Godden v. Executors of Burke

The opinion of the Court was delivered by Bermudez, C. J. The plaintiff, as the only lawful issue of Edward Burke, attacks her father’s will and seeks its nullity on two substantive grounds! 1st, unsoundness of mind and mental incapacity; and 2d, undue influence on the part of the universal legatee, his brother. The executors named and all concerned in maintaining the will were made parties. Their defense is a general denial, and the special averment that all that portion of plaintiff’s petition which charges that the will was made through the instrumentality or at the suggestion or captation of the universal legatee is, even if true, which they deny, not susceptible of proof under the laws of Louisiana, and that evidence tending to show such allegations to he founded in fact, must be excluded. The wide door opened by the lower court has permitted thelitigants to accumulate written evidence and oral testimony, swelling the dimensions of the. transcript to upwards of one thousand pages, some fifty witnesses testifying in the case during a protracted trial. Por reasons orally assigned, which were not, therefore, embodied in the transcript, judgment being rendered in favor of the defendants, the plaintiff has appealed. While we well appreciate the feelings of defendants’ learned counsel in his deprecation of this enormous record, we are placed in the necessity, under the law governing such cases, of overruling in globo the many hills of exceptions with which the defense has come up to us, and which were taken to exclude certain testimony on the issue of insanity. It is no doubt a rule of law, that in questions of insanity, non-expert witnesses are required to state the facts which have come under their observation, and are not permitted to express mere impressions or opinions; hut the law allows them to announce the result impressed — 162 — upon tlieir minds by the occurrences specifically testified to by them. An exception to the rule is made as to witnesses subscribing- a will. Professional experts themselves, although authorized to express a scientific opinion, must make known, the circumstances upon which it is based, whether the facts be or not to their personal knowledge. 'They are rather generally called upon to utter a judgment upon given or stated facts. The philosophy of the law is, that it is for the court to draw conclusions from the established facts. Chandler vs. Chandler, 21 An. 58, and authorities there cited. It was under the guidance of those well settled and wise rules that the District Judge has permitted the testimony complained of to he received, and has thus enabled this Court to pass upon and weigh the statements of a number of witnesses belonging- to different classes of society, among whom are found a cotton screwer, a plasterer, a milkman, a barber, an ironmonger, a barkeeper, a jeweler, a watchmaker, ■a pedagogue, a priest, a doctor, a druggist, a lawyer, a notary, one of his clerks, a bank president, bank employees, a wife, a daughter, store .clerks, body servants, tenants, customers aud friends. We think the evidence was properly admitted. We are next requested to notice that the petition avers no defect of form in the-will; that when the plaintiff attempted to go into the mode and manner of the. making- of the will the defendants objected, and that their objection is put of record. An inspection of the entry of the objection shows that it was made after the most material portion of the testimony on the circumstances which transpired at the making of the will, had been introduced by the defense itself, and that it was urged on the ground that the testimony was irrelevant and not pertinent. , The charge that “the pretended will was made through the instrumentality of Augustin Burke,” substantially includes that of undue influence .iu the procurement of the will. It is true that the allegation might have been made more explicit, hut the defendants did not except and call for a declaration or enumeration of thefacts and circumstances justifying the.charge. Far from doing so and considering that the petition.was pregnant with such charge, the deftmdanfcs themselves, in their anxiety to close the door against any evidence to prove suggestion of the will, found that the petition charged besides, suggestion and captation. Denying the same, they specially pleaded in their answer that such charge was not susceptible of proof under the law of the State. On the trial, relying- on this defense, they objected to evidence offered to show suggestion at the time of the making of the will. — 163 — To that end they rely on Article 1492 R. C. C., which declares that “ proof is not admitted of the dispositions having been made through hatred, anger, suggestion or captation.” . It is an error to suppose that this Article, which was.first incorporated iu the Code of 1808, and which finds no place in the Napoleon Code, was designed to prevent the admission of proof to establish the circum-. stances which transpire at the making of an authentic will, undercharges tending to the nullity of the act, for want of compliance with the exigencies of the law. The prohibition embodied in that Article against the admissibility of certain proof,- was intended to apply only to facts arisen prior to the making of the will.and to close