author: Breaux, J. Monroe, J.-

text:
    No. 13,175.
    Rosetta Gravel Paving and Improvement Co. vs. Mary Louise Kennedy, Wife of Charles Genella; in re, Mary Louise Kennedy, Applying for Certiorari or Writ of Review to the Court of Appeals, Parish of Orleans, State of Louisiana.
    Syllabus.
    1st. Writ or Certiorari or Review. — The Court of Appeals held that the case came to it on appeal under the Constitution of 3879, and could not be reviewed by it save on the issues presented by a statement of facts, bill of exceptions or assignment of errors. The Supreme Court held that the question not reviewed by that court, had not been noted in the manner required by statute No. 102 of 3877; and, further, that it would not, on an applies tion for certiorari or review, disturb the court’s decision, in which it held properly, that a bill of exception should have been taken reserving the questions of law of which that court had jurisdiction.
    2nd. The Ruling of the District Court. — ®r industria the court reviewed the action of the District Court excluding evidence offered by defendant and concluded that it afforded no ground for issuing the writ of certiorari and review.
    Srd. Prescription. — The prescription invoked is prescription favorable to the city, and not one for the benefit of abutting proprietors. The plea was properly overruled.

      O. B. Sansum and Samuel Sansum for Petitioner.

      E. Evariste Moise, G. P. Socola, and John Wagner, for Respondents.
    Submitted on briefs May 6, 1899.
    Opinion handed down May 29, 1899.
    Rehearing refused (reasons assigned) June 26, 1899.
   On application for rehearing by Monroe, J.

The opinion of the court was delivered by

Breaux, J.

The defendant, relatrix here, denies that she is indebted to plaintiff in the sum of three hundred and thirty-five and 17-100 dollars, and petitions this court to decree that the judgment of the Court of Appeals and the judgment and decree of the Civil District Court, rendered against her, in favor of the plaintiff, are erroneous and not valid in law.

The gravamen of relator’s complaint is that plaintiff has not complied with its contract, to pave with Rosetta .Concrete Gravel a certain street, or part of a street, mentioned in her petition.

Plaintiff declared on this contract. The defendant answered, setting up her grounds of defense.

In order to sustain its claim before the District Court, the plaintiff, it seems, introduced in evidence copies of ordinances under which the contract was made, and a certificate of the engineer and Commissioner of Public Works. This evidence was admitted by the court in February, 1898.

The defendant, for the purpose of proving her defense, offered to prove certain facts to which it appears objection was madebyplaintiff’s counsel, upon the ground that the answer of the defendant, relatrlx here, did not set forth any fact, which would justify the court in maintaining the defense.

This objection was taken under advisement by the judge of the District Court, and he decided, on the 12th day of April, 1898, (as shown by a note of the short-hand reporter, not dated, and not filed), ■ that the evidence offered by this defendant was not admissible, and sustained plaintiff’s objection.

The minute entries of the court show that the case came to trial, and after bearing counsel, the matter was submitted as to the questions of law.

On the 13th day of Hay, 1898, the case was heard on the testimony which had been admitted, and was finally decided in the District Court on the 31st day of that month.

The record shows that no evidence was offered after the 12th of April. We infer that the court, after that time, only passed on questions which were considered by it questions of fact, from which, under the Constitution of 1879 — the amount involved being less than five hundred dollars — there was no appeal.

The court avers in answer to the rule nisi, that on the 12th of April, 1898, when the -judge sustained -the objection of the plaintiff to the defendant’s proving the averments of her answer, no bill of separate exception was reserved and that none was taken, and that no bill of exception appears of record in the case.

Belatrix, on the other hand, insists, that on the day just stated, when tlie court excluded her testimony, her counsel excepted to the ruling of the court, and that the exception was noted in lieu of a formal bill of exception.

We only have an added note by the short-hand reporter to a document headed “note of evidence taken in open court on the 13th day of February, 1896.”

The note added reads:

“The court having on the 12th day of April, 1898, maintained the objection of counsel for plaintiff and excluded the evidence proposed to be introduced by defendant’s counsel, defendant excepts to the said ruling of the court and has this note taken in lieu of a formal bill of exception.”

This is signed by the shorthand reporter.

The contention on the part of plaintiff, here, is that that was not a compliance with the law; that no question 'of law was thereby brought up on appeal.

The Court of Appeals found that the suit was on a paving contract for an amount less than five hundred dollars; that it was tried before the adoption of the present Constitution, and could not' he reviewed by it, except on the issues of law.

1st. The statement is correct; that no bill of exception was reserved, and no attempt was made to bring up any point of law before the court, under the rules which prevailed prior to the Constitution of 1898.

The statute regarding bill of exception, requires, “when one reserves . a question in relation to evidence, that the reporter or clerk shall take it down as presented, in the presence of-the opposing counsel, and that the. judge shall cause 'his ruling, to be likewise taken down .at ;the time, and in that case it ryill be as if a bill had been duly taken:” Statue 102 of 1877.

. , The Court .of Appeals held: “The record does not contain a statement of facts or any bill of exception, but presents the following which is an assignment of errors.”

That court after setting forth each point and numbering it in its order, states: “The most casual inspection of headings (1 to 9, inclusive), will show that no complaints refer to the exclusion of evidence — a matter to be presented by bills of exception- onIy¡”

It does not appear that the note Written at the bottom of the bill was a, part of the bill of exceptions; it was written some time after .the instrument named “a note of evidence,” had been written.

In reviewing the question pressed upon our attention, we concluded that we should not disturb the action of the Court .of Appeals, as it does not appear that the statute authorizing a note to be made of a question “in lieu of a bill of exception,” had been complied with.

The Court of Appeals decided that the record does not contain a statement of facts, or any bill of exceptions, but presents the following, which is styled an assignment of errors, which it overruled.

That “under repeated rulings in cases of this nature,” it assumed “that the judgment was rendered on sufficient evidence, properly re- “ eeived.”

This was a question that court had full authority to decide. We have not found that; as relates to the facts or the law, there was error •which would warrant us in setting aside the proceedings.

The statute 102, A. D. 1877, was not followed, and, in addition, the court held that the rule which was in force under the Constitution of 1879, was not observed. Ón -these grounds we must decline to annul the judgment. The Court of Appeals had authority to determino that the issues raised in argument had not been presented in.the pleadings and had not been properly brought up by a bill of exception.

