author: Watkins, J.

text:
    NO. 11,280.
    Alice A. Zerega et al. vs. John Percival.
    1. The law not having designated the particular place in which the date must be put in an olographic will, it may be place 1 at the head, at the foot, or in the body of the instrument.
    2. A demand in nullity of a testament, on the ground of captation and suggestion, is barred by the provisions of Art. 1492 of the Revised Civil Code.
    3. An action in nullity of a testament, on the ground that it was obtained by means of the ascendancy acquired by the legatee over the testatrix, in his character as a minister of religious worship, while in attendance upon her during the Illness of which she .died, is barred by the provisions of Arts. 1489 and 1492 of the Revised Civil Code. Further averment is necessary if the legatee is the husband of the testatrix, that he married her in fraud of the law, or with the fraudulent design of defeating the incapacity established by law.
    APPEAL from the Oivil District Court, Parish of Orleans. Theard, J

      Farrar, Jonas & Kruttsehitt, J. G. Gilmore and Marshal Gasquet Attorneys for the Plaintiffs and Appellants:
    The question is res nova in this State and this court is at liberty tO' settle it on principle.
    There is a profound and logical reason for excepting blood relations, and not husbands, from the provisions of Art. 1489, C. C.

      The policy of the civil law is that property shall follow blood and not affinity.
    The husband is not the heir of the wife nor the wife of the husband, except by irregular succession. The wife excludes only the State. The remotest blood relation, even a natural child acknowledged, excludes the husband from the wife’s estate.
    Therefore, in testamentary matters, are they put on the footing of mere strangers to each other.
    Art. 909, O. N., is the substantial foundation for Art. 1489, 0. 0., but the latter departs from the former in several respects.
    The article of the 0. 0. is limited to physicians and surgeons. The French article includes “ health officers and pharmacists.” The one makes exception of all persons connected by blood. The other excepts blood relations within the fourth degree, and then only where the testator had no heirs in the direct line, unless the legatee was himself one of such heirs. It thus appears that the compilers of the Oode of Louisiana have not merely copied the French article, but have profoundly modified it.
    It has been held that where the marriage takes place during the illness of which the wife dies, and she is at that time the patient of the doctor who marries her, he is incapable of being her universal legatee. Gile de Han vs. Regel, Oour Royale de Paris, 25 Fevrier, 1817, J. du P., Yol. 14, p. 92. It is contended the allegations of the plaintiffs bring them exactly within the doctrine of this case; if not specific enough to establish a general case of fraudulent captation, they are sufficiently broad to enable plaintiffs to prove that the testamentary disposition in favor of the defendant was the outcome of his ministerial influence, and not of conjugal affection.
    Art. 1489 of our Civil Code is to be strictly construed. The doctor or minister of religious worship who marries the sick person whom he has attended during her last illness is precluded from receiving from the decedent donations inter vivos or mortis causa.

    Art. 1489 establishes a special incapacity.
    Art. 1492 prohibits proof of the dispositions being made through hatred, anger, pure and simple unadulterated suggestion and captation, but it does not prohibit proof of fraudulent suggestion and captation.