effectually the door against inquiries into the motives which animated a testator in disposing of his property. It does not at all forbid the introduction of proof to show facts which occurred during the making of the will, such as: that the will was not dictated by the testator, but was suggested to him, in part or in whole, either by the notary, one of the witnesses, or somebody else in attendance. In other words, it permits the hearing of evidence of suggestion, of prompting; he., that in the.dictation ” to the notary, the testator performed the part of an automaton. Unless it was so, it would ever be impossible to prove that the dictation was .the result of intimidation, fraud, or some other ill-practice, or to establish some other fatal irregularity. The record discloses the fact that while the notary, a witness for defendants, was on the stand, testifying as to the will in question then before him, he was asked by the defense to “ state the circumstances under which that will was made,” and that he did so. It also establishes that one of the subscribing witnesses to the will, sworn for the defendants, was by them asked to “ state the whole history of the making of the will,” and that he did so. It also shows, that when the universal legatee, sworn for himself, was on the stand,- he was asked by his counsel to state what happened on the 3d of June, the day of the making of the will, and that he did so, including the making of the will, at which he was present. It is onlyr after such questions had been put by the defense and answered, that the plaintiff propounded, on the cross-examination, questions, in order to elucidate or establish more clearly the circumstances which transpired during the will making ceremony. The allegation of the petition: that the wjll was procured by the in-í strumentality of Augustin Burke, the universal legatee, was amply broad to justify the offering and admission of explanatory'proof of subordinate facts, substantially found within the allegations. As the defense had first instituted inquiry as to those circumstances, — 164 — it was perfectly legitimate for the plaintiff to have availed herself of the opportunity and by cross-examination to have elicited facts from the witnesses of the defense, whom she might have apprehended putting on the stand, in her own behalf. The defense should not have made an opening for the cross-questions. As these were provoked, they were properly allowed to be put and answered. ■ If the allegation in plaintiff’s petition was vague, its insufficiency was remedied by the answer and by the examination by the defense of witnesses to show the circumstances under which the will was made, which were matters implied by the nature and object of the action. 9 L. 322; 7 R. 121; 14 L. 189; 6 An. 531; 7 An. 48, 84; 14 An. 81; 19 An. 516. The testimony introduced, under such circumstances, has produced the effect of enlarging or expanding the somewhat unsatisfactory allegation of the petition. That averment was no doubt such as could have been amended by a supplemental petition. It is the policy of the law, in its abhorrence of a multiplicity of actions for the same purpose, that all facts tending to terminate a controversy touching- one object should be introduced, considered' and finally adjudicated upon, in order to set differences on that subject forever at rest. Interest reipubliece ut sit finis litium. The object of pleading is to inform the opposite party of the nature of the demand, or of the resistance; and to foreshadow an intention to substantiate it by evidence, that he may not plead surprise, and be prepared to rebut. Pertinent evidence, under substantial allegations announcing it, of whose existence and probable production the adverse party was aware, or was presumed to be, cannot therefore be excluded. It can the less be so, when it is elicited by cross-questions, touching important matters brought to light in the examination in chief. The party who instituted the inquiry cannot, after establishing the facts revealed, be permitted to close to his adversary the door which he himself had thrown wide open. What is legal for the one, cannot be illegal for the other litigant. They must have equal rights. It is therefore a well established rule, that parties are bound by the evidence introduced by them on a material point, although not strictly presented by the pleadings. 6 N. S. 86; 1 L. 301; 18 L. 321; 9 An. 254; 15 An. 304, 389; H. D. 493, 1155, 1157; L. D. 234, 541, 542. The Court, after having been made to hear and invited to pass upon facts elicited by the parties, either under allegations which were actually made, or which might have been made, conducive to a final determination of the object of the controversy, has a right to and .should — 165 — adjudicate upon those facts as fully as though received under specific averments. The judgment rendered under such circumstances becomes a conclusive bar to a reinvestigation of the matters agitated, Heroman vs. La. Institute, No. 8182, lately decided on rehearing, 34 An. 805; H. D., and authorities there cited. This ruling leads us to the consideration of the merits of the controversy, which itself, as already stated, rests upon two distinct charges, either of which, if proved, would be sufficient to procure the annulment of the will attacked. It is