text:
    No. 11,390.
    Succession of Elizabeth Bey.
    1. "When a will is established to have been made by the testator himself, or by a notary at his instance and dictation, in the presence and hearing of the subscribing witnesses, unaided by others, and its provisions and expressions are sage and judicious, containing nothing sounding to folly, these facts establish a presumption, even in the case of a person habitually insane, that it was made during the existence of a lucid intervai, and impose on those who attack the will the burden of proving insanity at the moment when it was made.

      2. Death of tlie testatrix by suicide does not raise a presumption of insanity at date the will was executed. Even when the suicidal act is unquestionably the effect of insanity, it does not necessarily follow that a will prepared within a short time previous is invalid.
    PPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      Farrar, Jonas & Kruttsehnitt Attorneys for Legal Heirs and Administrator, Appellees:

      ‘ ‘ Where general insanity, even with some intervals, is shown, the burden of showing that the particular act in dispute was made during such an interval is thrown on the party who supports the validity of the act or contract.” C. C., Art. 1788, Sec. 9.
    “ A lucid interval under the civil law is not an apparent tranquillity or a seeming repose. It is not a simple diminution or a remission of the disease, but a temporary cure.” Aubert vs. Aubert, 6 An. 108.
    The law recognizes two classes of insane persons — one called furiosos, the other mente captos; the latter class do not enjoy lucid intervals. Aubert vs. Aubert, 6 An. 109.
    Melancholia is classed as mente eaptos.

    Only in cases of furiosos, or where acts of insanity are rare and intermittent, will apparent wisdom of the testament necessitate proof that decedent was sane at moments of its confection. Chandler vs. Barrett, 21 An. 58.
    The decision in Kingsbury vs. Whitaker, 82 An. 1057, must be read in the light of the facts therein involved, which explain the expressions therein and give a different effect thereto than when read by itself.

      Frank Zengel Attorney for Absent Heirs, Appellees:
    A person who is affected with monomania, although sensible and prudent on subjects and occasions other than those upon which his infirmity is commonly displayed, is not, in law, capable of making a will. Wharton and Stille, 45.
    When delusions exist which have no foundation in reality, and spring only from a diseased and morbid condition of the mind; to that extent the mind must necessarily be taken to be unsound.

      Melancholia is settled and continuous depression of the mental faculties.
    0. 0., Art. 1474: To make a donation either inter vivos or mortis causa, one must be of sound mind.
    O. C. 400: The interdiction takes place from the day of presenting the petition for the same.
    0. O. 401: All acts done by the person interdicted, from the date of the filing of the petition for interdiction until the day when the same is pronounced, are null.
    If by facts occurring near the. time of the date of the testament and preceding and following it, the heirs have proved an habitual state of insanity, then and notwithstanding the wisdom of the will the onus would be shifted on to the legatee to prove the sanity of the testator during the intermediate time — that is, at the date of the testament. Chandler vs. Barrett, 21 An. 58.
    It is incumbent on the party alleging mental unsoundness to show it. If general unsoundness is shown before the making of the will, the burden of proof is then on the proponents to show that the incapacity had ceased at the time of execution. 47 American Decisions, 422. •
    Where a person’s acts for a series of years are different from those governing mankind at large, and differing widely from bis former conduct and character; where the change in his intellectual capacity from that of an educated, careful and attentive business man, is to one who is allowed but a trifle of money such as would please a child; whose property and person are entirely in the control of others, brutally exercised and uncomplainingly submitted to; who requires the daily care of his wife to shave him; who at length becomes the inmate of an insane asylum, and thenceforward lives and dies a lunatic. Held, that all these circumstances indicate a clear case of insanity and will invalidate a deed executed under such circumstances. Haviland vs. Hayes, 37 N. Y. 25.
    To render a person competent to dispose of his property by will, it is not enough that he be possessed of some degree of intelligence and mind, but he must have sufficient mind to comprehend the nature and effect of the act he is performing, and the relation he holds to the various individuals who may naturally be expected to become objects of his bounty. Wait’s Digest of New York Reports, 739.

      Where there is conflicting evidence on the question of the mental soundness of the testator, medical testimony has the greatest weight. 4 Wait’s Digest, New York, 761.
    The expert testimony of medical men is the most important of all, for it requires the most minute, varied and extended knowledge; it frequently relates to subjects of an intricate and recondite character; it is applied to the settlement of questions affecting the three great interests which men most love — namely, life, reputation and property.
    The opinion of witnesses; who are not physicians or experts in matters of insanity, touching the condition of the mind of a human being, are entitled to little or no weight as evidence in a trial involving the alleged insanity of a person. Great weight and legal effect will be given to the opinions of physicians and experts. Eloi vs. Eloi, 86 An. 563.
    Wills may be avoided, though there has been no interdiction nor notorious insanity and more than thirty days have elapsed between their date and the testator’s death; not so with contracts, which are less easily avoided for unsoundness of mind. Testaments are more easily avoided on the ground of unsoundness of mind than contracts. Auberfc vs. Aubert, 6 An. 104.
    A mortgage made by a notoriously insane person, and who was at the time known by the mortgagee to be imbecile, is null and void, although the mortgagor was not interdicted at the date of the mortgage. Pecel vs. Guinault, 32 An. 94.
    Ohronic insanity is presumed to continue. State vs. Briyea, 5 Ala. 244; 11 Am. and Eng. Ency. of Law, No. 11, 160.
    The burden of proof is upon the one alleging a lucid interval where by common report the vendor was supposed to be insane. Rogers vs. Walker, 6 Pa. Stat. 371.
    It should be borne in mind, that when continuous insanity is proved, the burden of proving a lucid interval, during which the instrument is alleged to have been executed, is on the party setting up the instrument.
    It is otherwise, however, when the prior insanity alleged was spasmodic and parenthetical, or consisted of delirium tremens. 18 111. 282; Menkins vs. Lightner; Ackey vs. Stephens, 8 Ind.4ll; State vs. Wellington, 58 Maine, 658.

      Dinkelspiel & Hart, Attorneys for Henry Schipman, Testamentary Executor and Appellant:
    Sanity or soundness of mind being the natural condition of mind, insanity is never presumed, but must be affirmatively and contradictorily established. 32 An. 1058.
    The presumption is always in favor of the act; insanity is never presumed. Chandler vs. Barrett, 21 An. 60.
    If a testament presents a series of wise and judicious dispositions, the onus is upon the heirs who attack it to prove unsoundness of mind at the date of its execution. 21 An. 60.
    When the will was made by the testator himself, unaided by others, and its provisions and expressions are sage and judicious, containing nothing sounding to folly, “ it will be assumed, even in case of a person habitually insane, that it was made in a lucid interval; and the burden of proof will be upon those who attack it to show insanity at the moment when it was made. Kings-bury vs.' Whitaker, 32 An. 1057.
    The test of the law upon this subject is whether, at the moment of making the will, the testator was of sufficiently sound mind to fully understand the nature of the testamentary act and appre - ciate its effects. Kingsbury vs. Whitaker, 32 An. 1057.
    Suicide committed by the testator soon after making his will is not conclusive evidence of his insanity. 7 Pickering, 94.
    The law draws no inference against the sanity of a person from the mere fact of suicide. Duffeld vs. Robeson, 2 Harring, 375.
    The opinions of medical men are received upon questions of professional skill, but they should state the facts on which such exceptions are based, and the opinions themselves are not conclusive, but must be weighed as other evidence. Chandler vs. Barrett, 21 An. 58.
   The opinion of the court was delivered by

Watkins, J.

The legal and presumptive heirs of the deceased •resist the probate of her last will on the ground that she was insane at the time of its execution and incapable of making a legal and valid testament.

The introduction of evidence took a wide range, and at the trial there was judgment in favor of opponents, annulling the will, as having been made by an insane person; and it decreed that, “by reason of her insanity,” the testatrix died intestate.

The testamentary executor propounded the will for probate, and had an inventory taken, but the probate of the will was resisted by the attorney for absent heirs, who had, theretofore, been appointed at the suggestion of the public administrator, who had undertaken the administration of the succession as a vacant estate.

The theory of opponents seems to be that the testatrix was afflicted with that species of insanity known in medical jurisprudence as melancholia, the effect of which was to'render her incapable of transacting the business affairs of every-day life, and consequently of making a testamentary disposition; and the fact of her having committed suicide shortly subsequent to the execution of the will is referred to and relied upon by opponents as confirmatory proof of her previous insanity. And it is asserted in the brief, as well as in the oral argument of appellant’s counsel — without denial from the other side — that the judge below assigned the fact of her suicide as being a weighty if not a conclusive proof of her previous want of capacity to make a will.

Oounsel for the appellees make reference to the proceedings which were inaugurated for the interdiction of the deceased shortly previous to the making of her will as a circumstance corroborating her state of confirmed insanity at that time.

To these three facts — or incidents, rather, in the life of the unfortunate young woman — all of the testimony on either side seems to have been directed, other evidence being merely corroborative.

Arranging these three events in the order of their occurrence, we find from the record that the interdiction suit was filed on the 16th of August, 1892, the will was executed on the 18th of November, 1892, and the suicide occurred on or about the 3d of January, 1893.

