EASTERN DIS. If the formalities required by law have not been pursued, a testament is void, May, 1833. no matter how strong may be the moral evidence, that it contains the testator's last will.

LEWIS' HEIRS

vs.

HIS EXECUTOR

ET ALS.

It is sufficient, if the declaration required for the validity of a mystic testament, is made in words conveying the same idea as those used in the Louisiana Code.

The plaintiffs, residing in Virginia, sued as the brothers and heirs of the late Robert Lewis, who died in August, 1832, leaving an estate in New-Orleans. The defendants were his executor, the legatees, and the attorney representing the absent heirs. This action was brought to set aside the mystic will of the deceased; to compel the executor to render his account, and transfer to the plaintiffs all the effects of the succession in his hands. It was alleged that in making the testament, the deceased had not complied with the formalities required by law, and that it contained a fidei commissum and a substitution.

The executor denied that the plaintiffs were brothers and heirs of the deceased, averred the due execution and legality of the testament, and pleaded a want of proper parties.

Turberville, a witness, testified, that he recognised his signature upon the envelope. He first saw the will in the hands of the notary who delivered it folded, but whether sealed or not, witness did not know, to the deceased, telling him it was his will. The latter, who was then sick in bed, acknowledged it to be so, and signed it, but did not open it, nor had at that time any means of knowing its contents. Witness afterwards signed it, when the envelope was closed. He thinks something was written upon the envelope, and that the executor closed it with wafers in the presence of the witnesses.

Lassere, testified, that the envelope was signed by the deceased, saying, when told by the notary that it was his will, "yes it is my will," in the presence of all the witnesses, whose signatures are upon the envelope, of whom two or three had signed before the witness. He does not recollect

May, 1833.

to have seen the other witnesses or the notary sign. Nothing EASTERN DIS. was read to witness, nor did he read any thing before he signed.

LEWIS' HERIS

vs.

Other witnesses corroborated the testimony in part of HIS EXECUTOR Turberville and Lassere.

The notary testified that he heard the will read to the deceased; saw him sign it; received it closed and sealed from him, stating that it contained his last will, written by another but signed by himself; wrote the superscription; read it to the deceased; and saw the envelope signed by the witnesses, who had all been present when the deceased signed.

The Court of Probates declared the will null and void, ordered the executor to render his account, to deliver to the register of wills the property, and pay into court the moneys in his hands belonging to the succession. executor appealed.

Peirce, for appellant.

Schmidt, on the same side, made the following points:

The

1. Plaintiffs have not established that they are the legitimate brothers and heirs of R. Lewis, the testator. La. Code, arts. 89,91, 103, 107, by which the question is to be decided, the laws of Virginia not being in evidence. Taylor vs. Swett, 3 La. Reports.

2. Courts of Probates are not by law authorised to annul a will; this power belongs to courts of ordinary jurisdiction. Code of Practice, arts. 921, 924, sec. 6.

3. Parol testimony inadmissible to prove that the acts declared by the notary to be done in the act of superscription were not performed. La. Code, arts. 2233, 2256; Barry vs. Louisiana Insurance Company. 11 Martin, 630; Sirey, vol. for 1826, 2 partie, 180; 5 Toullier, nos. 464, 501; 11 Dalloz, 32. The will being recorded and having the force and effect of record evidence, cannot be contradicted or falsified by parol proof. The petition contains no sufficient allegation under which such proof is admissible.

ET ALS.

EASTERN DIS.
May, 1833.

LEWIS' HEIRS

vs.

HIS EXECUTOR,
ET ALS.

4. The will is sufficiently closed and sealed. The superscription and process verbal is conclusive proof on the subject. Code of Practice, art. 943. 5 Toullier, no. 501..

5. The law of France furnishes no rule for our government. Because it differs essentially from ours. French Code, arts. 976, 7, 8, 9. Vide 34 Merlin's Rep. p. 1; 15 do. Quest. de Droits, p. 420.

Because authors of reputation hold a contrary doctrine. de Malville Cental, Old Code, liv. vol. 2, p. 442, art. 976. Grenie.

Because the latest decision shows the seal to be mere matter of form. Heritiers Poulet vs. Marbin & Consart, 11 Dalloz, 15.

Because, the reasons of the decisions in France not applicable here. 11 Merlin's Repert., 40, 41, 42, 43. Heritiers Proot, 11 Dalloz, 14. Words must be taken in their ordinary acceptation, and as understood by the community generally. La. Code, art. 14; 6 Toullier, p. 294, no. 313. Even if such meaning be vicious. Ibid, no. 314. Webster's Dictionary shows, that fastening with wafers is sealing, and common usage not only in Louisiana but throughout the United States, sanctions that use of the word. Griffith's Law Register, pages 7, 35, 63, 96, 129, 200, 245, 226, 392, 414, 435, 455, 497, 570, 605, 659, 678, 753, 833, 907, 983, 1034, 1107, 1201. For the mutations which the doctrine of the common law has undergone, see note to page 1201, which shows that a wafer with a blank paper is a seal.