clear, that if, on the one hand, the testator was of unsound mind and mentally incapacitated at the moment of making the will, the instrument must be declared inoperative; and that, on the other hand, if, without being of unsound mind and mentally incapacitated, the testator did not dictate the will in the manner and form required by law, the act must likewise be declared of no effect. We propose to pass mainly upon the first charge and to consider and determine whether the testator was in a condition to dictate, and did spontaneously dictate his will, as the law demands. We have waded through the voluminous transcript and remain satisfied that the written evidence and the oral testimony introduced establish the following conspicuous, or stubborn facts, which remain uncontradicted: Edward Burke was born in Ireland, in 1802; was, therefore, in his seventy-eighth year on the 13th.of June, 1880, when he died. He came over to America some fifty years ago; he went to Patterson, New Jersey, where he married and had one child, the plaintiff, who still lives there. His wife dying in 1836 or 1837, he came to New Orleans, married again, but had no children by his second wife, who survived him. Augustin Burke, the youngest brother of Edward Burke, the main defendant in this suit, has no children and is worth $70,000. Their intercourse was friendly, although on certain occasions not so. They subsequently reconciled their differences. Edward Burke did a substantial business in New Orleans and accumulated a fortune approach^ iug one hundred thousand dollars at his death. In the last days of December, 1879, he -was afflicted with epilepsy,, the first attack of which was of such violence that it suggested to him the probability of impending death, the propriety of making his last-will, -which he made on the 30th of the same month. He declares in it, that he is married, that he has a daughter, who is his forced heir, and that he bequeathes all his property to his surviving consort, insti - tuting her his universal legatee, after making a few legacies. Three — 166 — days afterwards, by writing;'in the same instrument, be revoked and annulled all wills made by him. 1-Iis health continued to ‘fail rapidly. The epileptic fits returned periodically, his memory became affected, he ceased to recognize persons, even a body or house servant, he suspended doing business, wad unable to count money, to discriminate between the different articles of daily food; ancVwas-subject to hallucinations which it is unnecessary presently to mention; ' - 1 Ob'the lst'of June, 1880, Augustin Burke, who had been telegraphed’ to, arrived in New Orleans, from Scotland, which he had' loft on the 16th’of May previous. He found’Edward Burke waiting for him- at-the depot. ‘ They went home together by the-street ear. On the same day they went out together, called at the'office of Ed ward Burke’s legal adviser, but did not find him. They returned home.' The next day they went out again, found the counsel, who,' after hearing both, drew up the form of a-last will and testament. They returned home. On the next day, the 3d of June, they went but together again to the same place, where a notary keeps his office. Edward Burke, Augustin Burke and three gentlemen went to a room up stairs, the notary following shortly'-afterwárds. No conversation passed between the notary or either of the witnesses or Augustin Burke and Edward Barite. One of the witnesses sat by Edward Burke, holding in his baud the paper on which«the day previous the' counsel had'drawn up the form ' of 'testamentary dispositions, prompting to Edward Burke each and every word on it, which Edward Burke, from first to last, repeated, and which the notary took down, one after the other, just as they were uttered. ■’ After the writing was through, the act was read by the notary to Edward Burke and to the attending witnesses, and was nekt signed by all of them. • When the ceremony was over the company parted, the notary and witnesses (his clerks')'returned to their office and the two brothers returned home. It had been decided that Edward' Burke- should leave for Europe on the 8th of the' same month. Early on the morning of that day Edward Burke got up, went down stairs to therear portion of his store and there Cut his throat with a' razor. Five days afterwards he- died. ■ ’ The instrument containing the words' uttered by Edward Burke before the notary on-.the 3d of June, mentions several legacies, amounting together to $6,000, gives to the plaintiff the third which the law allows her as a forced heir, and institutes Augustin Burke universal legatee. On its face, the act, reciting- as it does, the fulfilment of all legal requirements, would appear to be unassailable for any defect of external form. — 167 — It.is not our object to transcribe into this opinion tbe bulky testimony of tlie witnesses beard on the trial of the eas.e. We merely propose to eull from the main declarations of fact and of opinions made by those witnesses. We find that three witnesses, who state facts which have come to .their observation, and have known Edward Burke, for thirty years, testify to the disorder of his mind; that a friend who knew him, for twenty years testified to the same purpose; that two others who have known him for ten years declare to the same effect; that he was