      The intention of a testatrix to make a universal disposition will not be deemed absolute where the will, on its face, exposes a lack of exercise of voluntary testamentary intention, and contains no date as a last will and testament.
    The date in the context of the testament will not be deemed to refer to the will, but to the universal disposition, and can not be deemed as the placing of the date of the will within the meaning of a date as one of the forms required by law for an olographic testamen".
    The writing, date and signature are intrinsic elements (of form) of an olographic will, as are also the voluntary intention and the capacity of the parties, testatrix and instituted heir and universal legatee.
    In a suit to annul a will for fraud and lack of voluntary intention of the testator, date and incapacity of the universal legatee, arising under Art. 1489 (1476) Revised Civil Code, Art. 1492 (1488), prescribing that proof shall not be admitted of the disposition having been made through hatred, anger, suggestion and captation, will not apply as an exception to evidence or cause of action.
    Article 1489 (1476), establishing an incapacity against clergymen, in ,■ certain cases, applies to the relation of husband and wife, in reference to nullity of a universal disposition by the wife to a clergyman, the husband, who has attended his wife in the exercise of his calling in illness of which she died.
    Estoppel will not lie against a party contesting a will as legal heir, who has brought a suit to recover her own interest in furniture and movable property held by the executor, universal legatee, in possession under the will, when she afterward sues for the absolute nullity of the will.
    In a case where the will contains no other disposition but the universal legacy to the husband and the appointment of the husband as executor, and the husband has been placed in possession under a judgment recognizing him as universal legatee and instituted heir, the testament will be set aside in entirety, as indistinguishable from a single illegal disposition mortis causa, in contravention of Art. 1489 (1476), R. C. O. Citing Coin d’Lisle, pp. 319-320, Chap. Y, preceding Art. 967; Art. 970, pp. 333-345, No. 30, 348, 318-320, 439; note, pp. 9, 10, 84, 85, 88, 89; Demolombe, Vol. 21, p. 54; Don. and Test. 4, pp. 437, 438, 132-133, No. 156-162, pp. 169-170; Laurent, Vol. 13, Don. and Test., pp. 170, 190, 199, 200, 218, 224, 229,333, 335; Demolombe, pp. 503-549, 344, 345; Laurent, Vol. 2, 464, No. 339, 484-564; Laurent, Vol. 11, No. 353; Coin d’Lisle, pp. 320-321; Ooin d’Lisle, p. 320, pronounces the date “intrinsic;” Laurent, Don. and Test., Vol. 13, pp. 183-184; Ooin d’Lisle, Don. and Test., p. 86; Hebert vs. Winn, 24 An. 385; Baudry Lacantierie, Vol. 2, 393; Pandectes Francaises, Don. et Test. 1717; see also Hebert vs. Winn, 24 An. p. 385, in our favor on this point of proof, and citation of Jarman on Wills — invoked by counsel for defendant; Troplong, Don. and Test., Vol. 2, p. 72, Sec. 491; Burke case, 35 An. pp. 163-179; Winn case, 24 An. p. 385; Ed. 1865, Micheaux Des Testaments, pp. 29, 30, 45, 46, 82, 92, Sec. 670, pp. 425, 276; Delvineourt, Vol. 37,41-42; Troplong, Vol. 2, Don. and Test., 68, 75; Laurent, pp. 171, 228-242, 224, 191-201 (Vol. 13, Don. and Test.) ; Demolombe, Vol. 21; Zacharise, Vol. 5, p. 29; Pothier, Don. and Test., Vol. 10, p. 533; Demolombe, 1, p. 347; Troplong, Vol. 1, Sec. 2, 488, p. 238; pp. 69-72, Sec. 488, 495; Poujol, Don. and Test., Vol. 2, p. 16, No. 4; Boileau, p. 489, Art. 909, O. N.; Ker on Fraud and Mistake, pp 193-195 and citations; Schouler on Wills.
    In Dalloz we find innumerable opinions. Here are the following for refere ce:
    On the question of fraudulent suggestion and captation: Dalloz, Vol. 5, Verb. Don. Dis., pp. 240, 288, 294, 291.
    Two last decisions on the Article 909, O. N. — a fraudulent manoeuvre. On fraudulent suggestion and captation: Dalloz, 1826, 1st part, p. 391; Dalloz, 1830, 1st part, p. 84; Dalloz, 1837, 1st part, p. 193; Dalloz, 1842, 1st part, p. 428; Dalloz, 1833, 2d part, p. 36; Zacharise, D. O., Vol. 5, pp. 28 and 29: Boileau, Vol. 3, pp. 469, 495, note; Guillion Traite de Donations, Vol. 1, p. 136; Delvineourt O. O., Vol. 4, pp. 37-42.
    The legacy made by a wife to her husband, who was at the same time her doctor, was declared null and void — for the reason that he had treated and cared for her professionally before her marriage and during the sickness of which she was ailing, at the time of her marriage, and of which she. afterward died.

      DelVincourt is already of the opinion that the incapacity existing before the marriage, to receive testamentary dispositions, can not be avoided by a subsequent marriage.
    The Court of Cassation so decided that the incapacity existing at the time of the marriage could not be covered by the marriage. Delvincourt O. C., Yol. 4, p. 42.
    The Court Royale, of Paris, decided conclusively and in terminis the same way in regard to same doctrine, by judgment and decrees of the 24th February, 1817. Sirey, 1818 (2d part, p. 354), also January 26, 1818 (2d part, p. 360).
    These different prohibitions have been pleaded in the code in order to circumvent and prevent frauds which might be perpetrated on weak persons. Troplong, p. 69.
    Cassat, 21st December, 1841, Devill, 43, 1, 51. Those are the same as the principles of the Louisiana Code. Proof of. simple captation is not admitted, but when fraud is connected, or a party to it, annuls a test'arhent. Art. 1492.
    Proof of hatred, suggestion and captation.
    Correct, but where fraud is connected with suggestion and captatation, proof of the same must be admitted. Micheaux de Testaments, p. 29.

