May, 1833. LEWIS' HEIRS

ET ALS.

The petition sets out that the will which the plaintiffs seek EASTERN Dis. to annul, purports to be the mystic will of the said Robert Lewis, written by another person, and for the validity of 08. such wills, the law expressly requires that the same, or the HIS EXECUTOR paper serving as their envelope, be closed and sealed. Second, that the testator shall present the same thus closed and sealed to the notary, and to seven witnesses, or cause it to be closed and sealed in their presence. Third, that he shall declare to the notary in presence of the witnesses, that the paper contains his testament written by himself, or by another by his direction, and signed by him, the testator. Which your petitioners aver, and are ready to prove was not done, and which does not, as it ought to appear to have been done, from the act of superscription of said will.

The answer puts at issue the heirship of the plaintiffs, asserts the validity of the will, and avers the legality of the several legacies contained in it.

There is also an answer by one of the legatees, a prayer of intervention on the part of one Sarah Lewis, and an answer on the part of the attorney appointed to represent the absent heirs, which we do not consider necessary to

set out.

Before we enter on the principal questions in the cause there are two or three points of considerable importance, but of easy solution, which may be disposed of.

proved by reputa

roborating facts

ter of births or

in the state where it is alleged to have been formed.

The first in order of these, is an objection to the sufficiency Heirship may be of the evidence to establish that the plaintiffs are the heirs tion and other corof the deceased. It appears from the testimony adduced, if no official registhat they were born in Virginia, and that in that state no marriages is kept We official register of marriages is kept, nor any of births. think, under these circumstances, that the relationship may be proved by reputation, and by other facts tending to establish the connexion. The evidence on that head satisfies us in the present case, that the plaintiffs are the heirs of the deceased.

The second is, that the Court of Probates had not jurisdiction in this case, and could not entertain a suit to annul a will. We think on the contrary it had jurisdiction, and

a

While an order

or judgment of

the Court of Probates directing

execution of

will is unreversed

8

EASTERN DIS.
May, 1833.

LEWIS' HEIRS

we do not see that any other court had already received the will and ordered its execution. While that judgment or order stood unreversed, no other court could declare the will HIS EXECUTOR Void, and say it should not be executed. The suit was thereno other court fore properly brought, no other tribunal could collaterally

vs.

ET ALS.

can declare the

will void, prevent examine into the correctness of the proceeding by which the

its execution, or

collaterally exa- Will was probated.

mine the correctness of the order or judgment.

The third objection is, that the allegations in the petition did not authorise the introduction of parol evidence to attack the verity of the instrument, even admitting that species of proof to be admissible, under proper averments.

We have already, in order to show the strength of this objection, set out verbatim, the allegations in the petition. It appears to us they did authorise the proof. The plaintiffs say they will prove, that those things which are necessary to give validity to the will, were not done; it is true, they add, that these things do not appear to have been done, as they should appear, by the superscription; but, under these allegations, the fair and just construction appears to us, that they would prove by evidence aliunde, as well as by the instrument itself, that the formalities of law had not been complied with.

But another, and more serious objection, is made to the introduction of parol evidence. The act of the notary receiving the will in the presence of witnesses, is an authentic act and it makes full proof of what is contained in it. To authorise you to disprove its verity, you should have made an inscription de faux, as is the practice in France. Such is certainly the course of proceeding in that country, and it appears there are two inscriptions of this kind. Faux principal, which we understand to be equivalent to a prosecution here on behalf of the state against the authors of the crime. The other is called the faux incidentale, to which we have nothing similar in our practice, and which we do not think it very desirable we ever should. By this proceeding, whenever an act is presented by one of the parties, in the course of a trial, which purports to be authentic, and the other alleges it is not so, the civil suit is suspended until a trial can be had

Moy, 1833. LEWIS' HEIRS

vs.

ET ALS.

on the inscription de faux, which partakes of the character of EASTERN DIS. a criminal prosecution. This, in France, it is proper to re-= mark, is the consequence of positive legislation. Here our legislature have furnished us with no provisions on the subject, HIS EXECUTOR which implies very strongly they did not intend the remedy should be used. Our practice in Louisiana, it appears to us, is more simple and direct, and attains the ends of justice just as efficiently. We do not wait for a judgment in the criminal prosecution, because it could not be evidence against those whose civil rights were affected by the instrument. Instead of the faux incidentale, we permit the party attacking the instrument, to introduce the proof in the civil suit; all we require of him is, that if the act emanates from him, or is alleged to emanate from him, he shall attack it directly, and put his opponent on his guard. 6. N. S. 512. We see rectly, an authenno reason to change our practice; positive law does not have been mado require us to do so-convenience does not. Under our code, we think there is the same authority to bring a suit to set aside an instrument which stands in the way, and obstructs the enjoyment of a right to property, as there is to sue directly for that property itself. And if the suit can be brought, the proof may be admitted, unless we come to the conclusion that what notaries do, is binding on the whole world, which is not pretended, and could not be maintained.