considered by them as being of unsound mind and unfit for business,',not knowing what he was about; that his clerks or employees were convinced to the same end; that his wifé and his two servants, inmates of his residence and in constant attendance upon him, who had the best opportunities for observation, knowledge and judgment, testify ¡conclusively-not only to his want of intelligence, to the causes of -his ■decline, to his hallucinations, hut to the.admissions and declarations of Augustin Burke himself, touching the intellectual derangement and incompetency of Edward Burke, as well when,he first saw him on the day of his arrival as subsequently. ,,. We have also considered the testimony of .the doctor who attended .Jlr. Burke. He inquired, when .lie was on the stand, whether he was examined as an expert, and was answered that he was .examined as a witness. He did not see Burke between the 28th of May and the 8th of June. He testifies touching the first epileptic attack and to seeing Burke twice or three times a month. He shows a weakness of memory. .He.does not and could not contradict .the testimony of other witnesses |is to what occurred between the day of th.e arrival of Augustin and that of the attempt at suicide. ...,¥e have also considered the testimony, of-the universal-legatee, of the special legatees who were heard in their own b.ehalf and who have some concern in having the will maintained. ,. We have considered that of the legal adviser and of the notary and can well imagine how, under the circumstances, their attention not having been called to the mental condition of Edward Burke, they thought themselves authorized to. act as they have done, having no reason to suspect an intellectual or moral disturbance in the person appearing for a passing moment only.before them. .. We have not failed to examine besides tbe testimony of tbe other witnesses who testified on the trial.; That.of the bank president, bank clerks, druggist, store cleric, as well as-that of the .priest, are in the negative. It does not impeach or contradict in the lea$t the-affirmative testimony of plaintiff’s witnesses, touching .what did and did not take — 168 — place in tlieir presence, particularly between the end of May to the early part of June and to the day of Burke’s death. The priest, who heard his last confession, would not answer the question as to the mere fact whether he had heard Burke’s confessions during the six months preceding his death. He testifies to the effect that Burke told him that in May he was to cross the ocean, that he gave him several times hearty shake hands and joked with him. This ecclesiastic does not show that he saw Burke while his brother Augustin was here, in the early part of June. What he says touching the condition of Burke, after the attempt to commit suicide, is insignificant and can have no bearing on the question of unsoundness of mind at the time of making the will, for days previous. The tact that he administered the consolations of religion proves nothing, as they are given even in cases of doubtful consciousness and even in extremis. As a rule, the testimony of the defense is negative in character and is not at all such as can be successfully invoked to weaken, and still less to impeach that of the plaintiff. We are satisfied that the proof offered and admitted shows that the mind of Edward Burke, for some time previous to the 3d of June, 1880, was generally arid habitually unsound, and that he was mentally incapacitated from business transactions, and that the will attacked was not proved by the defendants, on whom the burden rested, to have been made during a lucid interval. From the whole, including what transpired at the making of the will, we therefore feel firm in the conviction that Edward Burke was not in a condition to make his will, and that the instrument which purports to be the depositary of his last intentions is not such and is not to be executed. We would here rest with satisfaction our investigations and conclusions were it not for the loud and violent denunciations made of the wife, of the servants, and of the clerks who have testified in the case. It is claimed that they have falsely sworn that, for months before his death, Mr. Burke could not read and write, transact business, count money, do any rational act; that his hands and features twitched, that his eyes rolled in such a way that nobody who had ever known him could meet him on the street and not see that he was insane. It is said that the testimony of those witnesses has been so completely destroyed, that not a shred of it remains. In justification of the demolition, it is shown that Mr. Burke had a bank boob, wrote out deposit lists, drew checks, as late as May 4th, and that he wrote a kind letter to his brother on the 22d of April previous. — 169 — This of itself is insufficient to impair the testimony of those persons, who did not assume to swear to what had taken place out of their presence; they only swore to what was to their knowledge and as far ns they knew. How, indeed, could they swear otherwise, that Mr. Burke had done no business or writing out of their presence? Depositing money in bank and drawing checks, are somewhat mechanical operations, requiring very little intellectual exertion, andaré surely no exclusive touchstone of the soundness