As it is evident that the test of the sanity of the testatrix at the time of making her will is of the greatest importance — in fact, is the crucial question in the case — the terms of the will and the circumstances surrounding its execution must be examined at the out-start, this court having decided that the test of the law is whether, at the moment of making a will, the testator was of sufficiently sound mind to fully understand the nature of the testamentary act, and appreciate its effects. Kingsbury vs. Whitaker, 32 An. 1055.

(a) An examination of the will discloses that it was executed in the presence of F. D. Charbonnet, a notary public, and four witnesses, two of whom were practising lawyers.

It appears from the testimony that on the 18th of November, 1892, during the business hours of the day, the deceased appeared at the notary’s office pursuant to a previous agreement to that effect, and that at the time and place agreed upon said notary received her last will and testament, in the presence and hearing of four witnesses, as dictated to him by said testatrix.

A fair synopsis of the testament is as follows, viz.: That the testatrix bequeathed to one of the legatees an improved city lot; to another, a sum of money that was to her credit in a designated homestead association, and a lot of household furniture, etc.; to1 another, certain shares of stock in the Merchants’ Mutual Insurance Company; to another, certain other shares of stock in the same company; to another, certain other shares of stock in the same company; to another, certain other shares of stock in the same company; to another, the family tomb in the Vincent de Paul Cemetery ; and to another, the vault in the Odd Fellows’ Rest.

It was concluded by appointing an executor without bond, denominating him “her good friend.”

The circumstances under which the testament was executed are detailed by the notary and subscribing witnesses.

The notary states that the will was made at his office, during the business hours of the day, and in the immediate presence and hearing of the four witnesses who subscribed their names to the act.

That same was executed by him in pursuance of a previous agreement with the testatrix.

That previous to the execution of the will the deceased had called at his residence to see him, and learning of his absence she left with his wife a message for him to the effect that she desired to see him about making a will. That, accordingly, he visited her, and they had a conversation upon the subject and agreed upon the price.

“She wanted,” so the witness states, “the-will to be made at her house. I told her what I would charge. She hesitated, and jewed me down. * * * She asked me if I could not do it any cheaper, (naming) a price; and I told her if she wanted it at that price to come to my office, and she came a day or two afterward.”

This witness further states that when the deceased came to his office she stated that It was for the purpose of making her will, and the will “ was dictated to (him) by Miss Bey’s own lips; ” that “ she appeared to be in a condition such as any ordinary person would that would come to make a will.” That when completed the will was read to her in the presence and hearing of the witnesses, and she seemed to properly understand its provisions and signed it in his presence and in that of the subscribing witnesses. That, after its completion, she handed him the exact amount of the fee agreed on between them some days previously, without any discussion, or suggestion from any one.

During the course of the notary’s examination, the following occurred with relation to his visit to the residence of the testatrix, viz.:

“ Q,. But you afterward went to her house? ”

“A. Yes.”

“ Q,. Did she seem to thoroughly understand the object of your visit? ”

“A. I asked her if she sent for me, and she said ‘yes.’ ”

“ Q,. Did she tell you that she wanted a will made? ”

“A. Yes.”

And with reference to her visit to his office he said:

“ Q,. If there had been the slightest doubt;.in your mind as to her sanity would you have made the will? ”

“ A. No, sir; I would not.”

“ Q,. You have known this lady, how long? ”

“ A. I have known her a long time. I lived in the neighborhood for some time.”

In speaking of the deceased as she appeared on the occasion of his visit to her, and on that of her visit to his office, he says she was well dressed and made a nice appearance.

Again he says, in speaking of what transpired at the time the will was executed, the following occurred, viz:

“ Q. Did she have any hesitation in declaring her intentions to make a will before you? ”

“A. None at all.” ,

“Did any one help her or aid-her in making the disposition? ”

“A. No; I would not have written what I did if anybody had.”

* * * Ns * * *

“Did Miss Bey have any paper or memorandum from which she read when dictating the will? ”

“ A. I never saw any.”

^ ■ * * * * :{« #

“ Q,. When yon read (the will) aloud to her and to the witnesses, did she have any paper before her to (enable her) to follow the reading?”

“ A; I never noticed any.”

The testimony of this witness is entirely supported and confirmed throughout by that of the four subscribing witnesses — they being interrogated and cross-interrogated at length.

The testament, dictated as it was by the testatrix, bears internal evidences of judgment, forethought and careful preparation, as well as accurate knowledge of her property, and the means she possessed at the time of its confection, as well as perfect acquaintance and familiarity with the different persons who are mentioned as legatees. Not only so, but it evidences a sentiment of affectionate interest in, and concern for, the persons she considered her special friends; and she seems to have apportioned her bounty relatively to their nearness to her. And in the dispositions of her will, taken as a whole, she seems to’have exercised reasonable care for the mutual interests of all, without making any unreasonable or unusual bequests to any.

The only thing preferred against it is that the testatrix instituted friends instead of collateral relations as her heirs. But, in the light of the law, she had a recognized right to thus dispose of her property ; and her collateral relations resided abroad and were unknown to her — no intimacy, or even acquaintance, seeming to have ever existed between them during her lifetime.,

Certainly, this testament possesses no internal evidence of the insanity of the testatrix at the date of its execution; and the circumstances detailed by the notary and subscribing witnesses negative that idea.

With regard to the interdiction proceedings that were instituted in August previous to the making of the will in November, nothing need be said, beyond the fact that they were but the culmination of a sentiment that prevailed in the community in which she lived during some months previous, to the effect that she was insane; and the further fact that they were discontinued, voluntarily, ten days before the will was made by the parties who inaugurated them— without the assignment of any reason or excuse.

Of themselves they can not furnish any evidence of insanity, as they did not result in a judgment of interdiction.

The person in whose name the interdiction suit was brought states that he had known the deceased for a long time, and that during her father’s lifetime she was “ a very sensible, fine young lady.”

He says “ she was of good, sound mind before (he) saw her at Mrs. Roper’s.”

His statement is that her father died in February or March, 1891, and soon afterward she removed to the house of Dr. Keitz, on an invitation of the latter, carrying all of her furniture, clothing and effects.

Another witness states that the deceased was removed from the residence of Dr. Keitz to her own on the 2nd of June, 1892 — more than two months previous to the institution of the interdiction suit; and inasmuch as most of the evidence appertaining to her insanity relates to the period of time she resided in Dr. Keitz’ house, it is well to look into the circumstances of her arrival at and her departure from his house — a period of something more than one year.

The witness last referred to states that she had known the deceased about seven years previous to her death, and very intimately. That the deceased and her father lived in a tenement adjoining the one which witness and her husband occupied — there being only a partition wall between them. That during the seven years of their acquaintance, the greatest intimacy existed between the two families. That she was present when the testatrix’ father died, and she describes the death scene and surroundings graphically. That the deceased remained alone in her father’s house about three weeks, when she moved to the house of Dr. Keitz to live. That, in speaking with witness on the subject, she said: “Well, Dr. Keitz says for me to break up housekeeping and go to his house, and I will fall into grand society.” That witness replied: “ All right, Lizzie. Just as you wish.” That the deceased responded: “Well, I am going to try it; it may be better and it may be worse.”

Up to this date there is no suggestion of her insanity — the first intimation of it coming from Dr. Keitz in May, after her instalment in his house in March — though it remained undisclosed until the rumor had become flagrant in the neighborhood.

About six months later she stated to Mrs. Roper that she wished she had broken her neck before she went to Dr. Keitz’ house— making many serious complaints, and, amongst others, that she had been drugged by the doctor, and affirming “ that she had not felt well since Dr. Keitz drugged her with those pellets.”

This lady, Mrs. Roper, states that the first she heard of Miss Bey’s alleged insanity was through Mrs. Heitzman, in the spring of 1892. That, about that time, Miss Lizzie Bey sent for her to come to see her, and she went; but that she first met Dr. Keitz, who stated that Miss Bey was “going from bad to worse — was losing her mind.” That on afterward meeting Miss Bey, she exclaimed: “Oh, Mrs. Roper, Mrs. Roper — I should have broken my neck the day I first put my foot in this house. * * * I have been taking those pellets; I have been taking too much of those-morphine pellets.”

Soon after this occurrence, the rumor of Miss Bey’s insanity was publicly discussed in the vicinity of Dr. Keitz’ residence, and it created quite a sensation among the people of her acquaintance. Many persons visited Dr. Keitz’ house, for the purpose of seeing the insane girl — without protest or objection on the part of any member of Dr. Keitz’ family. On the contrary, these visits were apparently encouraged by them.

A day or two after the occurrence above related, Dr. Keitz called Dr. Castellanos to see Miss Bey professionally, and he held a short interview with her — in the presence of a number of persons who seemed to have been attracted there through curiosity — and afterward gave it as his opinion that she was suffering from melancholia.

The day following this interview, Mrs. Roper carried Miss Bey to her house to live — said removal being made at the instance of Dr. Keitz’ wife.

On the occasion of Miss Bey’s removal from the house of Dr. Keitz, he stated to Mrs. Roper that “ if anything happens to her,” that she must let him know — qualifying the observation by the remark that she might die, or that she 'might have to be strapped down.

All of this occurred in Miss Bey’s presence.