2nd. Although we might have rested our decision upon the ground before stated, we took up for review the action of the District Court, ■ of which defendant complains, and we stopped our examination of the merits, persuaded that there would not be grounds enough to Justify ■ our action, if we were'to set aside the proceedings and'order another -trial.'

While it may be that a mandamus could lie to complete the'record, (if it be incomplete),pwe do not think that the writ of review, under Article 101 of the Constitution of 1898, was intended to act'so as to ■compel a court to consider a document as .presenting a question of law .for its determination, when, the court holds that the document cannot "be considered by it, because its rules, or' the statute relating to evidence, have not been observed.

We must decline to make the writ peremptory, for we do not think that anything occurred in the proceedings of courts' below differing from the regular course of law; and, further, if there was error,' .another'writ than the One applied for here lies to correct the error.

This brings us to the question of prescription, the next question involved.

3rd. Relator avers that the contract is dated July, 1894, and that it •was completed ninety days thereafter.

The suit was commenced May 8th, 1896.

Ry statute 91 of A. D. 1858, “all action for the enforcement of •any contract entered into with the corporation of the city of New Orleans for work or labor, is prescribed by twelve months,” the prescription here pleaded.

Construing this statute the Court of Appeals decided that the prescription was one which the city alone could pleád. This view appears to -us sustained by the words of the law. Moreover the title'of the statute would be entirely defective and misleading if that interpretation be incorrect, for it refers exclusively to the city of New Orleans. There is no expression in the' statute which can give rise to the inference that the legislature intended the statutes' to be more far reaching than the title, which limits its extent to the city of New Orleans. ., •

For, the reasons assigned, the rule nisi which issued in this case is, recalled and cancelled; and. the.application of relator for a writ of certiorari or review is rejected at relator’s costs.

On Application pop. Rehearing.

Monroe, J.-

Relator alleges that in May, 1896, the plaintiff brought suit against her for $335.37, on a paving contract, which it had entered into, in July, 1894, with the city of New Orleans; that, under this contract, the paving was to have been done according to certain specifications, and that the certificates were to have been issued for every two blocks completed; that a certificate was issued September 6th, 1894, which included her property, but covered only one block; that she refused to pay, on the grounds that the method prescribed for arriving at the pro rata had not been observed, and that plaintiff then sued on said contract and certificate. She further alleges that she answered by general denial, and specific averments, that all the holes in the sub-grade had not been cleaned out and filled, and that cypress planks were not laid according to the contract, or used in curbing, and that the contract had not, in other respects, been executed. She afterwards set up that plaintiff had no right to stand in judgment, and that there was no competition, and she' plead the prescription of one year. The suit came up for trial in the District Court February 18th, 1898, when relator, as defendant, objected to the admission in evidence of the certificate. The case was continued to February 24th, when she offered to prove that holes in the sub-grade were not cleaned out, and that the contract had not, in other respects, been executed, bo which offers plaintiff objected, and. the court took the objection under advisement, and on April 12th, sustained the objection, and to this ruling she alleges that she, then and there, excepted, and that said exception was noted in lieu of a bill.

She further alleges that, on May 18th, 1898, the case came on again for trial, and was submitted, and that, on May 31st, there was judgment overruling her plea of presciption and in favor of the plaintiff on the merits, from which she appealed. That the case was tried in the Court of Appeal, March 26, 1899,- and the judgment appealed from1 affirmed, and rehearing thereafter refused.

She claims that there was error in excluding the testimony offered in her behalf, but she alleges that her most important complaint is, that the contract sued on was ultra vires, in that it authorizes pro rata on two squares, when the law contemplates pro rata upon the whole work, and that the certificate was unlawful because predicated on one square. She claims that, as the ease was decided on May 31st, 1898r the jurisdiction of the Court of Appeal was determined by Article 98 ■of the Constitution of 1898, which gives that court jurisdiction as to facts and law.

It appears from the record that the case was partially tried and •evidence offered and objected to on February 18,1898, but that there was no ruling on the objections. On February 24, 1898, it came up for hearing on plaintiffs objections to defendant's evidence, and was taken under advisement. On April 12th, 1898, there was judgment maintaining the objections. The case came on again for trial, upon the merits, May 18th, 1898, and was taken under advisement, and .judgment was rendered May 31st, 1898.

Qn appeal, the defendant presented an assignment of error with thirteen specifications, to-wit:

Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, assign as error that the court a qua refused to admit certain evidence offered on behalf of the defendant.

The Court of Appeal held that the point should have been brought up by bills of exception. Counsel for the defendant does not contro•vert this, but claims that a bill of exception was reserved, and, in support of this contention, refers to a note made by the stenographer at the end of his notes of evidence, which contain the headings:

“Note of evidence taken in open court on the 18th day of Febru- “ ary, 1898, before the lion. N. H. Rightor, Judge. Present: E. E. ■“Moise, for plaintiff; O. B. Sansum and Samuel Sansum, for defend- “ ant,” and * * * “note of evidence continued in open court on “the 24th day of February, 1898, before the Lion. N. H. Rightor, “Judge. Present all attorneys of record.”

The note relied on appears to have been added, in’ writing, after the notes, to which the foregoing headings refer, had been typewritten and filed in the court as part of the record, and read as follows:

“The court having, on the twelfth day of April, 1898, maintained “ the objection of counsel for the plaintiff, and excluded the evidence “ proposed to be introduced by defendant, counsel for defendant ex- ■“ cepts to said ruling of the court and has this note taken in lieu of a “formal bill of exceptions.”

Whether this note was made at the time that the judge a quo made the ruling excepted to, does not appear. It certainly was not made when the document upon which it appears, was filed, February •24, 1898, as the note refers to a ruling made April 12th, 1898. The 'document upon which it appears had, therefore, become a record of the court, which no onej without authority from the court, at all events, had the right to add to or subtract from. Nor is there • anything to show1 that the exception was reserved when the ruling was made. And the probability is that it was not, because the point had been taken under advisement February 24th, 1898, and was not decided until April 12th, 1898. Under' these circumstances, it was not reserved in conformity to Act 102 of 1877, which contemplates the reservation 'of bills, 'in that form, only in eases where the exception is taken at the time of the ruling and in presence of the parties.

The specifications Nos. 10, 11 and 12, in assignment of error, relate, as the Court of Appeal says, to matters of fact, and the specification Nos. 13, to the question of prescription.