of a' person’s mind. Besides, the evidence shows that the last check was drawn on the 4th of May, many days before the violent epileptic attack which took place in the course of the month and lasted two weeks, during which''he remained in bed. The two servants say, blending their testimony together, that in the latter part of his life Edward Burke was subject to ñts, which affected his health. Towards the end of his life, in May particularly, he would know nobody; he could not distinguish meat from potatoes or from fish, salt from sugar, brandy from water; that he would try to put on pillow cases and pocket handkerchiefs for shirts ; would go around the room in the night drilling, militia drilling; speaking about fighting, having a great battle, fighting dogs; that he would buy cotton shirts unnecessarily when he had a quantity of the finest linen shirts at home ; that he would chalk his shoes all around and tiren cut them; that Augustin Burke remarked once: In the name of Jesus Christ, ain’t I to be pitied, to come across the ocean to take charge of a maniac; that Augustin Burke threatened to take his brother to the Louisiana Retreat in this City, which is a private refuge for insane persons of some means; that on one occasion Edward Burke tried to throw a plate at Augustin at the table, while the latter was offering him some meat; that he did not attend to business, that his wife and the clerks did so for him ; that he would have black alpaca sewed on his socks; that Mrs. Burke was in the habit of tying his night shirt to her wrist to prevent his getting up without her knowing it; that his mind was completely gone; that he was perfectly insane. Their testimony is corroborated in all its important particulars by two of the clerks in Burke’s employ and by his widow, all of whom are disinterested. One of the clerks says, that during the last months of Edward’s life, people living in the neighborhood, with whom he was well acquainted, would come to his store and speak to him and he would not know them ; that Augustin told him that he thought Edward’s head was affected; that Edward once called Augustin a scoundrel and did not seem to want him near him. — 170 — Mrs. Burke says that, during the six months preceding her husband’s ■ death lie was subject to convulsions or fits, the first of which occurred some fifteen months previous, in March, 1879; that from that time his mind was affected; that in the beginning he was very violent and that ■the weakness kept on increasing; he did not attend to business; she kept accounts and the boys attended to the business; for three months before his death she attended to everything; when he wanted to go out she would send somebody after him ; he did not know what he was talking about; he had a bóok which he was fond of reading and burnt it, never mentioning it afterwards; everything he did was strange; he did not know the time of day ; with his watch in hand he would say it was four o’clock when it was eleven ; did not know the top of the house from the floor; she would pin his night shirt to her wrist to prevent him from getting out unknown to her at night; that he was worried about a dispatch received from Augustin Burke in the end of May; that when Augustin arrived he told her that he had met Edward Burke at the depot; that it was as much as he could do from shedding tears; that Edward’s mind was entirely gone, he was sorry to say; that Augustin threatened placing Edward in the Louisiana Retreat and said, with an oath, ain’t I to be pitied, to come across the ocean to take charge of a maniac; that her husband, during his last days, imagined he was fighting dogs, that he had killed many; would not remember from one minute to another what he was saying; did not seem to care for or notice anything; he was unable to count money ; he wras as crazy as he could be, and could not be any more. We think that the testimony of these witnesses; who were nearest to Edward Burke, who had constant and the best opportunities for judging, and that of other witnesses superadded, establish, more than jprima facie that Edward Burke was of unsound mind and mentally incapacitated from making a valid will. There exist two glaring, convincing facts, which stare in the face, besides the deplorable mental disorders just considered and the circumstances in which Edward Burke made his will, and they are : 1st, ■the unwise and injudicious manner in which he apparently bequeathed the bulk of his estate ; and 2d, his lamentable attempt at committing suicide, followed shortly after by his death. That a man owning $100,000 and having a community half interest therein at his demise, the father of an only,child, somewhat advanced in life, having children, living separate from her husband, a machinist, who is in a foreign distant land striving for a living, a daughter, the fruit of his first love, against whom he had not a word of complaint to utter, ' to whom he has at all times failed in liberality and assistance, should, at the hour, of appearance .before his Maker, leave nothing to her — 171 — beyond the pittance of which the law in its humanity forbade him from, stripping her; that he should, after making' a few insignificant legacies, leave the rest of his estate to a wealthy brother having no children, living abroad, aud nothing to his other relatives, is