We now come to the merits of the case. The Louisiana Code requires, for the validity of the mystic, or secret testament, that,

"The testator must sign his dispositions, whether he has written them himself, or caused them to be written by an other person.

"The paper containing these dispositions, or the paper serving as their envelope, must be closed and sealed.

"The testator shall present it, thus closed and sealed, to the notary and to seven witnesses, or he shall cause it to be closed and sealed in their presence. Then he shall declare to the notary, in the presence of the witnesses, that the paper contains his testament, written by himself, or by another, by his direction, and signed by him the testator."

A person can only attack, di

tic act alleged to

by him.

EASTERN DIS.
May, 1833.

LEWIS' HEIRS

vs.

The object of these ceremonies, is to prevent impositions being practised on men in their last moments. And the law, in its anxiety to guard against the testator being circumvented, or practised on, will not permit a testament to have If the formalities any effect, no matter how strong the moral evidence may be have not been that it contains truly his last dispositions of his property.

HIS EXECUTOR

ET ALS.

required by law,

pursued, a testa

ment is void, no The formalities, (our Code says) must be observed, otherwise

matter how strong

evidence that it

may be the moral the testaments are null and void. Courts of justice, therecontains the tes- fore, can do nothing else but inquire, when a case of this kind arises, whether the formalities have been pursued.

tator's last will.

In the case before us, the evidence satisfies us, that the testator did not declare, in the presence of the witnesses, whether the will had been written by himself, or by an other under his dictation, and signed by him. This declaration is required to guard, as much as possible, against the substituting, thereafter, another will in place of that which the testator presents, and in furtherance of the object which the law has so much at heart, is not without its utility. But whether of utility or not, it is a formality in the making of a will; it is a formality which has not been pursued, and for want of which the law has declared the testament shall be null and void.

It has been contended that the words used in the law are not indispensably necessary to be followed by the testator, and that other language, which conveys the same idea, is sufficient. This is true, and there are several cases decided in the if the declaration French courts on that principle. Whenever it can be fairly validity of a mys inferred from what was done, that the law has been complied

It is sufficient,

required for the

tic testament is

made in words

conveying the with, it is sufficient. Here we cannot indulge in such a those used in the presumption, for the proof repels it.

same idea, 25

Louisiana Code.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Probate Court be affirmed, with costs.

DESLONDES vs. WILSON ET ALS.

APPEAL FROM THE COURT OF THE FIRST DISTRICT.

EASTERN DIS.

May, 1833.

DESLONDES vs.

WILSON ET ALS.

The public offer of a reward for the recovery of lost property, creates an obligation on the part of the loser, which may be enforced by the person, through whose means the property is restored.

A part of the reward only is due to the finder of a part of certain articles, for the recovery of all of which, the reward has been offered,

The facts of the case are fully stated in the opinion of the court, PORTER, J. absent, delivered by MARTIN, J.

The petition states a negro slave broke open a press in the plaintiff's house, and stole therefrom, a sum of about three thousand dollars, with a number of valuable papers; that he was arrested on board of a boat, and jumped into the river and was drowned, and afterwards, his body being picked up, a packet, containing two thousand five hundred and eightytwo dollars, in bank paper, was taken out of his jacket pocket, and deposited in the Bank of Louisiana, by the defendant, Wilson, to be delivered to one of the other defendants, mayor of the city of New-Orleans, on a check which the first named defendant gave him. The present suit was brought against them and the cashier of the Bank of Louisiana, for the purpose of obtaining the said packet.

The mayor deposited in court the check, which the defendant, Wilson, had given him, and denied any agency in

the matter.

The cashier admitted the special deposit of the packet by the defendant, Wilson, in bank, denied having ever refused, and averred his willingness to deliver the packet, on the presentation of the check.

The defendant, Wilson, admitted his taking the money from the body of the drowned slave; denied the plaintiff having ever exhibited any proof of the money being hers, and