The case had been fully tried and submitted before the adoption of the Constitution of 1898. To give to the Court of Appeal jurisdiction under such circumstances, upon questions of fact, would be to give to the Constitution of 1898 a retroactive effect, and be calculated to work great hardship, since, at the time of the trial, that court had no such jurisdicion, and hence, the case Was not tried with reference thereto. The Court of Appeal was, therefore, right in holding that its jurisdiction was governed by the constitution of 1879.

The 13th specification relates to the prescription set up. The law relied upon is entitled: “An act relativé to prescription of certain

“ actions against the city of New Orleans.” The context relates only to the city of New Orleans and'its application is properly so confined. , •>

There appears, then, to be no error in the judgment of the Court of Appeal upon any of the issues raised in or presented to, it.

The question of the defendant’s personal liability was not raised, and therefore can not be reviewed, nor can the Supreme Court deal with it as an original question upon a writ of review.

The rehearing is, therefore, refused.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 13,037.
    Lewis W. Lyons vs. Daniel S. Carroll et al.
    Syllabus.
    While it is true that plaintiff was innocent of the charge brought, yet, as it was not satisfactorily made to appear that the defendants instigated the prosecution and had plaintiff imprisoned, they were not liable in damages.

      ON APPEAL from the Civil District Court for the Parish of Orleans. Bilis, J.

      Gurley & Mellen for Plaintiff and Appellant.

      Ambrose Smith for Defendants and Appellees.
    Submitted on briefs May 19, 1899.
    Opinion handed down June 12, 1899.
    Rehearing refused June 26, 1899.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sues Carroll, Kerwin, and DeRance, the two latter police officers, in damages in the amount of $5040, for illegal and malicious arrest, imprisonment, and for slanderous - charges; he avers, the defendants brought against him.

He avers further that a diamond stud was stolen from one of the defendants, Daniel S. Carroll, at the “Little Diamond Saloon,’.’ .in New Orleans, between midnight and sunrise on July 9th, 1895.

He alleges that he was not present when the crime was committed; that Carroll was, at the time, with one Howard alias “Kid Murphy,”, and one McGrath, all of whom had been drinking together; that Carroll reported the theft to a number of police officers .and detectives, including Sergeant Walsh, Ferdinand DeRance and Richard Kerwin, and gave them the names of those whom he suspected, of'having committed the theft, and that he maliciously included his. (Lyons’) name as one of the offenders, although he knew that Lyons was not connected with the crime, and was not present when the stud was stolen.

He alleges further that he, (plaintiff), in company with Kerwin and DeRance, met Carroll in the evening- on the day the theft was committed, and Kerwin asked , Carroll: “Is this” (pointing- to the petitioner), ’“one .of the parties?” meaning by the question to ask if plaintiff was one of the parties present when Carroll’s stud was stolen, to which Carrolí, understanding- the- meaning of the question, answered: “Yes”; that petitioner then turned to Carroll and said: “Carroll, you wbll know’that I had nothing' to do with the stealing-* of your stud, and that I was'not with you when the theft was committed,” to which Carroll replied, “Never mind, I will fix you,” and walked away. Thereupon Kerwin announced to him that he was under arrest, and that notwithstanding his protests, he was placed under arrest, taken to the Third Precinct station and imprisoned* That during the night and part of the next day, he greatly suffered ■owing to the filth and stench in the cell, also that his feelings were greatly humiliated.

Plaintiff avers that he is the father of a family and a law abiding citizen, and that his name and reputation have always been good.

The defendants filed exceptions. The exception of Kerwin and De-Rance was sustained and that of Carroll was overruled. Carroll filed an answer.

A number of witnesses were heard on the trial.

The judge of the District Court held, in substance, that defendant, Carroll, did not accuse plaintiff of the theft; and therefore rejected plaintiff’s demands.

1st. Of course, no man has a right to institute proceedings against another unless he has good cause to believe that the facts and the law will sustain the action. In this case wo soon discovered, that which is made manifest by the testimony, that there was no probable, cause justifying an action. The plaintiff was entirely innocent and absolutely blameless. The officers found out in some way that he had been drinking with the defendant, on the night of the theft, but prior to the loss of the stud, and therefore, concluded properly to investigate the matter. After some inquiry had been made, they determined to arrest plaintiff. In this there was an error committed. But we have not found that it was traced to defendant, Carroll, with sufficient certainty, to warrant a judgment in damages.

We have seen that the charge set forth in the petition is that defendant, Carroll, had reported the theft to a number of police officers, naming them. Ho was, it appears, well acquainted with Sergeant Walsh. This sergeant swore positively that Carroll did not report Lyons to him, as alleged. The same is true of DeRanee and Kerwin, as well as Long; all three members of the police.

But it is contended that the affidavit made against Lyons was made at the instance of Carroll.

In our examination of the case we turned to the affidavit itself, and found that in the body of it the name of Lyons does not appear, although it was doubtless covered by the words “et al”; still the fact that the name of Lyons was not mentioned in the body of the affidavit is a little out of the ordinary, we think.

The affidavit was made on information received, for the reason that Carroll was still under the influence of liquor at the time, and was not in a fit condition to make the affidavit, we are informed. It bears the date of July 10th, 1895.

The fact that Carroll was not in a fit condition.to make the affidavit is not without some significance in the matter.

It appears that Carroll, who had been imprisoned, appeared before the Recorder, and after hearing his evidence, the Recorder, as is usual, directed the police officer present to make the affidavit, as Carroll was too drunk to make it himself.

There is some confusion4 and uncertainty in regard to the date of the affidavit.

The judge of the District Court, who heard and saw the witnesses, in his opinion, upon which he bases his judgment, says that the defendant (Carroll’s) testimony contradicts Simone, (a police officer), not by mere denial, but by statement of facts and positive assertion, in manner and style, that seemed to him convincing. “One fact that is most convincing to my mind that defendant did not act or incite Mr. Simone to accuse plaintiff is that it is shown that on the morning of the 9th, the day before Simone made the affidavit, defendant was ashamed of the notoriety into which the robbery of his diamond stud was bringing him, and that he had given up all idea of making efforts to recover it. The newspapers had made publications of accounts of the robbery, and it was becoming a sore subject to him. Captain Beck’s testimony shows this, and defendant corroborates him, so that it seems to be certain that on the 10th of July, defendant was not in a prosecuting frame of mind. He was, at that time, the General Auditor of the Telephone Company, with his office in the Telephone building, a position of trust and responsibility. He was a man’ of family and of means, and considering his mortification and shame, for what had happened to.him on the night of the robbery, it may be accepted as the truth, when he declares that his purpose was, to let the matter of the robbery pass, and to pocket his loss in silence.