indeed strange aud unnatural, and does violence to well conceived ideas and customs for the transmission of property by last will. The fact of that brother hurrying.froin across the ocean to the deathbed of the old man, of his never leaving him while here, of his going with him three times to law offices, assisting at the making of the will, nor whispering a word about it until after deatli liad stilled the testator’s mouth ; the fact of that brother determining to take the invalid old man, in his advanced age, on a trying journey across the stormy ocean, alone, -without his wife, who had shared the smiles and frowns of his fortunes, who had stood by him and cared for him in his estrangements, coupled with the horrifying culminating incident of the attempt at suicide, point dreadfully, but correctly to the inference, if not proof, that the poor demented was laboring powerless under the influence, the pressure of his brother, aud in the desperate use of what little energy was left him, preferred to die rather than to follow aud be controlled any longer. Suicide, it is true, is not, as an inflexible rule, considered in itself as evidence of insanity, but it cannot be denied that in most cases it is committed in moments of mental aberration, and is an act which nothing oan otherwise justify. It is manifest that, under such a state of things, the burden of proof was upon the defendants to show, if such was truly the fact, that the will was made' during a lucid interval. R. C. C. 1783, (9); 6 An. 108; 21 An. 58; 4 Cowan, 207; 6 Cald. (Tenn.) 21; 1 Paige, 171; 28 Md. 15; 9 Pa. 151; 36 Ind. 69; 1 B. Mon. 263; XIV U. S. Digest, 306, (1384). The testimony and written evidence introduced by them has not thrown any doubt on the question of insanity ; that of Augustin Burke, the universal legatee, which assumes to contradict the depositions of the clerks, the servants and the widow, is of the weakest kind. It vacillates when it should have been positive and peremptory, and far from affecting, rather corroborates what those persons have said. The excitement under which it is said they were, when testifying on the stand, may be well understood and explained by the invasion of then-hearts by feelings of surprise and indignation on the discovery of the manner in which the estate was apparently to go. They are disinterested and uncontradicted. The defendants have attempted to show that the will was made in a lucid interval, but they have not succeeded. The very manner in — 172 — which the will was made, the prompting of it, word by word, by the ■ witness to Edward Burke and repeated by bim as suggested,, clearly demonstrate that he was not in a condition to make a spontaneous. declaration of his last intentions, and have them-followed and written , ,down. That will was not a will dictated by a testator, as the law requires... It was a will dictated to a testator and repeated by him like an automaton. ,- The very definition of the word testament, (testatio mentis) in the Eoman law, shows that it is an act which must contain the spontaneous-manifestation and free expression of the testator’s volition.. .. Testamentim. ut voluntatis nostra justa sententia, de eo quod quis postmortem suam fieri vult. Modest, D. 28, ii; Ulpian Eeg. 20, §1; Ortolan Just. 1, 522; L. 11, t. x. Coin Delisle on Donations and Testaments, p. 370, No. 8, says: ■ “ II n’y aurait pas dictóe, dans le sens moral, quoique le testateur efit prononcé ses dispositions ii haute voix et qu’elles aient été écrites mot & mot, si une personne présente it l’acte et remplissant, en quelque sorte, le róle de souffleur, avait, en présence du no tai re, inspiró au testateur les dispositions que celui oi a fait ócrire. Oetle espbee de dietée en sous brdre serait privée du oaractére de spontanéité dont les coutumes, 1’ordonnance et le Code Civil ont voulu donner la certitude.” Also, No. 2; Toullier 5, No. 410; see Eicard, part. 3, No. 52; Marcadó 4, pp.. 13, 14 ; Demolombe, v. 21, p. 237 ; v. 4, p. 240 ; Duran ton, v. 9, p. 12 ; Móurlon, v. 2, p. 399. In the early case of Hamilton, 6 N. S. 144, the Court said, through Judge Martin, that the requirement of dictation means “ that the testator must express his intentions orally, not by signs, but by words and not upon suggestion.” The decision in the case of Landry vs. Tomatis, 32 An, 113, was made under a very different state of facts. There was no dictation to the testatrix of every or any disposition, from beginning to end, and repetition by her, word by word,-of the suggestions, as in this case. She was assisted by her counsel, who served as a witness and who merely suggested words, merely to assist, occasionally,, which it was perfectly legitimate-and lawful for him to do. Coin Delisle, p. 371, No. 12, end of second paragraph; Eicard, No. 55. • In the case of Marigny, 16 An. 267, the Court would not hold that there had been a dictation and maintained the will, which was made in the authentic form, merely as a nuncupative testament, under private signature, holdiug that where the will is merely presented, not only the presentation need not be manual, but that the law does not require proof of- a dictation out of the presence, of the. witnesses.. The — 173 — will of Mrs. Marigny had been drawn up by a notary, in presence of four witnesses, from a written memorandum or paper which the testatrix had handed, and which, after being read to her by the notary, had been transcribed by him; next, reading paragraph after paragraph, and last, the whole as copied from the paper. In their inability, to consider that the will had been dictated, the Court held it valid, as a nuncupative will under private signature,, where no dictation is essential. In a number of cases at common law, suggesting or prompting a will at the time of making it, has been in a number of instances held to be a cause of nullity. 