Dr. Keitz, as a witness, states that he had been the family physician of Miss Bey’s father, and had known her familiarly for several years prior to her coming to his house to live, but that the first symptoms of insanity developed themselves in May, 1891 — two months after her coming into his house to live. He speaks of having only seen her once after she was removed to Mrs. Roper’s, and that was in October, 1892. In speaking of her capacity to make a will he says: The disease may have abated, but I do not think she was ever after of sound mind.”

Notwithstanding the fact that Miss Bey was removed from his house on the 2d of June, 1892, and he had not seen her afterward until October, Dr. Keitz admits that he had first suggested her interdiction, and that the suit was filed at his request in August.

Though Dr. Seeman had seen Miss Bey professionally after her removal to Mrs. Roper’s, and testified at the commencement of the trial of the interdiction suit that she “ had been subject to fits of melancholia'” for six months previous, yet it is a fact that the interdiction suit was discontinued at his suggestion, mainly, ten days prior to the making of the will and subsequent to the delivery of his testimony therein.

But it does not appear that Dr. Seeman ever made a careful examination of Miss Bey with a view to making a test of her sanity, and hence the conclusion is that his opinion was based upon casual observation.

Dr. Szabary was called and interrogated by opponents as a medical expert on matters of insanity, and he testifies that he visited Miss Bey professionally during the time she was at Mrs. Roper’s house, and he states that her disease was “ nervous prostration.”

He states that he visited her twice, and [< found no other sickness except emaciation and prostration.”

These two' visits were made on June 4 and 8, 1892, respectively— that is, immediately after her removal to the residence of Mrs. Roper on the 2d of June.

The doctor states that he questioned her critically as to her condition, and that she answered him simply and satisfactorily — giving no evidences of insanity.

The following interrogations and answers will best discover the true situation, viz.:

“ Q. During that entire conversation was there anything which she said that would lead you as a medical man of standing and reputation to think that she was out of her mind? ”

A. No, sir.”

“ Q. Then, on the other hand, speaking affirmatively as a medical man, was there or was there not sufficient evidence that she was an intelligent person?”

“A. Yes.”

“ Q. A person of good common sense? ”

“A. Yes.”

“ Q,. She spoke to you lucidly and plainly? ”

“A. She answered all my questions.”

“ Q. And answered them sensibly? ”

“A. Yes.”

H* H< H* H« H* H: H<

“ Q,. Did she have the appearance that would indicate, in the slightest degree, that her mind was disordered or disarranged? ”

“A. None whatever.”

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Q. Are you prepared to say, doctor, that you made an examination of her mental condition and that you are prepared to testify as to its condition at that time?”

“A.' Yes.”

“Q. Asan expert?”

“ A. Yes; as the physician in charge of the Insane Asylum, years' ago, I can tell you something about it.”

❖ He H* * * He H«

“ Q. If there had been, in your judgment, the slightest indication tending toward insanity in this woman, would you or not have noticed it? ”

“A. I would.”

“ Q. Would it not have come directly under the investigation you were then making? ”

“A. Yes.”

Q. Did you notice anything of the kind? ”

“A. There was nothing to be noticed tending to show that she was insane.”

“Q,. From her looks, demeanor and general conduct, was she or not, in your opinion as an expert, capable of attending to her business and attending to the ordinary affairs of life? ”

“A. She was.”

It is a noteworthy fact that this doctor was first called to see Miss Bey the day after she had been removed to Mrs. Roper’s, and that Dr. Castellanos was called to see her the day previous to her departure from Dr. Keitz’ residence; and while their statements are diametrically opposed to each other in respect to the lady’s mental condition, on those two occasions, we are of opinion that the difference is mainly attributable to the radical change in her situation and surroundings, occasioned by her removal from Dr. Keitz’ to Mrs. Roper’s house.

Under the circumstances detailed, we are disposed to attach greater importance to the testimony of Dr. Szabary than to that of either of the other medical experts — owing to his special fitness to testify in reference to insanity, and to his having made a more careful examination of the testatrix, and under more favorable conditions.

Outside of the isolated expressions of opinion by Dr. Seeman —we do not include that of Dr. Keitz — none of the opponents’ leading witnesses testified to facts or circumstances which occurred subsequent to Dr. Szabafy’s examination of Miss Bey; though all of the executor’s witnesses devote almost exclusive attention to such subsequent facts and circumstances. These witnesses state that they had known the deceased for ten or twenty years, and they concur in the opinion that she was not insane, while admitting that she did evince some idiosyncrasies while she resided at Dr. Keitz’ house. All of them join in the statement that she was generally right-minded and sensible while she lived with Mrs. Roper, and was at all times capable of attending to her own affairs; and it is in proof that she did attend to the payment of her taxes, the collection of her rents and the management of her investments. And it is also in proof that on the day the interdiction suit was fixed for trial she was present at the wedding ceremony of Mrs. Roper’s son, and participated in the wedding feast. Even Dr. Keitz admitted that Miss Bey had given him promissory notes in liquidation of her board while at his house.

A careful examination of the evidence, embracing the dates above given, has satisfied us that Miss Bey was at the moment of making her will, of sufficiently sound mind to fully understand the nature of the testamentary act and appreciate its effect; whether the will was made during the existence of a lucid interval, or by a person of absolutely sane mind, it is comparatively unimportant to inquire.

The theory of the medical experts favoring the insanity of the testatrix is that she was afflicted with melancholia, which is in its nature incurable, and not susceptible of lucid intervals.

Such is the opinion of authors on medical jurisprudence, and it was likewise a precept of Justinian, which has been recognized in the jurisprudence of . this court. Aubert vs. Aubert, 6 An. 104.

But, it is our opinion — accepting this theory — that the evidence does not make a case against the testatrix of melancholia; but, conceding for the argument, that the evidence tends in that direction, the clear and indisputable proof of the will having been made at a time when the testatrix was perfectly rational and apparently sane, contradicts it, and renders it an unacceptable theory, or proves her sanity altogether.

Our code recognizes the validity of a will made by an insane person during the existence of a lucid interval. R. C. C. 1788, No. 9.

The rule in reference to the power and strength of mind necessary to make a will is well stated in Chandler vs. Ohandler, 21 An. 58, thus: " So far as the latter is concerned ” — the amount of intellect required in a testator — " a will may well be made by any mind which has the soundness and strength necessary to endure the conflict involved in the making of a bargain. It would be unreasonable to require that a testator should have more mental vigor and a more lucid memory than a person who makes a contract.”

The court states the French jurisprudence to be the same as our own, or rather, that our jurisprudence has followed the treatises of the French commentators — the rule being that if the testament present a series of wise and judicious dispositions, it is for the heirs who attack it to prove the unsoundness of mind at the date of the testament; if, on the contrary, it contains dispositions such as would cause insanity to be presumed, it is for the legatee to prove the sanity of the testator, as against the terms of the testament. Coin Delisle, Don. and Test., p. 82.

The legal presumption is always in favor of the sanity of the testator. Droit Civil, Vol. 3, p. 44; Marcadé, Vol. 3, p. 403; Duranton, Vol. 8, p. 167.

The presumption of sanity does not cease because the testator has experienced some transitory intellectual derangement at a time anterior to the testament. Troplong, Don. and Test., Vol. 2, p. 56.

The English jurisprudence is the same. Chambers vs. The Queen’s Proctor, 2 Curtiss, 415; Ray’s Medical Jurisprudence, 272; 1 Jarneau on Wills, p. 72; Fullick vs. Allison, 3 Hazzard, 527; Halley vs. Webster, 21 Maine, 461; Clark vs. Fisher, 1 Paige, 174; Johnson vs. Van Dusen, 5 Johnson, 144.

In the instant case the circumstances that are recited and relied upon as indicating the mental unsoundness of the testatrix are not nearly so strong or so convincing as are those recited in the Chandler case; while those surrounding the testatrix at the time of making the will are very much the same.

The opinion in the Chandler case is thus concluded: “ If the acts of insanity are rare, and occur at periods distant from each other, and from the date of the testament, the testament if not destitute of good sense, and betraying no folly on its face, will sustain itself (and) be presumed to have been the offspring of a healthy volition and a lucid memory.”

The will under consideration fulfils all of those requisites completely. The proven acts of folly occurred some months previous to the execution of the will. The will is sensible throughout, and was by the testatrix dictated to the notary, without any memorandum or suggestion from any one, and betrays no folly on its face.

The extrinsic evidence of the insanity of Bowditch, on which the court decided the case of Kingsbury vs. Whitaker, 32 An. 1057, was, in our opinion, much stronger than it is in this case against Miss Bey, and yet the judgment annulling the will of Bowditch was reversed, notwithstanding three of the most distinguished physicians of the city of New Orleans testified that the testator was insane, and the Boston physician testified in the same tenor, and Bowditch had been regularly interdicted by a judgment of court and he was incarcerated in the asylum.

The court said:

When physicians tell us that Bowditch must have been insane on the 24th of June, 1876 (the date on which the will was executed), we turn to the will, written entirely by himself as shown by the testimony of two witnesses of unimpeached character and veracity who saw and conversed with him on that day and at that moment, to whom he spoke very rationally of his will, we must conclude that the physicians were mistaken,” etc.