“That officer Simone intended to speak falsely, I do not believe. He was testifying in the summer of 1896 as to the occurrences of July, 1895. His duties as a police officer bring him in contact with so many criminal arrests, prosecutions, etc., that he may well he excused if his memory has failed him. He, evidently got' July 10th. mixed up with July 18th,. and on July 9th or July 10th,-it is an impossibility, under all- the evidence, that the defendant could have singled out Lyons, the plaintiff, and requested Simone to make the affidavit.”

We have considered this case as well as we could, and have not found grounds upon which to base a judgment for damages. It was certainly unfortunate for the plaintiff; but this is not enough in. itself to find damages in the absence of positive proof of a wrong committed or a wrong intended by defendant.

Plaintiff had been with McGrath and with defendant up to a short time before the theft was committed. The officers hearing of this, sought McGrath. Having failed to find him, they found Lyons, and while talking with him, they chanced to meet Carroll. During the few words that passed, it is said that Carroll did not attempt at that time to exonerate Lyons. Carroll explained this by saying, as a witness, that he did not know upon what information Lyons had been arrested; that he was a stranger to Lyons, and for that reason answered as he did, which was in effect that hé would'see him the next day before the court.

In this we do,not discover malice or the intention to have Lyons arrested,, as alleged in plaintiff’s petition.

On the .18th- of July, 1895, when Carroll testified before the Recorder,, he said to that officer that Lyons was not present. His evidence exonerated and acquitted the plaintiff of the charge of larceny, which had been preferred without his authority, he swears.

Considering, further, that the arrest of plaintiff was, in our view,the arrest by the detectives, and not at the instances of the defendant, Carroll, we must conclude as did the judge of the District Court, that plaintiff has no grounds upon which he can be allowed damages. Defendant was scarcely in a condition to be responsible for affidavits made and other steps taken in the matter.

For'reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from bo affirmed.


author: NiopoLLS, O. J. Breaux, J.

text:
    No. 13,083.
    Marx Weil vs. M. Schwartz
    Syllabus.
    On Motion to Dismiss.
    When by order of court a suspensive appeal has been allowed on appellant’s fur-’ nishing bond in an amount fixed by the judge, and bond has been furnished' accordingly, the appeal will not be dismissed because it cannot be sustained as a suspensive appeal.
    Though not good as a suspensive appeal, it would still stand as a devolutive appeal. 1 Rob., 324; 3rd Rob., 63 ; 9th Rob., 185; 5th Ann., 360; 2nd Ann., 462; 755 ; 10th Ann., 316; 11th Ann., 687; Succession of Armat, 20th Ann., 320; Succession of Keller, 39th Ann., 223 ; Succession of Bey, 49th Ann., 219 ; Michenor vs. Reinach, 49th Ann., 360; Bank of Minden vs. Lake Bisteneau Lumber Co., 47th Ann., 1432; Colomb & Gondolfo vs. McQuaid, 36th-Ann., 371; Montan & Brothers vs. Whitley, 12th Ann., 175 ; Chaffe vs. Carroll, 34th Ann., 122.
    On the Merits.
    1st. Collateral Attacks. — The tribunal had jurisdiction over the subject matter and over the persons, and the proceedings were not void. Held : The title was not subject to collateral attack against a Tbona fide purchaser.
    2nd. Third Persons in Good Faith.- — The purchaser at a, sale made under the order of the court, is not bound to look beyond the decree recognizing its necessity.
    3rd. No Conflicting Interest. — The mother, survivor in community and tutrix of her minor children, in matter of the sale, had a common interest and not a conflicting interest; properly she represented the children.
    4th. Payment of a Debt. — The interests of the survivor in community and of the tutrix in the payment of a debt resting on the latter’s property, are not adverse interests.
    5th. Under Tutor.- — The court presumes that the under tutor who was present and signed the inventory, had resigned on account of his interest being opposed to the minors’, as another person appears as undertutor in subsequent proceedings.
    ON APPEAL from the Civil District Court for the Parish of Orleans, Righior, J.

      E. Evariste Moise (and E. B. Kruttschnitt of counsel) for Mark' Weil, Plaintiff in Rule and Appellee.

      Lazarus & Luce for E. B. Benjamin, Defendant in Rule and Appellant.

      Dinhelspiel é Ilart for the Civil Sheriff of the Parish of Orleans, Appellee.
    Submitted on motion to dismiss, March 20, 1899.
    Opinion on motion to dismiss, April 3, 1899.
    Argued and submitted on merits May 20, 1899.
    Opinion handed down May 29, 1899.
    Rehearing refused June 27th, 1899.
   On the merits by Breaux, J.

On the Motion to Dismiss.

The opinion of the court on the motion to dismiss was delivered by

NiopoLLS, O. J.

The plaintiff foreclosed a mortgage note. The .property was sold and adjudicated to E. Y. Benjamin. Benjamin failing to comply with the adjudication, the property was ordered to be resold at his expense.

I-Ie, thereupon sued out an injunction, which being tried in the District Court, resulted in a judgment in favor of Weil and against Benjamin, condemning him to comply with the adjudication, and to ac•cept the deed tendered him by the sheriff, and to pay into the latter’3 hands the amount of the adjudication, to-wit: the sum of five thousand three hundred and forty-five dollars.

Benjamin applied for and obtained an order for-a suspensive appeal. The court fixed the amount of the bond at two hundred and fifty dollars, and it was furnished accordingly.

Appellee moved to dismiss the appeal on the ground that tho .amount of the bond is not sufficient to justify a suspensive appeal.

That proposition may be true, but it does not lead up to the dismissal of the appeal. “When by order of court a suspensive appeal has been allowed on appellant’s furnishing bond in an amount fixed by the court and bond has been furnished accordingly, it will not be dismissed because it cannot be maintained. Though not good as a susjicnsive appeal, it stands good as a devolutive appeal.”

Succession of Bey, 47th Ann., 219; Succession of Armat, 20th Ann., 340; Succession of Keller, 39th Ann., 579; Duperron vs. Van Wickle, 1st Rob., 324; Tipton vs. Crow, 3rd Rob., 63; Jones vs. Frellsen, 9th Rob., 185; Surget vs. Stanton, 10th Ann., 318; Rachel vs. Rachel, XIth, Ann., 687; Michener vs. Reinach, 49th Ann., 360.