      Carleton Hunt Attorney for Defendant and Appellee:
    When an olographic last will and testament is entirely written, dated and signed by the hand of the testatrix, it is a complete and perfect instrument The olograph is subject to no other form. The insertion by the testatrix, before signing, of the words “ the whole written, dated and signed by me personally,” affects in no way the validity of such a testament. 5 An. 278; 27 An. 269; Coin de l’lsle, Don. and Test., Art. 970, No. 30, Yol. 1, p. 343; Zacharise, Droit Civil Francais, Note 22, Sec. 668, p. 490, Vol. 5; 1571, 1588; Demolombe, Donations et Testaments, Vol. 1, No. 56; Rogron, Art. 970, Codes Annotés, Marcade, Ed. 52, Vol. 4, pp. 6, 7, 8, 9; Duranton, Vol. 9,-pp. 30, 31, Nos. 31, 32; Ed. 34, Zacharise, Vol. 5, Sec. 688, p. 488 et seq. Dalloz, Codes Annotés, p. 783, Nos. 146,-166, 151; 3 Toullier, No. 369, p. 103; Brussels Ed. of 1837.

      'The charge of suggestion and (aptation is tantamount to what is un - derstood elsewhere by undue influence. Fraud and undue influence are nearly synonymous. By the terms of Art. 1492 proof is not admitted of testamentary dispositions having been made through hatred, anger, suggestion or captation. 9 La. 458; 35 An. 161; 1 Redfield on Wills, Star., pp. 512, 514; Bouvier Law Diet., verbis captation and suggestion; Ooin de l’Isle, Art. 901, Oode Civil, Vol. 15, No. 16, p. 852; Demolombe, Don. and Test., Vol. 1, pp. 410, 411, No. 384; Bédarride des Dol et de la Fraude, Vol. 1, pp. 392, 393, 389.
    -Art. 1492, O. O., is copied from Art. 18, p. 212 of the Oode of 1808, known as the Digest of the Civil Law. Art. 18 was proposed in the shape of an article in the projet for the Civil Oode of France, but was rejected. The framers of the Oode of 1808 had before them the discussion on the projet. The public policy which was rejected in France prevailed in Louisiana. The law as formulated in Art. 18, Oode 1808, and Art. 1492, R. O. 0., has always remained in force in th s State. Locré, Legislation Civile, Vol. 1, Chap. 6, pp. 71, 72, 73.
    When a case, being an action in nullity of an olographic testament, on account of captation and suggestion and undue influence, comes on for trial; and the defendant immediately raises the objection that under Art. 1492, R. 0. 0., proof is inadmissible, and that the petition is vague, and wanting in all proper specifications and particularizaiion of time and place and circumstances,, and the trial co rt sustains the objection in question; and plaintiffs obtain leave to amend and supplement, and proceed to do so; and the defendant take-s a rule to strike out the amended and supplemental petition, and the rule is discharged; but the trial judge reserves to defendant the right to except thereafter to the amended- supplemental petition, if the same does not disclose sufficient ground of action, and either under the general issue or by peremptory exception; and thereupon defendant, having not only pleaded the exception of no cause of action, but having repeated the same at the proper time, flies his answer; and the case is regularly fixed and comes on for trial a second time.
    It is the right of the defendant to assume that plaintiff has set forth his case as completely as he can; and it is then competent for defendant to argue and have passed upon him by the trial court, his exception of no cause of action, and additional peremptory exceptions, and especially the exception going to the foundation of the action, thatthe plaintiff’s petitions are wanting in the particulars and specifications required by law for an action in nullity of a will on the ground of fraud and violence. It is bad practice to refer such exceptions to the merits. C. P. 343-6; 18 An. 643; 19 An. 207; 21 An. 500; 31 An. 680; 38 An. 232, 526; C. O. 1851; Hennen’s Dig., pp. 1114-1147; 6 Martin, 510; 7 An. 238-241; Coin de l’Isle, Code Oivd, L. Ill, T. II, p. 86, No. 21; Grenier, Don. and Test., Vol. 1, p. 428, No. 149; Merlin, Rep. Mot. Suggestion 81, No. 2; Toullier, No. 5, 713; Bédarride, Yol. 1, No. 399.
    Properly understood, Art. 1492, R. O. C., is also a bar to the allegation of the petition and to the intervention herein, that nullity of the testatrix’s testamentary disposition in favor of the defendant results from the ascendancy acquired by him over her in his character of a minister of religious worship in attendance upon her during the illness of which she died. Art. 1492, R. C. C., is to be construed with Art. 1489, R. C. O. The jurisprudence is well established that the provisions of Art. 1489 are entirely without application to the relation of husband and wife. Art. 909, C. N., and Art. 1489, R. C. C., correspond; Art. 1489 is to be construed with Arts. 119 and-1749, R. C. C.; Art. 119, R. C. C., is the same with Art. 212, C. N.; Arts. 1749, R. C. O. and 1096, C. N., correspond; Art. 1091, C. N., and Art. 1736, R. C. 0., correspond, and so do Art. 1094, C. N., and Art. 1739, R. C. 0.; Demolombe, Don. and Test., Yol. 1, p. 566, No. 543, and authorities therein cited; Marcade, Art. 909, C. N., p. 423, No. Ill; Laurent, Don. and Test., Yol. 11, p. 484, No. 353; Ray vs. Broisin, Cassation, 1808; 7 Journal du Palais, p. 121; Bonnet vs. Desordes; 15 Jour, du Palais, 1820, p. 688; Desordes & Guyot. vs. Bonnet, 14 Jour, du Palais, 1817, 1818, p. 592; Boyer vs. Damiens de Beaufort, Jour, du Palais, 1819, 1820, p. 580; Demolombe, Don. et Test., Yol. 1, p. 569, No. 545, giving numerous authorities.
    The action of an intervenor, who joins plaintiff in a suit in nullity of a testament, is barred if he has already sued the defendant for a partition to enforce a division of property which is held jointly by the intervenor and the defendant in the character of instituted heir under the testament attacked. R. C. 0. 1380; Mayor vs. Armant, 14 An. 181.
   The opinion of the court was delivered by'