The will of Miss Bey contains more convincing proof of her sanity, and the notary and four subscribing witnesses testify, most circumstantially, to its dictation by her in a manner clearly indicative of her sanity.

In the Kingsbury case the rule of interpretation, as formulated from the consensus of opinion on the subject, is thus stated:

“The real question is, whether the brain, or other physical organ, whatever it may be, which is the medium through which the action of the mind is manifested, is so diseased or impaired as to make it an untrustworthy vehicle for the conveyance of the true wish, or will of the testator, unbiased by any delusion whieh may be the result of disease. The law fixes the time for the application of this test, at the moment when the will is made, and expressly recognizes the capacity of persons, subject at times even to complete dementia, to make a will in lucid intervals. When the will is established to have been made by the testator himself, unaided by others, and when its provisions and expressions are sage and judicious, ‘containing nothing sounding to folly,’ these facts establish a presumption, even in the ease of a person habitually insane, that it was made during the existence of a lucid interval, and imposes on those who attack the will the burden of proving insanity at the moment when it was made.”

This rule is more accurately stated than the one formulated in the Chandler ease, and we prefer- to follow it; but the will of Miss Bey sustains all the requirements of this rule, as well as of the former— for, in our view, her will is good and valid, whether it is interpreted by intrinsie or extrinsic evidence.

But, if we go further and look into the evidence surrounding the suicide of the testatrix, it is impossible to conclude that — even if she were confessedly insane at the time — it evidenced her previous insanity at the time of making her will.

The following is the full text of the letter that was found on the person of the deceased after her death, viz.:

“ New Orleans, Jan. 8, 1898.

“Dear Friends — I wish to inform you that I am tired of living so concluded to take my life. Dr. Keitz and Dr. Castellanos said that I was insane and going from bad to worst, and that I would not live longer than two or three days after they took me out of his house to Mrs. Roper’s, they would have to strap me down; it is going on to eight months and have not been strapped yet, and am no more insane than he is.

“ When dead I ask of Dr. Seeman, the coroner, to examine my brain and let the public know what he said about me. I am not sick, and not well; I do not know what ails me; he must have drugged or got some one to harm me, for it is not natural what I have; I can not live any longer, for I am in misery and can not help myself. I have my will made some months ago to my friends with the exeeption of ten shares of stock of the Mutual Ins. Co., to pay my funeral expenses, by my adopted brother Henry Sahipman, who is my testator, if there is any left to keep it and give Margaret fifty dollars. It is hard for me to take my own life, but; I hope God and my friends will forgive me, for I could not live longer, there is not another person in this city that is like I am, the party who did that to me I hope will have no luck and follow me soon. When my body is found let Mrs. Roper be notified, and let Mr. Dupresses, the undertaker, bury me. Mrs. Roper’s address is 675 North Rampart street.

“ Yours truly,

“ Elizabeth Bey.”

This letter evidences care and thought, and it corresponds throughout with the whole pitiful story that is detailed by other witnesses. It evinces an exact memory of former transactions, especially the occurrences of the 2d of June, 1892, when, in the presence of a number of persons, she was examined by Dr. Castellanos; and of the 3d of June, when she was removed to Mrs. Roper's house. Its reference to her will is quite significant, indeed, and the exactness of her recollection as to the reservation of certain shares of insurance stock for the purpose of defraying the expenses of her funeral is even more remarkable for its tenacity.

Instead of this letter, dated on January 3, 1893, proving her insanity, it furnishes additional evidence of the sanity of the deceased.

Dr. Ray makes the following observations on the question of the suicide of a testator, as affecting the validity of his will, on the theory that suicide raised a presumption of insanity:

“At present,” says that author, “ the fact of suicide has no other importance than what it derives from its connection with the mental derangement which must be supposed to have given rise to it. Courts would very justly i’efuse to consider it as sufficient proof of insanity, in the absence of other proofs, because it might have been the act of a rational mind, and because, too, if it really had sprung from insanity, the delusion had been so circumscribed as not to have prevented the judgment in regard to testamentary dispositions and other civil acts.

“ The principle adopted in the ecclesiastical courts is, that in cases of doubtful sanity — amongst which those of suicide must always be ranged — the validity of the individual’s testament must be determined solely by the character of the instrument itself. (Our italics.)

“ Here is a difficulty that courts will never be very anxious to encounter, and that is to determine the exact connection of suicide with insanity — in point of time — supposing the latter to be admitted. When this act is the only proof we have of mental derangement we are left without the means of ascertaining where this connection began to exist or to disappear; and, consequently nothing can be more difficult than to decide within what time, either before or after the suicidal attempt, the individual can be pronounced insane. It not uncommonly happens that a person kills himself, or makes the attempt, shortly after making his will, when the question requires judicial decision whether or not the insanity which led to the fatal act existed at the time of making the will. The practice has usually been, if there were no other evidence of unsound mind, either in his conduct, in his conversation, or in the testamentary dispositions themselves, not to impeach the testator’s sanity.

“ In a certain case, it was said by Sir John Nicholl that when there was no evidence of insanity at the time of giving instructions for a will, the commission of suicide three days afterward did not invalidate the will by raising an inference of previous derangement.” Burrows vs. Burrows, 1 Haggard, 109; Ray’s Med. Jurisprudence of Insanity, Sec. 460.

“ Ohief Justice Parker also held that suicide committed fifteen days after the date of the person’s will was not sufficient in the absence of other evidence to prove him insane and thus, invalidate the will on account of the difficulty just mentioned.” Brooks vs. Barrett, 7 Pickering (Mass.), 94.

“ Similar views prevailed in Duffield vs. Robson, 2 Harrington, 583, and in Chambers vs. Proctor, 2 Curtiss, 415. In both of those cases suicide occurred the next day after the execution of the will; and in the latter, delusions were proved to exist on the three (days) next previous to the will.” Ray’s Medical Jurisprudence of Insanity, p. 448, Sec. 460.

In the Brooks case, the court maintained the principle that “if the evidence be doubtful, the presumption of the law in favor of sanity is to have its effect.”

Dr. Ray lays down the general proposition that “ even when the suicidal act is unquestionably the effect of insanity it does not necessarily follow that a will prepared within a short time of it is invalid ” —that is to say, if the will be reasonable. Ray’s Medical Jurisprudence of Insanity, p. 449, Sec. 461.

“If the will be a rational act, rationally done, a suicidal act, or attempt, ought not to invalidate it, because the presumption is either that the will was made before the mind became impaired, or that the derangement was of a kind that did not prevent the judgment from using ordinary discretion in the final disposition of property.” Id., p. 450, Sec. 462.

Other authorities and text-writers might be cited with advantage, but we prefer to rest our conclusions on this branch of the case upon the opinion of Dr. Ray, on account of his exceptionally concise and correct conclusions of law, as well as on account of this court having in other cases cited his works with approval.

On this branch of the subject, as on the one previously argued, our conclusion is clear to the effect that, even conceding, for the argument, that Miss Bey was insane on the 3d of January, 1893, when she penned the letter that was afterward found on her person, after her death by suicide, there is nothing to show any causal connection between the act of suicide and the circumstances surrounding the execution of her last will.

Altogether, oar conclusion is that on the 18th day of November, 1892, when Elizabeth Bey executed her will, she was of sufficiently sound mind to fully understand the nature of the testamentary act she executed, and appreciated its effects; and that, consequently, her will is good and valid.

Hence the judgment appealed from must be annulled and reversed .

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled and reversed; and it is now ordered and decreed that the will of Elizabeth Bey, which was executed on the ■18th of November, 1892, be declared legal and valid, and entitled to probate and registry. And it is further ordered and decreed that the aforesaid last will and testament of Elizabeth Bey, deceased, be and the same is ordered to be probated, registered and executed; and that opponents pay all costs of both courts.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 11,886.
    Remington Paper Company vs. John W. Watson et al.
    If the propositions of law be as they are stated in the plaintiff’s petition, and the facts are to be treated and considered as they are alleged therein, the defendant’s exception of no cause of action ought not to be maintained — the authority of the appointed receiver who contests the plaintiff’s seizure, both in law and fact, being repudiated and disavowed; and also alleged to have been obtained by collusion, for the purpose of defrauding creditors.
    Ellis, J. PPEAL from the Civil District Court, Parish of Orleans.

      Merrick Merriek for Plaintiff and Appellant:
    A mere ex parte order appointing a receiver to an existing corporation, against which no process is either prayed for or served, and no affidavit, proof or evidence offered, is absolutely null and void. Third persons are not bound by such orders, especially when not complied with. Ober et al. vs. Manufacturing Co., 44 An. 570, 571, 573 and 574; State ex rel. Britton vs. City, 43 An. 832; Martin vs. Blanchin, 16 An. 238; Frazier, Receiver, vs. Wilcox, 4 Rob. 523, 525; 24 An. 348, 399.
    “There can be no greater nullity than a judgment without parties defendants.” Labauve vs. Slack, 31 An. 141, top of page.
    The term “receiver” has no settled or definite meaning in our law, like sheriff, judicial sequestrator, administrator, tutor or the like, or receiver in chancery, where his functions are explained in many volumes. The Louisiana receiver is but an agent of the parties. 2 Rob. 151, 154; 4 Rob. 517; 12 An. 299, top of page.
    It is only to defunct corporations that his duties assimilate a chancery receiver. 44 An. 570.
    No judge has been entrusted with the dangerous power by an ex parte order to- transfer the right of possession or property from an existing corporation to third persons.
    Nor to forfeit the charter of such corporation, nor to screen such property from the pursuit of creditors. The richest corporation would be unsafe with such power in any man’s hand.
    It is the right of every one receiving injury from such illegal proceedings to have them declared null. The State courts are as much bound to redress wrongs to constitutional rights as they are injuries to any other rights. R. O. 0. 2315; 8 Rob. 428; 12 Rob. 20; 42 An. 194; 9 Rob. 191.