The motion to dismiss is hereby denied and the appeal maintained.

■Monroe, J., takes no part, as he was not a member of the court, when the case was submitted.

On the Merits.

Breaux, J.

This was a suit to compel the adjudicatee to comply with the terms of the adjudication and take title.

The following we take as a correct statement of the facts relating to the issues upon which we have determined to pass.

Marx Weil sued out executory process against Moses Schwartz.. The property mortgaged was seized and adjudicated to E. Y. Benjamin for the sum of five thousand, nine hundred and forty-five dollars. Title was tendered to the adjudicatee, who did not accept it, whereupon the property was again advertised to be sold, but the sale was arrested by an injunction filed by Benjamin, the adjudicatee, against the sale, on the ground that the proceeding was unauthorized; that he was entitled to a good and valid title, and he further alleged that there were serious defects in the title tendered.

In his petition for an injunction Benjamin averred, as relates to the title, that it was defective, because the property was adjudicated to Moses Schwartz, the seized debtor, under a decree rendered in a proceeding for a partition which had not been preceded by a family meeting to fix the terms of sale.

It appears that the parties interested did not wish to hold under the first title to which we have just referred, and that, in consequence, a family meeting was held (under Section 2667 of the Revised Statutes, relating to the sale of minor’s property), for the purpose of offering another and second title to the vendee.

It was on the petition of Mrs. Brown, tutrix, setting up that all the proceedings taken for the partition and sale were illegal and irregular, for the reason that the undertutor was not qualified; that a family meeting was convoked for the purpose of selling the property to affect a partition and to fix the terms of sale of the property.

She alleged in her petition that the adjudicatee was willing to accept the title upon its being properly ratified by a family meeting and the court.

The proper order for a family meeting was granted, and among the members of the family meeting appointed, was Augustus B. Wheeler, a creditor. The family meeting .was held and ratified, and the sale made in-the first partition proceedings.

The family meeting, in addition, recommended that the tutrix of the minors should be authorized, agreeably to the provisions of Article 2GGI of the Revised Statutes, to sell the undivided half interest of the minors at private sale, and to that end appraised the property .as required, and.recommended that it -be sold at .private sale on the same terms and conditions- that the property had been previously adjudicated.

Against the title under private sale, Benjamin urged that the family meeting that authorized it, was not properly constituted,for the reason that one of - the members of the family meeting, Augustus B. Wheeler, was incompetent, as he was a mortgage creditor of the •owners of the property, made apparent as such, by the mortgage certificate annexed to the deed under which Moses Schwartz acquired.

Benjamin also interposed the objection that the tutrix who represented the minors .in tlie family meeting and partition and sale proceedings was incompetent, as she had conflicting- interests, and that the minors should have been represented by an undertutor..

The validity or invalidity of Benjamin’s title is -the important issue. • .

A number of other issues were raised. • We passed them without comment and gave our attentive consideration to the questions raised regarding the title. It is, in our view, -valid and legal. A decision so decreeing, we take it, settles the whole..controversy.

1st. The appointment of Wheeler, a'mortgage creditor of the owners of the property, as a member of the family meeting, gives rise to one of the questions for decision.

The attack here is not directly made -against the judgment of the court approving the recommendations of the family meeting. It. is not a direct attack upon a judgment- between the parties to it. It may, we think, be considered as a collateral attack. If there was error in appointing this creditor as a member of the family meeting, it was the judicial error of the judge by whom the appointment was made in the proceedings long anterior to.those under which the adjudication here was made. The law authorizes an appeal contradictorily from such judgment or an action of nullity, but it does aot .authorize a collateral attack as here made.

2nd. We are not inclined to rest.our conclusion, as regards this point, on the grounds just stated, although it does seem to us that the informality invoked by the attacking party was one anterior to the .judgment, which could not be inquired into collaterally.

We are quite convinced that third persons, innocent parties, acquiring rights to property at public sales are entitled to some protection. They are not bound to inquire into the validity and regularity of every judgment rendered in prior proceedings. These proceedings were conducted contradictorily with all parties concerned in a court of competent .jurisdiction.

In a well considered case, this court said: “It is the well settled .jurisprudence of this court that the purchaser at a sale made under an order of the Probate Court, which is a judicial one, is not bound to look beyond the decree recognizing its necessity.”

Again — “The purchaser at a judicial sale of property of the succession is not bound to look further back than the order of court ordering the sale.” Citing a number of decisions. Webb et al. vs. Keller et al., 39th Ann., 67; William R. Messick vs. Mayer, handed down this day.

The syllabus in Benedict vs. Bonnot et al., 39 Ann., 972, entirely covers the principle on this point.

“If heirs and creditors remain silent and inactive, and permit the property to pass by a public sale into the hands of strangers, purchasers and third persons accepting title from them are fully projected.” " .

Moreover, nothing shows that the purchaser had any notice of the incompeteney ■ of any member'of the family meeting. Non constat that he knew' that Augustus B. Wheeler was a member of the family meeting, or that Ke< knew that he (Wheeler) had any adverse interest to the minors,-for the fact does not appear of record.

Gilmer, Tutor vs. Winter et al., 47th Ann., 39, is in some respects a parallél case. It sustains our view upon the subject.

We take up for decision the adjudicatee’s (Benjamin’s) objection, •next in order of points pressed upon our attention.

3rd. The tutrix of the minors having an interest (hé asserts) in conflict with the minors, she was incompetent to represent them in the partition proceedings. While it may be, that there was a community between the tutrix and the father of the minor's, as urged by this adjúdicátee,'(which was dissolved by thé latter’s deáth), the record shows that the tutrix Had no interest in the property. It wap owned in indivisión, one-fourth to each of the minors and one-half to Hugh Brown (formerly one of the owners), in regard to whose interest there .can be no question here.

. It follows that the adjudicatee’s objection is not sustained by the facts. It being manifest that the tutrix had no interest in the property, the contention of the adjudicatee has no foundation.

. 4th. But the adjudicatee apprehends that the title is not good for the reason, he avers, that the tutrix had community property, and the debt to Wheeler, he assumes was a community debt, and, in consequence, on that theory, she had an interest in the payment of that debt, and the sale of the property to that end.