Watkins, J.

This is an action for the revocation and annulment of the will of Martha Vaughan Gasquet, deceased wife of the defendant, instituted by her two survivng sisters and one niece, as heirs at law — it being alleged that the deceased was married to the defendant on the 16th of December, 1886, and departed this life on the 11th of October, 1891, leaving neither ascendants nor descendants.

The will is olographic in form, and was admitted to probate on the 14th of October, 1891. It is couched in the following terms, to-wit:

“ In the name of God, the Holy Trinity, Amen:

“I, Martha Vaughan Gasquet Percival, in view of the uncertainty of human life, do make this my last will and testament in holographic form.

“I give, will and bequeath all the property of whatever kind, real and personal, movable and immovable; all moneys, assets and effects which I may possess or own, or have any claim on or interest in at the time of my death, to the Rev. John Percival, my husband. I make him my sole heir, and give to him, my said husband, immediate and unconditional seizin of my whole estate at my decease.

“This is my good and valid will and testament, and I now revoke and declare to be null and void any and every other will and testament heretofore made by me.

“This done in the city of New Orleans, State of Louisiana, this Tuesday, the ninth day of July, in the year of our Lord 1889.

“The whole written, dated and signed by me personally.

“Martha Vaughan Gasquet Percival.”

Under the decree of the presiding judge the defendant was recognized as universal legatee under the terms of the testament and invested with possession of the decedent’s succession.

The grounds of attack set out in the plaintiff’s petition are substantially of the following purport, to-wit:

First. That the testament is not clothed with the formalities required by law for such an instrument, in that it is not properly dated.

Second. That it was not the voluntary a'ct of the deceased, and was not made the repository of her intentions, because same was procured by means of undue influence exercised by the defendant in his own favor, and with the view of supplanting her legal heirs.

To this petition the defendant for answer plead a general denial, accompanied with the special defence that the charge of undue influence made against him is an unjust and slanderous charge; and the averment is made that the will is complete and perfect in every essential particular and valid in form.