      Henry L. Garland, Jr., Attorney for Appellees:
    The issues on appeal will be restricted to those raised in the judgment appealed from.
    Oollateral issues raised or decided in other judgments, from which no appeal is taken, will not be considered. Thus, where an order appointing a receiver is rendered, to which consent is given by the plaintiff in the suit, by the defendant corporation, by the State through the Attorney General, and by a large majority of stockholders, and where no stockholder dissents, and where subsequently a mere creditor, not a stockholder, files an action for damages against the receiver and others to which is tacked on a demand for the rescinding of the order appointing the receiver (from which no appeal is taken), the validity of the order appointing the receiver will not be considered on an appeal taken solely from the judgment dismissing the suit for damages and for nullity of the judgment appointing the receiver. Appellate issues are confined to the judgment appealed. 34 An. 3; 34 An. 1025, 1236; 35 An. 555, 1178; 31 An. 436, 521, 741; 33 An. 1404; 30 An. 1255; 14 An. 49; 41 An. 465, 904; 42 An. 77, 346; 35 An. 318; 17 An. 126, 714.
    An action of nullity of judgment will not lie where such nullity, if it exists, may be declared on appeal. 3 An. 646; 22 An. 371; 14 An. 666; 27 An. 36; 6 An. 799; 9 An. 203; 23 An. 146.
    Where a court of competent jurisdiction appoints a receiver, his acts as such are valid pending his appointment,' and will not subject him personally to an action of damages at the suit of an alleged creditor of the corporation.
    Where a receiver is appointed to a corporation by a court of competent jurisdiction at the suit of a creditor; in which the State and a large majority of the stockholders intervene and pray for the confirmation of such appointment, and where the corporation itself through its president and board of directors consents to such appointment, the order appointing the receiver can not be annulled at the suit of a single dissenting creditor. u

      In proper cases, where a great emergency exists, courts have power to appoint ex parte receivers to corporations whose property is abandoned and in a danger of ruin, unless immediately protected. The ex parte nature of the decree might possibly be complained of by the corporation or stoccholders — but certainly not by a mere creditor. '
    A creditor has no interest to resist the forfeiture of the charter of a corporation or demand that it continue in business. His interest is in its property. Where his suit is not predicated on any allegation of waste, ruin or erroneous charges by reason of the receivership, the judgment dismissing it as disclosing no cause of action will be affirmed.
   The opinion of the court was delivered by

Watkins, J.

This is an action of nullity, accompanied with a demand for damages, which was, upon the exceptions of the defendants, dismissed, because it stated ao cause of action, and from this judgment of dismissal the plaintiff has appealed.

Whether a petition has, or not, stated a cause of action must be ascertained and determined from examination and analysis of the petition itself, and the test is, whether if all the allegations be taken as true — for the purposes of the exception — the petitioner would be entitled to judgment.

The substantial averments of plaintiff’s petition are:

That it — the Remington Paper Company — is a corporation created under the laws of New York, and having a just claim against the Louisiana Printing and Publishing Company, Limited, amounting to three thousand eight hundred and sixty dollars and fifty-five cents, for paper furnished said company, and on such paper as remained on hand; and having a vendor’s lien and privilege thereon, it has a right to sue in the United States Circuit Court and obtain writs of sequestration and attachment against the property and assets of said company.

That, in pursuance of said claim and right, said Remington Paper Company did file suit in the United States Circuit Court, on the 29th of May, 1898, and, under writs of sequestration and - attachment therein issued, caused said property to be sequestered and attached —said property consisting of printing press, safe and other articles of furniture, etc. — and to be taken into custody by the marshal of the United States.

That service of said suit was made on J. D. Hill, president of the defendant company, on the date of the filing thereof, and that, under the Constitution and laws of the United States, petitioner is entitled to prosecute said suit to effect without let or hindrance on the part of any person.

That, “nevertheless, John W. Watson, now made defendant in this suit, in violation of said petitioner’s rights, falsely styling himself a receiver of the said printing and publishing company, and falsely stating that he was in possession of said property attached and sequestered, in virtue of an appointment as such receiver * * * filed on the 30th of May last (1893), in said Circuit Court, a motion to have the said attachment and sequestration set aside; and said motion coming on for trial, the said Circuit Court, without passing on the force of the proceedings (of the Civil District Court) on the 6th day of May, ordered that the marshal restore the property seized in (said) cause, under the writs of attachment and sequestration (to) said John W. Watson, receiver, unless within five days the plaintiff appiies for and ultimately receives authority from the Civil District Court, which appointed Watson, or from the appellate court, to hold same under said writ.”

That the aforesaid order will have the effect of preventing his obtaining a judgment against said defendant, as there is no mode of revising said order until final judgment can be rendered in said cause without occasioning petitioner great loss and injury, say in the sum of three thousand eight hundred and sixty-three dollars and fifty-five cents, and endangering the loss of its said debt of three thousand eight hundred and sixty-three dollars and fifty-five cents, for which amount petitioner alleges the defendant, Watson, liable.

That said Watson was without any legal right to stand in the way of the collection of its just claim against the defendant for the following reasons, viz.:

1. That at the date of its seizure aforesaid he had not given bond, “ nor had he complied with the order of court in the said ex parte proceedings; nor had such proceedings been had as to perfect said order, or to give said Watson any right to control the property of said defendant, or to prevent any suit from being brought, or any court from subjecting the property of said defendant by due course of law to the payment of its debts.”

2. That “ the conduct of said Watson, Frank H. Pope, and those confederating with them, in attempting to screen the property from payment of debts, was collusive and a constructive fraud upon petitioner, and a violation of its rights under the laws and Constitution of the United States.”

3. That “ the said pretended order under which said John W. Watson claims pretended authority, dated 17th of May, 1893, was absolutely null and void as against petitioner, and the creditors of the said Louisiana Printing and Publishing Company, Limited, and conferred no authority on Watson, for the reason that the same was made upon the collusive petition of Frank H. Pope without citation to any one; without oath or affidavit, or any proof, and without any eontestatio litis; and that the said inchoate and pretended order on said Pope’s petition was obtained (on) the same day said Pope’s collusive petition was filed, and in which no citation was prayed for.”

4. That “the officers of the Louisiana Printing and Publishing Company, Limited, were incapable by the law of withdrawing from their offices, so as to delay or hinder the creditors of said corporation from the pursuit of creditors; and the said corporation does not cease to exist until regular proceedings have been taken against the numerous officers and stockholders of said corporation, or otherwise, under its charter.”

5. That “the attempt to bolster up the illegal and ex parte proceedings by so-called interventions on the part of the Attorney General will not cure the nullity of said ex parte proceeding of said Pope and said Watson; and, moreover, said so-called intervention, which contains no affirmative allegations on behalf of the State, but purports to recite Pope’s allegations, is not a mode of proceeding authorized by law, and the State is without right to intrude itself in this manner into controversies of private persons and to demand forfeitures in any other manner than that provided by law; and the Attorney General was without authority to join said Pope in his prayer in said ex parte petition * * and pray that a receiver be appointed; and said ex parte proceeding is null and void as against creditors not parties in pursuit of their rights.”

In conformity to the preceding averments petitioner prayed, amongst other things, “ that said ex parte order purporting to appoint said John W. Watson receiver be declared, as against your petitioner, null and void and of no effect, and that same is ineffectual as a bar to said attachment and sequestration, or other proceedings on the part of petitioners in the said court of the United States; and that said John W. Watson and said Frank H. Pope be condemned in solido, or otherwise to pay your petitioner the sum of three thousand eight hundred and sixty-three dollars and fifty-five cents damages caused by their illegal interference with petitioner’s proceedings” as above recited.

It is not readily perceived on what theory the defendant’s plea of no cause of action rests, or on what theory the judge a quo maintained said exception and dismissed the plaintiff’s suit.

It is evident that this suit has for object the removal of the receiver, so as to leave the course of proceedings in the United States Circuit Court untrammeled and free; and if, in point of law and fact, his petition be taken as true, he is undoubtedly entitled to judgment.

The opinion of the district judge — as is usually the case with his opinions — is forcibly and carefully stated, though it bears with more direct reference upon the merits of the cause than upon the exception.

We can not anticipate what will be the opinion of this court on the various abstruse and difficult propositions of law propounded in plaintiff’s petition; nor can we possibly divine what will be the character, or the degree of sufficiency of the evidence the plaintiff may bring to the support of its representations of fact; but if the law be as the plaintiff asserts it to be, and the facts are to be treated and considered as stated, it is difficult to resist the conclusion that the plaintiff is entitled to judgment.