It is settled, we think, that purchasers at sales are protected from such objections by the decree of the court ordering the sale.

If the court, however, should hold that one intending to buy, must look beyond the decree recognizing its necessity, and make himself familiar with all the facts having the least bearing, and guard against all irregularities of any nature arising therefrom, it still does non appear to us that the tutrix had an interest antagonistic to that of her children. It would have been at most a common interest between her and the children. It does not appear, however, with any degree of certainty, that the mortgage debt to Wheeler was one in which she had any concern as a debtor, and that she was benefited by the cancellation to which it appears he consented. The title, in our view, transferred the property completely. We have not found that these minors, on the ground just mentioned, have^ under our jurisprudence, the least ground to complain. There was not, as we appreciate the facts, any necessity whatever to appoint tutors ad hoc to represent the minors. There was no conflict of interest between them and their tutrix. The decisions to which we are referred by counsel for Mr. Benjamin were rendered in cases in which the tutrix or tutor had an adverso interest to that of the minors. Not the case here.

5th. Counsel invites our attention to another asserted invalidity, which had, it seems, at first escaped most careful scrutiny. It is that Hugh Brown, the co-owner, was the undertutor of the minors, and none the less that, as co-owner, he stood as plaintiff in the partition proceeding. Two family meetings were held, one prior to the sale to effect a partition, wherein the family meeting recommended the terms of sale, which, for some reason, the tutrix chose not to consider compíete, and another family meeting held to ratify the public sale, or to-recommend steps to' be taken in order to transfer a good title; which resulted, as before stated, in recommending a private sale under the statute 25 of 1878 to effect the partition.

These family meetings were held in 1888. Henry Y. Ogden was the undertutor, and not Hugh Brown. We infer the latter who signed the proceeding or inventory in 1887, had resigned, and that he was succeeded by Ogden. • Brown was not a party to the sale as undertutor. -He already, we must infer, had been succeeded by Ogden. This point, made by counsel for Benjamin, we conclude, was based on a misunderstanding of the facts.

The sale was preceded by the required partition proceedings, in which the tutrix properly represented the minors. The terms were fixed by a family meeting, appraisement was made and all the proceedings received the court’s sanction, as shown by the court’s decree.

There is nothing defective or incomplete about the title. It only remains for us to affirm the judgment of the District Court.

For reasons assigned, it is affirmed.


text:
    No. 12,874.
    Succession of Mrs. Rebecca Arbuckle Stewart.
    Syllabus.
    The opening of the letter containing the olographic will.
    1. Sealed Letter. — The opening by the lawyer of the envelope containing an olographic will, gave no good grounds for complaint, and was not Insisted upon as an objection.
    2. Family Differences.- — -There was no marked sympathy by the testatrix for the members of her family or those of her husband’s family, and the only difference between the two was that the testatrix may, at the last moment, have had a decided preference in matter of disposing of her property in favor of her blood relative.
    8. Probate of the Will. — The evidence identified the will and showed that It was in the hand-writing of the testatrix.
    4. Date of the Will. — The evidence of witnesses and experts sustained the date claimed by the proponent of the will.
    5. Legibility of the Will. — The meaning of the will was Interpreted as the whole context made evident it was the intention of the testatrix it should be interpreted.
    6. Suggestion.- — There was no evidence that suggestion was brought to bear upon the testatrix to influence her in the construction of the will.

      ON APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      11. H. Browne for Miss Jenny Doman, Proponent of Will, Appellee.

      James I). Beguin and Charles J. Theard for Opponents and Appellants.
    Argued and submitted April 19, 1899.
    Opinion handed down May 1, 1899.
    Rehearing refused June 27, 1899.
   The opinion of the court was delivered by

Breaux, J.

The deceased, late wife of William A. Stewart, departed this life bn the 26th day of July, 1897, leaving a nuncupative will by public act, dated the 13th day of April, 1896.

In this will, she bequeathed five hundred dollars to her sister, a uesident of California; to her husband the enjoyment of her property, •and at his death it was to be equally divided between her two legatees, her sisters-in-law named in the will. She appointed her husband and James Benson, executors.

This will was presented for probate by her surviving husband on the 13th day of April, 1896.

A niece of the decedent, Miss Jennie Dornan, alleging that this will by public act had been revoked by an olographic will made since the date of the nuncupative will, appeared in court and filed an opposition to the application of the surviving husband.

She averred that the olographic will being subsequent in date should be probated and its execution ordered instead of the nuncupative will.

Out of the contest between the legatees of these two wills arose the issues before us for determination.

The inventory shows that the separate property of the decedent was appraised at.................■.........$ 700 00

The property belonging to the community between the 'decedent and the surviving husband..'............... 8391 00

Total............................................$9091 00

The executor and the legatees under the nuncupative will attacked the olographic will, and urge that it was not written, dated or signed .by the decedent, and if written by the decedent, it was illegible and undecipherable, with no certainty as to its date, save that if it was a will at all, it was of a will of a date prior to April 13th, 1896, and that .it follows it did not revoke the will of April 13th, 1896; that after the .last mentioned date, the decedent was physically and mentally incapa.ble of writing an olographic will; but that if it was in her handwriting, then it was brought about by imposition and deception, and that she was not aware of the sense of the words used.

As relates to facts, we find that the evidence shows that the mother • of the proponent was, at the dates of the two wills, an invalid sister • of the testatrix, Mis. Stewart, who also had two sisters in California .and a brother in Ireland.

The proponent, as a witness in her own behalf, swore that her aunt, the tes'tatrix, wrote the olographic will in her presence, on the 29th ■ of June, 1896, in the forenoon, in the parlor of the home of the testatrix and of her husband, which was also the dwelling place of the •two sisters of the husband, legatees under the nuncupative will.

This witness also swore that on the day the will was written, she, at •the request of her aunt, wrote a letter to the sister of the testatrix; that, immediately after the witness had written this letter, the testatrix wrote her will, folded it up, put it in an envelope, sealed it and gave it to her and advised ’her not to let it be seen by any one.

The evidence also disclosed that this witness said to Mistress M. M. Rurbank, also witness in the case, that, in July, 1896, her aunt made a will in her favor.

The evidence of this witness also shows that, five or six days after the death of the testatrix, she handed the will to her lawyer and requested him to open it and read it.