Upon the^e issues, a trial of the cause was begun, and testimony was being introduced on the behalf of the plaintiffs when the defendant’s counsel objected thereto on the ground that the charge of undue influence was tantamount to that of captation and suggestion, proof of which is inadmissible under Art. 1492 of the Civil Code. This objection was sustained on the ground that such allegations were insufficient to authorize the introduction of proof under them, same being unaccompanied with specific charges or facts of fraudulent practices.

Thereupon the trial was continued on the issue remaining — that is to say, upon the alleged informality of the testament. Thereupon the plaintiffs filed a supplemental petition, with the evident purpose of supplying the defects of their original petition.

In this supplemental petition the plaintiffs make quite an elaborate statement of the various acts and facts of fraudulent captation charged? and among them the following, to-wit:

“ That the defendant was at the time of his marriage with testatrix and since, professionally attending her as a minister of religious worship during her sickness of the malady with which she died, to-wit: tuberculous consumption, and the legacy which the defendant had obtained from his sick wife, instead of proceeding from conjugal affection, was the result of the abuse of the ascendancy which he had obtained over her in the exercise of his calling; that notwithstanding their said marriage, defendant employed unlawful power over his wife’s testamentary intentions to defeat her will and to perpetuate the pretended will which he had procured from her at. his dictation; that the said Mrs. Percival was fraudulently prevailed upon and coerced by the defendant to leave him her said estate under fear of threats and violence, and in her weak condition of health she was subjected to constant surveillance and restraint up. to her last moments, to such an extent as to deprive her of and destroy her testamentary capacity; that the will was not left in the keeping of decedent, where she conldhave access to it, and that she was prevented by every means from exercising her volition as to her testamentary intentions in any manner, or revoking the said instrument, which had been obtained from her by illegal and fraudulent means and had never expressed her true and final intentions.”

About this juncture of time a change occurred in the personnel of the judges of the District Court, whereby the judge who presided when the proceedings outlined above occurred, was displaced by the judge who conducted the subsequent pro eedings to final judgment and appeal. Subsequent to this change, defendant filed the following peremptory exceptions, to-wit:

1. That the plaintiffs’ petition and the intervention herein being petitions in nullity of the testament of exceptor’s wife in favor of exceptor on the ground of defect in the form thereof as an olographic will, and especially as not having been dated by the testatrix, because of the situation in the testament of the date and of the manner of indicating the same, can not be maintained.

2. That the plaintiffs’ petition and the intervention herein being petitions in nullity of said testament on the ground of captation and suggestion are barred by Article 1492, R. O. O.

8. That plaintiffs’ petition and the intervention herein being petitions in nullity of said testament, as a disposition obtained by means of the ascendancy acquired by him over the testatrix, in his character as minister of religious worship, in attendance upon the illness of which she died, are likewise barred by Article 1492 and Article 1489, R. 0. 0.

4. That plaintiffs’ petition and the intervention herein being petitions in nullity of the testament of exceptor’s wife, and charging fraud on exceptor, and fraudulent coercion on his part, in obtaining and the obtaining of said testament under fear of threats and violence, are vague and indefinite and wanting in any and all proper specification of time, place and circumstance.

5. That the intervention herein is barred by the judicial confession of intervenor, Miss Frances Gasquet, who has sued exceptor for a partition.

On motion of defendant’s counsel, these exceptions were at once taken up for trial, because they were peremptory in character, and the same were sustained and the suit dismissed, and from the judgment of dismissal the plaintiffs have appealed.

I.

The preliminary question to be decided is whether the district judge correctly disposed of the exceptions at the time he did, or should he have deferred his decision until he decided the merits of the cause.

It is apparent, upon simple inspection, that the exceptions pleaded are of a peremptory character, and founded on the law, and for that reason pleadable during the progress of the trial, which had, however, just begun.

The purport of the exceptions is, first, that the charges preferred are barred and precluded by the terms of Arts. 1489 and 1492 of the Civil Code; and-second, that the charges of fraudulent coercion are too vague and indefi ite, and so wholly wanting in specification of time, place and circumstance as to render all proof under them inadmissible.