The judgment appealed from must be reversed. It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that the exception of no cause of action be overruled, and the cause be reinstated and remanded to the lower court for trial, at the cost of defendants and appellees, in both courts — quoad said exceptions.


author: Breaux, J.

text:
    No. 11,508.
    State of Louisiana vs. Lucius Barker.
    Two of the jurors drawn for the term deposed on their voir dire that they would not convict on circumstantial evidence. They were properly ordered to stand aside.

      The trial judge committed no error in excluding jurors from the panel who are unwilling to convict on legal evidence.
    The trial judge ruled that the evidence did not prove that the deceased made a hostile demonstration against the accused.
    The required foundation not having been laid, proof of communicated threats by the deceased against the accused was not admissible to rebut malice and reduce the grade of the offence.
    itfcNeely, 34 An. 1022, and the Cooper case, 32 An. 1085, cited as in point, were dependent upon particular facts and circumstances not involved in this case.
    Questions of law previously passed upon were reiterated in the motion for a new trial.
    The questions of law were decided.
    Those purely of facts are not reviewable on appeal.
    APPEAL from the Eleventh Judicial District Court, Parish of St. Landry. Per mult, J.

      M. J. Cunningham, Attorney General, E. B. Dubuisson, District Attorney, for the State, Appellee:
    Where there is no proof of any overt act or hostile demonstration of the deceased upon the slayer at the time of the killing, evidence of prior threats is irrelevant and inadmissible. 45 An. 846; 44' An. 950; 43 An. 840; 42 An. 753; 39 An. 817; 38 An, 22; 37 An. 443, 489, 644, 782, 896; 33 An. 1087; 30 An. 340; 6 An. 422; Bishop’s Orim. Procedure, 1st Ed., Vol. 2, Sec. 617; Bishop’s Orim. Procedure, 3d Ed., Vol. 2, Sees. 619 and 620; Wharton’s Orim. Evidence, 8th Ed., Secs. 68 and 757.
    The overruling of a motion for a new trial will not be considered on appeal when the grounds of the motion are that the verdict is contrary to the law and the evidence, or when no. question of law is presented for determination.
    In passing sentence in cases not capital, it is not a necessary formality to ask the prisoner if he has anything to say why sentence should not be passed upon him. Bishop’s Orim. Proceedings, 3d Ed., Vol. 1, Sec. 1293; Wharton’s Orim. Pleadings and Practice, 9th Ed., See. 906; State vs. Shields, 33 An. 991; State vs. Atkins, 33 An. 1253; State vs. Taylor, 27 An. 393; State vs. Bradley, 30„An. 326.
    Even in cases where it is necessary its omission does not entail a new trial, but simply remands it for proper sentence. Idem.

    A juror who positively asserts that he will not convict on circumstantial evidence is not competent.

      Should the judge err in maintaining the challenge of a juror for cause by the prosecution, this of itself will not afford defendant who has not exhausted his peremptory challenges a legal ground of complaint. State vs Lewis, 41 An. 590; State vs. Oreach, 38 An. 480, and authorities quoted.

      John N. Ogden and R. Lee Garland Attorneys for Defendant and Appellant:
    This court, in the case of the State vs. McNeely, 34 An. 1022, has laid down as a principle of law, that where the State has shown particular actions and declarations of the accused for the purpose of establishing malice, the accused will be permitted to prove the dangerous character of the deceased in connection with previous threats made by him against the accused, to et rebut the presumption of malice and to mitigate the offence charged.”
    In 32 An. 1084, State vs. Cooper, it is held that “ had the evidence (prior threats) been offered by the defendant to rebut the presumption of malice sought to be established by the State, by proof of the previous difficulty, inasmuch as such proof had been made by the State for that avowed purpose, it would certainly have been competent for the defendant to have shown the particulars of that difficulty, with a view of showing his justification and his freedom from malice.”
    Defendant complains that in these proceedings, wherein the indictment was for a capital offence, he, the prisoner, when sentenced, was not asked whether he had anything to say why the'sentence should not be pronounced. 33 An. 1255.
   The opinion of the court was delivered by

Breaux, J.

The accused was indicted for murder.

From a sentence of the court based on a verdict of a jury convicting him of the crime charged, without capital punishment, he has taken this appeal.

He complains of error in the rulings of the trial judge.

Ordering Two of the Jurors to Stand Aside.

The first bill of exceptions contains the recital that, while empaneling the jury two of the regular jurors were ordered by the court to stand aside, because they stated when examined on their voir dire that they would not convict on circumstantial evidence; “ that almost immediately after they were told to stand aside, and before they had left the court house, the accused through his counsel announced to the court that circumstantial evidence would cut no figure in the case, as accused admitted the killing and pleaded justification, and requested as of right that said two jurors be called back and pronounced competent.”

The following are the grounds of refusal forming part of the bill of exceptions:

“ 1. Because a juror who will not convict on circumstantial evidence in a capital case is incompetent.

“ 2. Because no injury resulted to defendant inconsequence of the juror being ordered to stand aside, his right being one of rejection and not one of selection.

“8. Because the discretion vested in the court in such matters is not reviewable in the absence of injustice.”

The court’s ruling in ordering these jurors to stand aside had something about it of the final.

Large discretion is necessarily entrusted to the trial judge in selecting jurors.

In entering the order discharging the jurors from service on the panel in this case there was no violation of law.

The number to select from was not thereby illegally reduced.

“ It is a settled rule of practice that some prejudice to the appellant, resulting from the rulings of the trial court in organizing the jury, or at least some infringement of statutory provisions relating thereto, must be shown before an appellate court will review the proceedings of the court below.” Thompson and Merriam on Juries, p. 297.

No prejudice to the appellant is shown.

The trial court commits no error in excluding a juror on his voir dire who is unwilling to be governed by the rules of evidence adopted for the proper trial of eases and the maintenance of public justice.

There are very few cases in which all the evidence is purely positive.

There should be a verdict of conviction wherever there is legal evidence establishing the guilt of the accused.

Circumstantial evidence is legal evidence, and a juror subjects himself to a discharge who will not convict on legal evidence.

Overt Act and Communicated Threats.

The second bill of exceptions was taken to the court’s ruling on the following state of facts.

During the progress of the trial a witness testified that at the moment of the difficulty he saw the deceased make a motion as if to-draw a pistol on the accused.

The accused, through counsel, sought to sustain the credibility of his testimony by the evidence of a number of highly reputable witnesses of the neighborhood, who testified that his character for truth and veracity is good.

A co-defendant of the accused and the accused himself testified, that they saw the witness motion as if to draw a pistol.

The accused also sought to sustain his credibility as a witness by evidence of good character for truth testified to by a number of witnesses of standing -in the community.

This evidence was followed by the offer to prove that a short time-before the homicide threats had been made by the deceased against the accused, and that these threats had been communicated to the accused.

The contention on the part of the defence was that the overt act had been proved; that the testimony of communicated threats was. admissible to rebut the presumption of malice charged, and to reduce the grade of homicide.

The trial judge excluded the testimony:

“Because in the opinion of the court it was proved beyond a. reasonable doubt (by a preponderance of evidence) that the deceased made no hostile demonstration or overt act toward the accused at-the moment of the shooting, the evidence showing that the accused fired on the deceased, striking him in the back, whilst deceased was in conflict with the brother of the accused, being on the ground and the deceased holding him down.”

The testimony of the witnesses is not before us. We have, for the purpose of the ruling, the statements forming part of the bills of exceptions. They are direct and positive that there was no overt act by the deceased against the accused. That method of bringing up the proof for review has been followed in a number of cases, and in the absence of testimony showing error on the part of the trial judge it has been repeatedly held that his findings of the facts, in this respect, shall be taken as true. The questions are of fact and law. The point of law can arise for review only after all the facts upon which it is dependent have been submitted for our decision.

Whenever the facts áre incomplete, of the overt act, under well established jurisprudence, we must give weight to the summary or conclusions of the trial judge.

In the case at bar, the accused urges that his testimony, that of a bystander during the difficulty, and of his co-defendant is more than an equivalent to the statement of the trial judge, based on the testimony of a number of witnesses who were also present at the difficulty.

Until a feasible method is devised to bring up for review on appeal all the testimony, that in behalf of the accused to prove, and that of the State to disprove, the overt act, this court must follow the well established precedent.

The principle was stated in the case of the State vs. Harris, 45 An. 842.

In the case of State vs. Christian, 44 An. 954, the doctrine announced previously in a number of cases was reaffirmed “ wherein it is declared that whether or not a proper foundation has been laid for the introduction of evidence of the dangerous character of the deceased is a matter to be decided by the trial court, where ruling in such matters will not be reversed unless manifestly erroneous.”

In State vs. Wilson, 43 An. 841, the same principle is announced.

In State vs. Cosgrove, 42 An. 754, the trial judge stated that “the only overt act proved against deceased at or about the time of the killing consisted in his having shaken his finger. This statement does not disclose any overt act on the part of the deceased as, taken in connection with the prior threats, justified the defendant in believing that the deceased was then and there about to carry the threats into execution, and that his life was in such apparently imminent danger as to justify him in taking his adversary’s.”