The attorney testified that a few days before the filing of the will for probate, the proponent whom he had known for many years, brought him the envelope, which had the endorsement: “The Will of Rebecca Stewart;” that it was nicely sealed and clean, as if it had been preserved with great care. Proponent said to him that she did not know the date of the will and requested him to unseal and open the envelope and see the date of it, to ascertain if the date of the will was before or subsequent to the date of another will she understood had been made.

The attorney on cross examination said that he thoughtlessly opened the will; that had he given the matter a moment’s attention,, he would have presented it in court unopened.

Proponent testified that her aunt was in feeble health, that when she wrote the will her hand trembled, but that her mind, however, was unaffected and apparently sound. She died about a year afterwards.. The ink and pen with which the testatrix wrote the will in her presence were brought into the room by a little girl, a daughter of Mrs. Dwyer. She was not certain about the paper, as it may be, she said, that she brought paper to mite a letter for her aunt, upon which we understood the witness to mean a will also was written. The letter written by this witness was returned from California and introduced' in evidence. It is evidence as a matter of truth that the letter was written as stated by the witness. The little girl, on the other hand,, as a witness, denied that she brought pen and ink into the roonj.

Another witness, Miss McGuire, swore that she had frequently seen-the late Mrs. Stewart write; that she felt sure the will was in her handwriting. She, however, was unable to read the whole will.

Judge J. C. Moise and Mr. Percy Benedict, both experts in matters of hand-writing, testified at length in the case. The former stated that he has had an experience of more than fifteen years in the-examination of writing and the characteristics of writing. After an examination of the paper and comparing it with thirty-one receipts-signed by the testatrix, and after having made notes of the peculiarities of the handwriting, this expert testified that it was a genuine document written by a person who was very ill or nervous. Further, that the person who signed the will, is the samé person who signed the receipts. In other words, in substance, that the will was genuine.

Passing in making out our statement of facts to the question of the date of the will we find as a fact that the experts said that the last figure of the year as written in the will is a "6”.

We quote from his testimony: “I will tell you, when I first got this will I could not tell what that was ,and I only discovered and came to my conclusions that it was a ¿6’, by comparing the 6’s. in the receipts. I saw plainly an attempt to make a f6’, but the tremor of the hand was so, if did not do it nicely.” There is other evidence of this expert to the same tenor.

Another expert, Mr. Percy Benedict, said that his opinion was absolutely unprejudiced. At the time that he made his examination, he did not know who were the interested parties and who were their .attorneys. His conclusion was, after comparing receipts undisput.ably written by Mrs. Stewart, with the will, that the one who wrote the receipts signed the will. He found the chirography quite bad at first and almost unintelligible, but after having familiarized himself with the handwriting, he thought that he had deciphered nearly ■every word of it. There were missing letters in a number of words which the witness thought the writer intended to insert. It appeared to him that the one who wrote the instrument, was at the age of decrepitude or was very feeble.

The judge of the District Court, after having1 examined the instrument and heard the witnesses, gave it as his opinion that the will is .a genuine will, and found that its genuineness had been demonstrated by the testimony of the experts; that the following is the proper reading of the will made part of the judgment: “New Orleans,'June 29th, 1896. I want my niece, Jennie Dornan, to have my property, real .and personal, when I die. I appoint sole executrix of my estate. (Signed) Rebecca Arbuclde Stewart”; and that the original read: “New Orleans, June 29, 1896. I want my nese Jenny Donan to hav muy portoy and porionn when I die. I point sole execytrix of muy estate. Rebecca Arbuclde Wlson Stewart.”

The learned judge, in lii's opinion, said in part:

“The date being thus proven and read as written, it is not very • difficult to read the will. The trembling hand and shattered nerves failed to obey the will in most of the words, and there are omitted letters and misspelled words, but there are letters enough in each word to show the intended word with the words which are plainly written and which can easily be read. The context supplies any deficiency or inaccuracy of spelling and makes the entire will a legible instrument. Written words are at best but symbols of ideas. Abbreviations are used for full words by the best writers. They express the idea, the sense and meaning, and that is the object of all writing. In this case, Mrs. Stewart had. a peculiar handwriting, but ■a very characteristic one. Her spelling was peculiar also. Thus the word ‘my’ she spelled ‘muy’, but the sound is the same. The most -obscure word in the will begins with the letter ‘p’ and ends with the syllable ‘ty’. It cannot be read for it has not the letters to spell any word, but the context makes it plainly ‘property’ as the intended word, for with that word the sentence reads: ‘I want my niece to Jiave my property, real and personal, when I die.’ Without this interpretation the sentence has no meaning, for no other word can be-substituted.”

The judgment of the District Court rejected the demand -of the opponents to the will and decreed that it is genuine, and ordered it to be executed. Erom that judgment the. opponents appeal.

1. In passing we note that the circumstances under which the envelope with the endorsement, as before stated, was placed in the hands-of the judge for its probate, do not give rise to- the least ground of objection, save that there was some failure to comply with the strict letter of the Code. The non-compliance does not present a serious question, in. our view, and cannot have the effect of destroying the will, if it be genuine. Tins objection was not pressed, as we take it. It was passed by counsel without comment.

2. We did not glean much from the evidence to denote that there-was any exceptional sympathy on the part of Mrs. Stewart,which prompted her in signing either of the wills made by her at dates not distant one from -the other. The respective parties to the controversy appeared to have enjoyed, in a general way, to the last, her-, sympathy and good will. The opponents, on the -one hand, and their witnesses sought to prove that her relations with her niece were not all pleasant, while, on the other hand, the niece, proponent, attempted to show that she disliked her si-sters-in-law, the opponents, at whose-home she resided. The dispute on this point was pretty well sustained by each of the contending parties. We will not note down accounts of family differences of no importance, frequently magnified or minimized by parties concerned, in the direction suggested by motives of interest. The testimony of one, in our judgment, about sets off that of the other, save, however, that in giving consideration to this branch of the subject, it cannot well be. overlooked that the niece was united to the testatrix by ties of near kindred, and that she was the support of her invalid mother, the sister of the testatrix. They were of the same blood. Every one knows that nearly always this has its power at the last moments of the one departing. Her husband was an aged man and sickly. He made his will át the date that Mrs. Stewart signed her first will, and left his property to his sisters. He also departed this life a short time after he signed his will and not many months after the death of- his wife. Both had reason to- feel that the end was not far, and that, under the will, in authentic form, whoever of the two survived and inherited the property, would receive and inherit it for the benefit of the husband’s kin, for such was the disposition of the property of the wife under the first will. A change in disposing of the property on the part of the wife, if such a change was made by her, was not at all unnatural under the circumstances.