6. Sealing is equivalent to closing and sealing. 5 Toullier, p. 698, and vice versa. Closing is equivalent to sealing and closing. Bonat vs. Bonat, 11 Dalloz, 17. Heritiers Ichon vs. Fontemoing, ibid, 20.

7. The will was duly presented by testator. 1 Grenier, no. 264, p. 267; 5 Toullier, no. 472; 11 Dalloz, p. 21; Nauthon vs. Pellet, ibid, 23. The notary has declared that it was done; and the superscription shows with sufficient certainty that it was done in presence of all the witnesses.

8. The bequest to Nicholas Lewis does not contain a substitution. He takes only the usufruct permitted by La. Code,

May, 1833.

LEWIS' HEIRS

vs.

art. 1509, and which is not susceptible of substitution. 2 EASTERN DIS.' Proudhon, Traité d'Usufruit &c. p. 35 et seq. The children of N. Lewis take direct from the testator, and in the event of their inability the asylums supply their place, which is HIS EXECUTOR, allowable. Vide La. Code, art. 1504; Farrer vs. M'Cutcheon, 4 N. S. 45; and Tarbe vs. Arnaud, not applicable to a similar disposition. In France the question has been decided. Vide Colignon vs. Millereau, 30 Sirey; 2 Partié, 156; Ibid, Quetton St. George vs. Quet, 237.

Mazureau, for appellees.

Slidell, on the same side, made the following points:

1. The will is not closed and sealed, as required by article 1577 of the Code. To close is not to seal. A seal "is a stamp engraved with a particular impression, which is fixed upon the wax that closes letters, or affixed, as a testimony." See Johnson's Dictionary. A seal "is an impression upon wax, wafer, or some other tenacious substance capable of being impressed. See Warren vs. Lynch, 5 Johns. Rep. p. 244, and the authorities there quoted.

2. Article 1577, is not a new provision of the Code, it is to be found in the Old Code, art. 99, p. 228; and effect must be given to the French text. Durnford vs. Clark's Estate, 3 La. Rep. p. 202. "Scellé" means sealed with some impression of a stamp or seal, and the testament is null if there be no impression of a seal. 5 Toullier, p. 451, no. 463; Paillet's Com. on article 976 of Code Napoleon; Dalloz's Jurisprudence de 19 siecle, vol. 11, p. 13; 1 Grenier, Traité des Donations, ps. 472. 479; 2 Delvincourt, p. 306; Merlin's Repertoire de Jurisprudence, verbo Testament, sec. 2, 3, art. 3, no. 4; Favard, verbo Testament, sec. 1, 4, no. 4.

3. The superscription does not show that the formalities of the law have been observed; and any defect therein is fatal. See case of Heritiers Baret, Court Cassation, reported 11 Dalloz, p. 26; Heritiers Lepiserti, 11 ibid. 27, 8; Heritiers Cox, 11 ibid. p. 30; 5 Toullier, p. 455, no. 471, 472; 33 Sirey,

ET ALS.

EASTERN DIS. Recueil General, verbo Testament, ser. 11, sec. 1, cert. 6, no. 10, May, 1833.

*sa

ET ALS.

P.

366. It does not declare that the paper was closed and LEWIS' HEIRS sealed; it only declares that it was sealed. It does not HIS EXECUTOR, declare that the presentation was made in the presence of the witnesses. These facts must result clearly from the terms of superscription, and cannot be supplied by proof or infeSee 34 Merlin's Rep. p. 37. Verbo Testament, sec. 2,

rence.

3, art. 3, no. 13.

All the formalities are strictissime juris, the want of any is fatal. Civil Code, art. 1588; Bouthemy vs. Dreux et al, 12 Martin, 644; Knight vs. Smith, 3 Martin, 163; 1 Grenier Traité des Donations, p. 10, 11, 15, 31, 37.

5. Parol proof may be admitted to contradict the enunciation of superscription. 3 Martin, 62, Laylest vs. Schons; 12 ib. 641, Bouthemy vs. Dreux et al, 11 ibid. 630, Barry vs. La. Insurance Company.

6. Subscribing witnesses are competent to disprove facts averred in act of superscription. There are no grounds of incompetency but those expressly stated in the Code, art. 2260. The provisions of the Spanish law on the subject of notaries, are repealed by act of March 25, 1818, section 25. See 1 Phillips' Evidence, ps. 31,33. 9 Toullier, ps. 492, 495. nos. 312, 313.

7. The residuary bequest to Nicholas Lewis, is a substitution and void. Civil Code, arts. 1509, 1469; Farrer vs. McCutcheon, 4 N. S. 45; 5 Toullier, ps. 16 to 41; 8 Pandectes Françaises, p. 245; 7 Sirey, p. 1211, 1212.

8. The Court of Probates alone could entertain a suit for the nullity of the will. Harty vs. Harty, 8 N. S. 518; M.Conner vs. Dunbar, I La. Rep. 19.

The opinion of the court, MATHEWS, J. absent, was delivered by PORTER, J.

This is an action instituted by the heirs of the deceased Robert Lewis, to annul and set aside an instrument which had been probated as his last will and testament; or in case the will should not be declared void in toto, to have certain bequests therein contained, annulled.