To the same effect is State vs. Brooks, 39 An. 821.

In State vs. Spell, 38 An. 22, the following emphatic language is employed: “ We will not do the injury to the district judges of the State of supposing, with counsel for the accused, that any one of them can be found, so devoid of all sense of duty as to secure conviction of an accused by designedly excluding testimony which might be favorable to him. If there be such a judge, his case should be dealt with in other proceeding, for which the Oonstitution has made ample provision. * * * The rule laid down in the Ford ease was not without precedent, and it has been subsequently followed by this court.” Citing State vs. Labuzan, 37 An. 490; State vs. Janvier, 11 An. 644.

The court in all those cases held that the question was within the discretion of the trial judge.

In State vs. Kerwin, 37 An. 784, the court says, when passing upon the point: “ The ruling of the judge was not arbitrary, but was the exercise of a sound legal discretion, based upon a careful review of the whole evidence, and when that is the case we are bound to take his ruling as conclusive.”

In State vs. Jackson, 33 An. 1087, the court confined the consideration of the dangerous character of the deceased as a ground of defence to the facts as stated in the bills of exception.

In passing from this point we desire to state that conclusions and statements will not prevail against testimony in behalf of the defendant showing inconsiderate ruling.

The purport of and extracts from the testimony of the witnesses relied upon as justifying a conclusion or statement should be incorporated by the trial judge in the bill of exceptions.

To Reduce the Grade of the Homicide.

If not admissible to show that the defendant had reason to believe that he was in imminent danger of bodily harm and that a hostile demonstration on the part of the deceased justified him in the killing, the counsel for the defendant argues that it was admissible to rebut the presumption of malice sought to be proved against his client, in order to reduce the grade ©f the homicide.

Having concluded that the testimony was not admissible to justify the killing, as contended, we will consider the next proposition — that relating to reducing the crime charged from murder to manslaughter. As an independent proposition, the accused can not under the law, in order to rebut the presumption of malice and to mitigace the offence charged, be permitted to introduce evidence over a well grounded objection that foundation had not been laid to enable him to prove communicated threats.

The cases to which we are referred are exceptional in this respect.

The State had been permitted to prove actions and declarations of the accused which bad preceded the homicide for the purpose of showing premeditation and malice.

Thus in the cited case of State vs. McNeely, 34 An. 1022: the accused, in the morning, a number of hours prior to the homicide, had shot at the deceased. This by the court was permitted to be proved to establish malice. The facts in this respect bear some similarity to those in State vs. Cooper, 32 An. 1085.

The court expressly states in the McNeely case that the ruling was confined to the facts and circumstances of that case.

The organ of the court in the latter case was the organ of the court in the Spell case, in which the principle was announced that the question of overt act and proof of communicated threats was largely within the jurisdiction of the trial judge, thus emphasizing the fact that the decision in the McNeely case was dependent upon the particular facts and circumstances of that case.

In the ease at bar the record does not disclose that the State sought to prove prior acts or declarations of the accused in order to show malice on his part.

We are strictly confined to a consideration of the facts as stated in the bills of exception signed by the judge. They establish that there was a fight, during which the accused killed the deceased.

It is not shown that any testimony of acts or declarations prior to the difficulty which resulted in the killing was admitted.

To rebut the malice charged under these circumstances, the accused can not be permitted to prove communicated threats from deceased without having first laid the foundation requisite, by proving an overt act of the deceased against the accused.

The general rule upon that subject is established by a number of decisions.

The case at bar falls entirely within the general rule.

Motion for a New Trial.

On the motion for a new trial it is urged that on the preliminary examination the court admitted the accused to bail for the reason that malice had not been shown.

That having, on the preliminary examination, pronounced the offence manslaughter, he should not have refused to admit the evidence which would in all probability have caused the jury to reach the same conclusion.

It is also stated on behalf of the accused, in'the bill of exception overruling the motion for a new trial, that there were irregularities on the trial prejudicial to the accused.

The trial judge incorporates the statement in the bill that the accused was admitted to bail, after preliminary examination, on a different state of facts from that proved on the trial, and that no irregularities came within the knowledge of the court.

The questions of law relate to the admissibility of the testimony to prove communicated threats by the deceased against the accused. They were decided in passing on other bills in this case before reaching the motion for a new trial. The questions of facts presented by his motion for a new trial are not reviewable by this court.

There were other grounds of defence brought up by bills of exception in the record.

Counsel for the accused, in his carefully prepared brief, has not presented any argument in their support. We presume that they were abandoned by the defence. We have, nevertheless, given them consideration, and conclude that they also present no ground to reverse the action of the District Court.

Judgment affirmed.


author: Watkins, J. Breaux, J.

text:
    No. 11,381.
    Board of Health vs. Maginnis Cotton Mills.
    On Motion to Pile Transcript of Appeal Without Deposit foe Costs.
    The Board of Health having failed to show that it comes within the statute “ex emptingthe State from furnishing security for costs in the courts of this State,” a rule taken in its behalf, upon the clerk of this court, requiring him to file a transcript without first furnishing the security or making the cash deposit required by the rules of this court, will be discharged.
    On the Merits.
    The nuisance charged, if it exists at all, is of that character which should be abated.
    A civil action on behalf of the public will lie if the nuisance is public.
    A nuisance per se may be abated which affects the health, and under proper limitations and restrictions a writ of injunetian may be issued.

      The functions of that writ, in behalf of the public, should only be exercised on the broad grounds of preventing irreparable injury, interminable litigation, and the protection of a public right. Their exercise is subject to the same perils and liabilities as an individual, if the thing abated is not in fact a nuisance.
    The plaintiff has alleged a nuisance per se.

    Por the trial of an exception of no cause of action, the facts are necessarily admitted.
    The right to the writ, at this point of the ease, is shown on the face of the papers, and therefore the injunction is reinstated for further proceeding.

      Theard, J. PPEAL from the Civil District Court, Parish of Orleans.
    On Motion to File Transcript op Appeal Without Deposit eor Costs.

      Frank McGloin, Attorney for the Board of Health, for the motion:
    This Honorable Court has time and again declared that the State of Louisiana, as the sovereign, and as matter of privilege, is entitled to litigate in her own courts without payment of costs. Succession of Townsend, 40 An. 66; State vs. Taylor, 84 An. 978; State vs. Taylor, 83 An. 1270.
    The Board of Health is a branch of the State government, having under its care the health of the entire State. Act 1882, No. 92, p. 114, Sec. 4; Revised Statutes 1870, Title Quarantine; Act 1882, No. 82, p. 103, Secs. 5, 6.
    The business which the Board of Health conducts is strictly the business of the State, and it is a branch of the State government purely and simply. If the sovereignty of the State protects it from paying costs in its own courts, this sovereign exemption should apply to its business by whatsoever agency conducted. The State must act through agents.
    On the Merits.

      Frank MoGloin for the Board of Health, Plaintiff and Appellant:
    Issues or outlets through which water flows from the water closets or cesspools of a large factory into the gutters of a city are nuisances per se, public in their character. Parker and Worthington on Public Health and Safety, Secs. 177, 187, note; Wood on Nuisances, Ed. 1893, Sec. 679, p„ 799; lb., pp. 150, 582; Board of Health vs. Casey, 3 N. Y., Supp. 399; 18 N. Y. St. 251; Board of Health vs. Hutchinson, 12 Stew. Eq. 218.

      In this State, the writ of injunction is a statutory remedy; anda legal remedy, as well as equitabie. It will issue at the instance of the city of New Orleans to abate a public nuisance.
    A municipal corporation, charged to preserve the public health within its corporate limits, may enjoin a public nuisance, notwithstanding its police regulations impose a fine upon those establishing such nuisance. Wood on Nuisances, Ed. 1898, Sec. 777, p. 1119; Sec. 748, p. 974; 14 An. 274; 11 M. 620; 36 An. 163.
    The Board of Health of the State of Louisiana has jurisdiction to enact sanitary ordinances for operation within the city of New Orleans, and is authorized to cause the removal of things prejudicial to the public health, and to aid in discharge of this duty it may seek out injunction against persistent public nuisances. Act 14 of 1870, extra session; Act 80 of 1877; Act 92 of 1882.

      Gilmore & Baldwin Attorneys for Defendants and Appellees:
    An injunction will not be granted to restrain an alleged nuisance where there is an adequate remedy by statute. Wood on Nuisances, S. 777, p. 1119.
    The existence of a legal remedy in cases of alleged nuisances will be sufficient ground for withholding an injunction. High on Injunctions, S. 745.
    Where an injunction granted ex parte has been dissolved by the lower court on exceptions to the jurisdiction and of no cause of action, the Supreme Court will not reverse the finding of the court below and grant the injunction where there is adequate remedy provided by municipal ordinance for procedure on abatement of nuisance.
    A municipal ordinance is a statute within the meaning of the word as used in the expression of courts and text writers, “Adequate remedy by statute.”
    On Motion to File Transcript of Appeal Without Deposit for Costs.
   The opinion of the court was delivered by

Watkins, J.

On motion of the counsel for the Board of Health as appellant, a rule was granted upon the clerk of this court to show cause why its appeal should not be filed without making the cash deposit required of other parties litigant, because the Board of Health,.acting in the interest of the State and its people, is entitled to litigate in the courts of this State without the payment of costs.

