears to have been first traced onto the paper using the lighter ink, and then traced over in the heavier ink. The lighter ink is often visible to the naked eye, because not always covered by the darker ink: in the bottom half of the first downstroke and under the cross-stroke of the H, in the loop of the e, on the underside of the first arch of the n, almost throughout the L and y, on the underside of the second arch of the second n, and under the final stroke of the s. With the slight enlargement of a two-power magnifying glass, the ballpoint writing is visible elsewhere and, in the fluorescent lighting of the writer’s office, the ballpoint ink has a reddish east to it that is not present elsewhere in the will (not even in the written-over word “with” at the end of the ninth line, apparently written over as if the pen’s two nibs had spread apart, or perhaps the pen had been turned, as appears elsewhere in the will, at an angle, so that ink flow was interrupted). That reddish cast is visible through the darker ink when it covers the lighter ink, and it is present throughout the signature, from start to finish — including in the unprecedented double line in the bottom of the H’s initial downstroke (apparently an error made in the ballpoint tracing that was repeated in the dark ink overtracing, to conceal it).

Photocopies of the known samples of decedent’s writing and of the will are attached as an appendix.

A lay witness called attention to the difference between the will’s Hs and Ws and those of the decedent’s writing.

The decedent’s Ws (from the 1951 letter, save the last, from the 1980 Christmas card):

The will’s Ws:

Every one of the 11 known sample Ws has center strokes (where, in effect, double Us join to form a W) very much higher than the side strokes — perhaps twice as high or higher (as if a double J, with the second J backwards). There are ten Ws in the will, and not a single one has its center strokes higher than the side strokes. Every one of decedent’s six Ws beginning a word has a circle-like stroke at its start, and not a one of the four initial Ws in the will does. Not a one of decedent’s eight non-terminal Ws joins itself to the letter following it, while every one of the will’s four non-terminal Ws does.

The Hs are not here photocopied (although they may be inspected in the appended photocopies of the entire documents), because proponent’s expert said he compared the Hs (and Ls, “from the writing of Henry and the word Lyons,” that is, from the signatures or other instances of “Henry” and “Lyons”). The point of this dissent is not to argue with what that expert said, but to argue that he did not say enough to constitute proof of a will attacked as a forgery; and it was proponent’s burden to prove that the will was written, dated and signed by decedent.

There are many other repeated discrepancies, a few of which are here illustrated.

Decedent’s personal pronoun “I” (six from the letter, one from the card) is unfailingly a small i, half a line tall, with upstroke and downstroke never crossing:

The will’s “I” is a small 1 with a dot above it, a full line tall, with upstroke and down-stroke crossing near the bottom to form a clear loop:

Decedent’s small f, on its return from its below-the-line loop, barely touches its vertical stroke before returning to a rightward course:

The will’s f, on its return from its below- its vertical stroke before returning right-the-line loop, proceeds far to the left across ward:

Decedent’s capital B is made with a single cursive stroke, down then looping to the left and back up across its top:

The will’s capital B is made with two strokes, as if made beginning from the bottom of the line and completed, and then adding a second vertical stroke, a straight line:

Decedent’s number 8 is made with a single cursive stroke:

The will’s 8 is made with two strokes, one in the form of an S and the second a straight line joining its ends:

There are other discrepancies, such as the capital S and the small d, p, r and y. (The r gave the will-writer much trouble: the will’s first “December” and last “from” have their r written first without decedent’s characteristic circular stroke at its left top, and then the pen returns to make an evident addition of that circular stroke; and in two places that circular stroke is first made, but then the writer’s own habit took over, for he added after the circle another full but uncircled r — making the words appear to be “propeerty” and “feree.”)

Against this mass of evidence from the will and the known samples of decedent’s handwriting in evidence, proponent offered nothing save the undetailed conclusion of himself and a niece of decedent (whose known self-interest was to defeat rather than support the will) that the will was in decedent’s handwriting, and the virtually undetailed testimony of a handwriting expert. That expert testified that he

“took out the incident [sic] writing of Henry and the word Lyons.... I then mounted the H and capital L on the line in a descent [sic; descending?] order of size .... I was able to find instant [sic; incidence? coincidence?] or near instant L within range. All the L’s were in range of his writing in the L writing and I concluded that these were written by the same hand.”

That expert does not discuss a single other letter or characteristic of decedent’s writing or of the will (and he does not even testify that the Hs appear to be written by the same hand).

It must be said that opponents had employed some purported handwriting expert, yet did not call him or her to testify. But the only inference from failing to call that possible witness is that that witness (of undisclosed qualification, if any; only two persons claiming to be handwriting experts are listed from the New Orleans area in the current classified telephone directory) would not have testified that the will was written in another hand.

But proponent’s evidence and that inference do not come close to overcoming the evidence from the will and the known specimens of decedent’s writing-^do not come close to proving that the will was written, dated and signed by decedent.

The judgment appealed from, refusing probate to this will on other grounds, should be affirmed on the ground that proponent did not bear the burden of proving that the will was “written, dated and signed by the hand of the testator,” C.C. 1588. 
      
      . In the original briefs filed in this court, the sole issue presented was testator’s mental capacity. During oral argument, however, the panel expressed concern about the propriety of remanding the matter or deciding in this court if a serious question arose in the panel’s deliberations concerning the genuineness of the testator’s handwriting. Supplemental briefs addressed to this issue were requested, and that aspect of the matter is also now before us.
     