Manifestly these objections were so general and sweeping as to require action on the part of the court at the very outstart, as they appeared at the threshold of the controversy. If, indeed, the matters set out in the petition and amended petition are barred by the law, and for that reason not actionable at all, the judge a quo was, by the exception of defendant, charged to determine and decide that question preliminarily. And if in fact the allegations of the petition are too vague, and proof was inadmissible thereunder, certainly the judge was bound to pass upo a that question, when the objection was urged against; he admissibility of proffered testimony. ■

The law provides that peremptory exceptions founded on law are those which, without going into the merits, show that the plaintiff can not maintain his action,” etc. O. P. 345.

Such exceptions “ may be pleaded in every stage of the action previous to definitive judgment,” etc. C. P. 346.

In Jennings vs. Vickers, 31 An. 679, it was held that “an exception which, if maintained, will terminate the suit; ought to be tried •and decided in limine.” ■ •

In Farmer vs. Hafley, 38 An. 232, the court said that it was bad practice to refer to the merits, exceptions which go to the foundation of the action.

Such, indeed, is the settled jurisprudence of this court, and it has been established in the interest of a correct and economical administration of justice. Certainly no reason can be assigned why the trial and final disposition of an exception that may put an end to the case should be deferred to the final trial of the cause, thus inflicting additional cost and expensive delay on the litigants and protracting litigation unnecessarily.

We not only approve, but applaud the action of the district judge in taking up and disposing of the exceptions during the progress of the trial, for if they are maintained in this court, this litigation will be terminated.

II.

First, in order of occurrence as well as in importance of result, if maintained, is the exception that the allegation of nullity of the will for want of form can not be maintained, the averment being, substantially, that it is not dated, and is, therefore, lacking an essential element for its validity.

As the objection, if it be well founded, is plainly and easily discoverable on the face of the instrument, it presents a naked qu stion of law as to whether the terms of the will in this respect constitute a date in the sense of the code. Presented in this light this objec- ' tion is the equivalent of the plea of no-cause of acti n, and peremptory in character and determinable in limine.

The concluding portion of the testament is couched in the following terms, viz.:

“This is my good and valid will and testament, and I now revoke and declare to be null and void any and every other will and testament heretofore made by me.

“This done in the city of New Orleans, State of Louisiana, this Tuesday, the 9th of July, in the year of our Lord, 1889.

“ The whole'written, dated and signed by me, personally.

“Martha Vaughan Gasquet Peroival.”

The question raised by the defendant’s exception is, whether the terms of the instrument are responsive to the terms of the law, to-wit:

‘ ‘ The olographic testament is that which is written by the test tor himself.

‘1 In order to be valid, it must, be entirely written, dated and signed by the hand of the testator. It is subject.to no other form,” etc. R. O. 0. 1588.

The contention of the plaintiffs is, that the will has no date within the meaning of the law; and their counsel propound this question, to-wit:

“How can we, therefore, be called upon to supply this date by appropriating a date out of the body of the will, as a date required by law, which it lacks ? and, not having a date, how can we accept this instrument as a solemn act of last will and testament, gifted to speak out after death with ‘ most miraculous organ.’ ”

A careful perusal of this interrogatory discloses the objection of plaintiffs to be, that the date is defective and illegal, because of its being in the body of the testament — exceptants not doubting that the testament was wholly written by the testatrix herself, as the following quotation from their brief will attest:

‘ ‘ The impression left on the mind by reading for the first time this will, in the original, is not only that it is not dated, but that it is not the personal act of the testator, although indisputably, we presume, in her handwriting.

“The perusal completed, the mind vaguely inquires for the date at the end of the will — and then recurs to the top of the instrument in search of it, and the envelope; then, on further consideration, reverts to date in the body of the instrument; during which time the conviction that it is a solemn act of last will and testament is suspended, if not lost, and can not be said to resume moral consciousness in the enunciation in the words ‘this * * * by me, personally,'1 which no testator would think to add to the evidence of hi . own handwriting in the entirety of the instrument; or then to underscore as done, except to expose the intervention of a foreign hand.”

But this course of argument is a clear departure from the text of plaintiff’s exception in that it is not solely based upon the want of a proper date to the instrument, but is made to turn upon the alleged impression that is created on the mind by the absence of a date that the execution of the will was not the personal act of the testatrix — an altogether different question from the one propounded, viz., that the date given is in the body of the will, and for that reason same is null and void.