In answer to the rule the clerk avers that (1) there is no law of this State which exempts the plaintiff in rule from making the deposit required by the rules of this court; (2) nor is there any law of this State which relieves the plaintiff in rule from the payment of clerk’s costs incurred in this court.

Under the law the clerk of this court is entitled to demand and receive fees which are fixed. R. S., Sec. 756.

Under the rules of this court the party applying for the filing of a transcript in a cause in this court must first render to the clerk his bond and security, or make a deposit of twenty dollars. Rule 2. The contention of plaintiff in rule, that the Board of Health being a part of the machinery of the State government, can not, for that reason, be required to pay costs or furnish security for costs, is applicable with equal force to every municipal and parochial corporation in the State — they constituting a part of the machinery of the State government also.

The law exempts the State from furnishing security for costs, but the exemption must be strictly construed — the language of the statute being that “ no court of this State, nor officer thereof, shall demand of the State, or of the Attorney General, any security for costs, or advance costs,” etc. Sec. 1, Act 65 of 1884.

Counsel for appellant has referred us to the following cases as supporting this theory of plaintiff in rule, viz.: State vs. Taylor, 34 An. 978; Succession of Townsend, 40 An. 66; State vs. Taylor, 33 An. 1270.

In the first ease cited the court said: “ By special legislation all costs incurred in criminal prosecutions are to be paid by the respective parishes in which the offence charged may have been committed. R. S., See. 1042. .

“ Hence, it would be a more than idle ceremony to exact of the State security for costs which are not chargeable to her. 1 It is well settled in American jurisprudence that the sovereign never pays costs.’ This doctrine, which is essential to our system of government, was recently recognized by us in the case of the State vs. Succession of Taylor. 33 An. 1271.”

The same principle was recognized in Succession of Townsend, 40 An. 66, and followed in State ex rel. Attorney General vs. Lazarus, 40 An. 856.

It is the duty of the plaintiff in rule to make out a clear ease of ■exemption from the rule of law applicable to other litigants, but this it has not done, and its rule must be discharged.

It is therefore ordered, adjudged and decreed that the plaintiff’s rule be discharged at its costs.

On the Merits.

The opinion of the court was delivered by

Breaux, J.

This was an application for a writ of injunction directed to the defendant.

The petition of the Board of Health, in substance, sets out that the Maginnis Cotton Mills maintains issues or outlets from the privies and cesspools of its large factory into the public gutters of the city.

That through these outlets from the privies, cesspools, or water closets upon its property to the public gutters there flows fecal and other offensive, dangerous and injurious matter to the peril and detriment of public health and to the inconvenience of the public; that these issues or outlets are a nuisance, to abate which an injunction should issue.

Petitioner alleges that it has ordered and enjoined the defendant to close these outlets. That the defendant refuses to comply and has ignored the notices served.

The plaintiff avers that it is specially charged with the protection and preservation of public health and the removal of causes exposing the health of the inhabitants.

That the city of New Orleans has prohibited the use of any issue -dr other communication leading offensive matter from privies, water closets or cesspools into the public streets or gutters.

The first of these ordinances in date, copied in the transcript, •ordains that privies shall be so constructed as not to have any outlet •on any street, way, yard or place, and that any person violating the section shall be liable to a fine not to exceed twenty dollars and the ■court shall order the privy to be reconstructed in accordance with the specifications contained in the ordinance; and in case1 of noncompliance, the party at fault shall be subject to another penalty not exceeding twenty dollars; and it is also ordained that the Board of Health may have the work done required by the ordinance and recover the expense from the person not complying in any court of competent jurisdiction.

This ordinance was amended, and the specifications for building privies were changed and enlarged so that the system shall apply to factories and other establishments in which a large number of workmen are employed.

■ The penalties fixed in the original ordinance was affirmed in the amending ordinances.

The plaintiff alleges that it, the Board of Health, also in addition and for reasons similar to those that moved the city of New Orleans, prohibited the establishment or use of the issues or communications of which it complains.

To the petition of the plaintiff exceptions of no cause of action and to the jurisdiction of the court, ratione materiee, were filed.

The exception of no cause of action only is argued in this court.

This exception was maintained by the judge of the District Oourt.

The nuisance being denouncec by ordinances of the city of New •Orleans and a penalty provided against those who commit the nuisance, it is contended that a writ of injunction should not issue, and that the authority seeking to abate the nuisance must find procedure in the statute itself.

The Board of Health, by. Act 14 of 1870, was invested by the State with the power of removal of “ any substance, matter or thing which they may deem detrimental to health.”

It was also authorized to adopt sanitary ordinances and to fix penalties for their enforcement.

By Act 80 of 1877, the board was given power, on the concurrence of the City Oouncil, to provide for, protect and preserve, by adequate means, the health and salubrity of the city of New Orleans, and, with the consent of the council, incur reasonable expenses to that end.

The act contains the following section:

“ This act shall not be construed so as to deprive the Board of Health of any powers and authority it has under existing laws.”

Section 6 of the act provides that the “ board shall, in any suit or proceeding in which it may be a party, obtain all writs, appeals or other process without being compelled to furnish bond.”

The plaintiff and the City Council co-operated in adopting the first ordinance, No. 4077.

The amended city ordinances were passed by the City Council only.

The plaintiff seeks to abate an alleged nuisance by injunction, and not by the collection of a fine or the removal of the cause of nuisance by the commissioner of streets, in accordance with authority conferred for such removal.

The authority to enforce the ordinance by imposing a fine, the board contends, is too limited to prove of any service; and it is urged that the first fine, which may be much less than the limit, is imposable only once for building a privy in violation of specifications, and the second fine, also imposable only once, may be imposed for failing to obey the order to reconstruct the work and make it comply with the ordinance.

It is also argued, in behalf of plaintiff, that the jurisdiction of the Recorder’s Court does not include jurisdiction over all remedies needful to enforce these ordinances and to secure prohibition from their violation that will prove effective.

The defendant argues, through counsel, that there is adequate remedy by statute, and that an injunction should not “ be granted to restrain an alleged nuisance.”

In weighing the different grounds of attack and defence, it suggests itself that the nuisance is no longer an “alleged nuisance.”

In the present condition of the ease for the purpose of the trial of the issues on the exception of the defendant the nuisance is necessarily admitted.

The fact of the nuisance is clear.

The right of the plaintiff is well defined and the law on which it depends not doubtful. They have an established right to remove the nuisance.

No judgment at law would add to the admitted violation.

The right to abatement being made manifest by the allegations admitted as true, it only remains for us to determine whether further remedy shall be prosecuted before the Recorder’s Court or the District Court.

Each of these courts has jurisdiction. over certain questions involved. These are questions exclusively within the jurisdiction of the District Court.

The fact that there is a partial or even complete remedy in another tribunal in different proceedings will not alone prevent injunctive relief, but it is good reason to confine that relief to cases of a very plain character, with great prudence, where there is a continuous nuisance and to prevent its threatened repetition. Even then every step possible and legal should be taken in order not to inflict wrongful damage and loss.

The writ of injunction is of the highest character and should be granted to municipal authority on the broad ground jonly of preventing irreparable injury, interminable litigation, a multiplicity of actions and the protection of rights.”

It should be hedged by limitations and restrictions, and if needful its enforcement suspended until it is ascertained that a public right is violated.

If the authorities abate a nuisance under the authority of an ordinance of the city, they are subject to the same perils and liabilities as an individual if the thing abated is not in fact a nuisance.” Wood on Nuisances, p. 976, 3d Ed.

The nuisance is clearly of that character, if it exists at all, which should be abated, if needful, by process of injunction.

We would not feel justified in curtailing the court’s authority in cases of the character of the one at bar, unless the grounds were quite clear.

To plaintiff is given the power and imposed the duty o(¿preserving and promoting public health and to that end it is invested with authority to sue for the removal of public nuisances.

It may be said of the case at bar as was said of other similar cases: “ There are many eases, of which this would seem to be one, where the remedy by injunction would be much more efficacious than by enforcing the penalties of an ordinance.” Wood on Nuisances, 3d Ed., p. 974, note 1.

High on Injunctions, 3d Ed., p. 568, approvingly quotes thé following :

“ So if plaintiff’s right is clear and the injury is manifest and of a constantly recurring nature, the relief may be granted without requiring the fact of injury to be determined by an action at law.”

It is announced with clearness and emphasis in Wood on Nuisances, p. 1120 (note)—

“ That an injunction is a proper remedy to stay mischief resulting from a public nuisance.”

In City of New Orleans vs. S. Lambert, 14 An. 247, the nuisance was not as great as the nuisance complained of in the case at bar.

The court held that the facts set forth in the petition authorized an injunction.

We do not wish to be understood as favoring hasty action in the matter of injunction applied for without bond in the interest of the public.

But where health is exposed, if there is a nuisance it should be abated, .even if injunction must be resorted to for its abatement.

It is therefore ordered, adjudged and decreed that the judgment appealed from be reversed, the injunction reinstated and the cause remanded to the District Court for further proceeding according to law, and that appellee pay the cost of this appeal.