2 J. J. Mart. Ky. 331; 42 Barb. N. Y. 274; 5 Gill &. J. Md. 269; 17 Barb. N. Y. 236; 2 Bradf. N. Y. 133; 1 Redf. N. Y. 220. . What may have occurred on the day previous to that on which the will was drawn up, or subsequently, can be of no assistance to supply fatal omissions at the time of the. making of the testament. The formalities required by law for the confection of an authentic will are specially detailed by law and must be fulfilled at one time and without diversion to other acts. If the formalities are not then and there fulfilled, the will is a nullity and cannot be executed. They cannot be supplemented by occurrences previously or subsequently taking place. The validity of the will depends upon the fulfilment of legal exigencies at the making thereof. To declare judicially that the will of Edward Burke was dictated, as the law requires, would be to write out of the Code the wise provision on the subject, and expunge the wholesome adjudications from the French and our own jurisprudence, by which, without a solitary dissenting voice, all courts have invariably required that the dictation should be the spontaneous offspring and untrammelled expression of the testator’s, volition. It has been held by this Court that testaments are more easily avoided than contracts, on the ground of unsoundness of mind, but that a will may be made during a lucid interval by a person mentally afflicted. R. C. C. 1788; 6 An. 108; 1 B. Monroe, 263. That “ lucid” has been said, by this Court, to be:, not an apparent tranquillity or seeming repose, not a simple diminution or remission of the disease, but a temporary cure, an intermission so clearly marked that it perfectly resembles a return of health, and must have continued for a length of time sufficient to give certainty to the temporary restoration to reason, Aubert vs. Aubert, 6 An. 124; Y. Dig. de acq. vel amitt. poss. 1, 18, $ 1, and furiosum Cod. qui test. fac. pos. 1,. 9; Dig. de Jud. L. 39; Dumour lin, Qui test. fac. pos. — 174 — Without going to the same length, we can safely say that-the will in-' this case was not made in a lucid interval. We have not thought necessary to expound the rules which alienists have seemingly established as tests of the mental condition of persons' apparently affected with intellectual derangement, in order to deter-' mine whether such persons are or not afflicted with incapacitating or-disabling insanity. Neither did we think it useful to show, by medical authorities, that, between insanity and idiocy, unsoundness of mind," which does not amount to complete insanity, or imbecility, finds a proper place as constituting partial mental incapacity or disability. ' In relation to epilepsy, a writer of marked distinction, whose authority the defense does not- dispute but admits, Dr. Affleck, in the 9th Ed. Encyc. Brit, says: that in not few cases there is a steady mental decline which ends in dementia or idiocy, and that the later in life the disease shows itself, the more likely is the mind to suffer. Also, Ray on Insanity, 52, 123, 360, 416, 461, et seq.; Jarman on Wills, Yol. 1, pp. 72, 360; 32 An. 1055. The fitness of that doctrine to the present case is apparent. All the circumstances snrrounding and attending the drawing up of the instrument termed the last will of Edward Burke being considered, we are of opinion that it is established that the testator did notpossess á mind capable of exercising judgment, reason and deliberation, intelligence capable of weighing the consequences of his will and its effects to a reasonable degree upon his estate and his family. We, therefore, conclude, that he was at the time of unsound mind and mentally incapacitated, and that the act, which is fatally defective in its confection, not being the repositary of his last intentions, cannot receive execution. 27 Iowa, 110; 19 Mich. 482. We think proper to say, that although we might, we do not rest this opinion on the defect of form in preparing the instrument. We think there is error in the conclusions of the District Court. It is, therefore, ordered and decreed, that the judgment appealed from be annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered : it is ordered, adjudged and decreed, that there be judgment in favor of plaintiff and against defendants, and accordingly, that the authentic act executed in this City on the third of June, eighteen hundred and eighty, more fully described in the petition herein, and purporting tobe the nuncupative last will and testament, by public act, of Edward Burke, be, and the same is hereby declared to be null and of no effect, and that the dispositions therein contained shall not be executed.- It is further ordered, that the defendants pay costs in both Courts. Poché, J., concurs in the decree, for reasons in his separate opinion.