3. We take up next for consideration the few brief lines of the will.

After careful examination we feel certain -that the will was written by the late Mrs. Stewart, and that its date is the 29th of Tune, 1896. We felt no great difficulty in arriving at the conclusion that the instrument was genuine. All the facts point to its genuineness, except minor details which cannot have any serious bearing toward refuting well proven facts. The hand-writing is peculiar, but no one has imagined that any attempt at imitation or falsification was practiced in matter of the hand-writing. There is nothing of record giving rise to the inference that any other but the testatrix wrote this will.

We have seen that one witness swore that she was present when the will was written, whose evidence is corroborated in some respects, at least. True it is that the other witnesses who testified regarding the genuineness of the hand-writing of Mrs. Stewart, on cross-examination said that she could not decipher the context of the will. She. did, however, decipher some of the words.

In our judgment, a person may be a competent witness to prove the genuineness of a will without being able to decipher all the words written. It happens frequently enough that one cannot read the words of a letter, although he is quite certain, from his familiarity with the handwriting of the writer, that the letter is in his (the writer’s) handwriting.

4. This brings us to the question of the-date of the writing.

The testimony sustains the date as being correct, as relates to the year 1898. The testimony on this point is uncontradictory, as we take it. No one has assumed -to say, as -a witness, that it was not 1896, although the figure “6” is not clearly written. To find otherwise, we would have to conclude that one of the witnesses who swore that she was present when it was made, swore falsely, and that the testimony of the two students of hand-writings and their characteristics was entirely erroneous and not trustworthy. We know that ordinarily the testimony of experts, in matter of hand-writing, uncorroborated, is frequently taken as being of little value; but here the testimony oT these two experts is direct and clear. Their conclusions are sustained by highly intelligent analysis of every word, and letter of each word, .after painstaking comparison with instruments of writing known, or admitted to be known, to be in the hand-writing of the testatrix.

These experts are, as we take it, skilled in the examination of hand-writings, and have been a number of times called upon to decide the genuineness and the meaning of written words.

The testimony of the witness who was present when the testatrix wrote her will, finds corroboration in the date of a letter written for her aunt to her sister in California, bearing the same date as the will. The letter and the envelope, duly stamped, are of record.

The coincidence is too striking and too forcible to be considered discredited by the testimony of a little girl, who may have forgotten all about bringing pen and ink to the witness, Miss Doman, as stated by her.

The letter, the testimony of the witness, and that of the experts are affirmative and clear. We do not think we should disregard these facts under the circumstances.

With reference to the date of wills, we quote from Laurent, Vol. 13, p. 203:

Quant au point de savoir si la date surcharge est lisible ou non, c’est e’videmmont une question de fait”.

"Surcharge” has the meaning of a date written over a prior date. As a “question de fait,” in our judgment, it is sustained by the evidence.

5. The averment that the will is illegible and unreadable gives rise to the next issue before us for decision.

The Louisiana Code contains special rules for the interpretation of legacies, directing, in the interpretation of testaments, that the intention of the testator should control, without, however, overlooking the words and expressions. The second rule embodies the maxim: magis ut res valeat quam periat; that a “disposition must be understood in the sense in which it can have effect, rather than that in which it can have none”. Civil Code, Arts. 1712, 1713.

Those rules controlled in 6th Ann., 172, State of Louisiana, etc. vs. Executors of John McDonogh, holding: “Courts may go further in cases of, testaments than in contracts in disregarding the meaning of words used, and even supply words omitted when they may be materially restored.” Under that decision, may not an interpretation be given to a will evidently in accordance with the meaning the testatrix intended it should have?

In line with the decisions of this court, in Burthe, Tutrix, vs. Denis, Executor, 31st Ann., 568, Judge Spencer, for the court, reviewed the authorities at some* length bearing upon the subject here, :and said: “The court is authorized to resort to all the circumstances which may throw light upon the matter when, from the terms used by the testator, his intention cannot be ascertained.” Citing a number of decisions.

In the ease in hand, as relates -to intention, there is no ground for consulting surrounding circumstances. We only have to read the testament, as the words make it plain what it should be. When examining and pondering over this branch of the case, we asked ourselves the question: What could she have meant by the words used, if she did not thereby mean that her niece should inherit by her will all her property and her personal effects?

As relates to the necessity of consulting and of discovering the intention of the testator, if it can be done, foreign jurisprudence accords with our own.

In Laurent we read:

“Le juge pent il corríger des erreurs de redaction. * * *S’il a mal exprime sa pensee, c’est son intention qu’il faut recherche. Comment peut-on las connaitre? L’article 1161 (19^9 Old La. Code) porte: ‘Toutes le clauses des conventions s’interpretent les unes par les autresj en donnant a chacune le sens qui resulte de Vacie entieS. C’est une regle d’interpretation que Von doit suivre pour toute espece d’ecrits”. Vol. 14, p. 165.

The decision from which we have quoted above contains the statement: "“Such seems also to be the rule at common law”; expressed also by the maxim: "Voluntas potius quam verba spectari placuii.”

The case here is much stronger, for it only requires that the meaning conveyed by the text should be given.

v. Opponents urge that the illiterate testatrix could never have ■devised such a document, free and uncontrolled. In other words, that there must have been suggestion or improper influence brought to bear.

In answer we can only say that there is no evidence before us of suggestion or captation. The visits, care and attention of relatives are not reprehensible in themselves, and cannot have the effect of vitiating the will, in order to give ground for assailing the will on the basis of captation or suggestion. When admissible at all, there must be fraudulent or violent captation or suggestion. This cannot be presumed. Proof must be made of it, by the heirs or legatees.

We have given to this case all the attention possible and have carefully reviewed all issues to this point and noted them, save the issue growing out of the difference in paper and ink used in constructing the will. On this point we have not found it cause enough to annul the will. The affirmative is sufficiently corroborated to prove that the - paper was furnished to the testatrix. This view is sustained on the theory that it was as proponent swore. She did bring paper to the testatrix; and it may be on one of the sheets 'brought, she wrote a letter for her aunt, and on the other her aunt wrote her will.

After wo had arrived at the conclusion that the will had ‘been written by the testatrix, there remained only the question of the date of the will, which we have heretofore considered and passed upon.

For reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from he affirmed.