Hence the inapplicability of the quotation counsel have male in support of that argument, viz.:

This court has said, in the case of the Succession of Bobb, 41 An. 250: “ In interpretation of a will the first and natural impression derived from .reading the clause involved is entitled to great weight. The writer is not supposed to be propounding riddles, but rather to be trying to convey his idea in the simplest and most natural manner, so as to be correctly understood at first view.”

And for like reason, we think, their reference to Succession of Morvant, 45 An. 208, equally inapplicable.

Neither of those cases involve the question we have here for consideration — the date of the testament.

As a confirmation of the statement that the date must be appro- . priated from the body of the will, the concluding paragraph is pointed to, viz.:

“ The whole written, dated and signed by me, personally.”

Given its literal meaning and interpretation, this sentence asserts the truth of the proposition plaintiff’s petition denies; for it declares that “the whole” — that is the will — was “written, dated and signed” by the testatrix.

At most, this seems to be a mere repetition of the fact that is made evident by the paragraph immediately preceding it, viz.: “ This done * * * this Tuesday, the ninth day of July, in the year of our Lord 1889.”

How this mere repetition of the fact that the testament was dated can be made to operate as a denial of that fact we can not perceive, unless it be upon the converse of the proposition, that two negatives equal an affirmative.

This addendum, occurring- as it does after the actual date of the will, is restricted in terms to the declaration of the fact that it was written, dated and signed by the testatrix, and does not make reference to the disposing part of the instrument. It relates exclusively to the confection of the will, and constitutes no part of the body of it.

Per contra, the contention of the defendant’s counsel is, that the law prescribes no particular place in the will where the date must be placed, and that, consequently, the date of an olographic testament may be either at the beginning or at the end, or in the body of the instrument itself, provided that it is fairly and plainly inferable from an inspection of the instrument; that it was the intention of the testator that it should have the date in question. He closes his argument on this question thus:

. “ Whether or not this be the ease, must be made the subject of judicial inquiry in every suit, where the issue has been properly joined and tried; but, whenever relations reciprocal, between the date of the testament and the bequests, are, reasonably speaking, made clear, the mere locality, or the exact situation of the date in the will, the instrument being otherwise valid, is matter of small, if indeed it is of any importance at all.”

The district judge entertained the defendant’s theory and expressed the following view in his reasons for judgment, viz.:

j_ “Albeit Art. 1588, in stating that the olograph shall be written, dated and signed by the testator, is suggestive of the order to be observed in the preparation of the act, still, as the law has not prescribed in terms the place to be occupied by the date, it is immaterial where it is put. It may be at the beginning, at the end, or even in the context of the act. It may also follow the signature. 27 An. 271, Succession of Fuqua.

“But, in that case, it is for the court to decide whether the date is intended to apply to the testamentary dispositions,,or whetner it is so far from them as to exclude all idea of its being connected therewith. In the same manner, when the date is in the body of the instrument, the court must inquire whether the date refers to the dispositions which follow as well as to those which precede it, thus making the several parts of the instrument a continuous and congruous entity, or whether the subsequent dispositions are without date, and hence null. Prudence would, therefore, counsel a testator, anxious to place^the execution of his last w shes beyond the uncertainty of litigation, to date the will immediately before signing it, but his failure to do so and the writing of .the date in the body of the will would not be a cause of nullity. -Such is the consensus of opinion among the French commentators on Art. 910, Napoleon Code, of which our Art. 1588 isatranslation.” Rogron, Code Napoleon Annoté, pp. 1001-1002; Marcadé, Ed. 1852, Vol. 4, pp. 6, 7, 8, 9, par. 12 etseq.; Zachariæ, Vol. 5, pp. 84-85, Sec. 688; Pothier, Obligations, Vol. 77, p. 277; Duranton, Vol. 9, pp. 30-31, Nos. 31-32; Toullier-Duvergier, Vol. 3, p. 205, No. 369; Dalloz, Vol. 1, Codes Annotés, No. 148, p. 783; Coin d’Lisle, Don. et Test., No. 2, p. 336, No. 30, p. 343.

The will under consideration in Succession of Fuqua, 27 An. 271— to which case the district judge referred — was first signed and then dated, thus:

‘£ Mrs. Sarah B. Fuqua.

“September 12, 1873.,}

Of it the court said:

We come now to consider whether the instrument above quoted is a will. We are of opinion that it is. It is in the olographic form; entirely written, dated and signed by the testatrix. Objection is made [that the date is not affixed in the proper place. It is not essential that the date to an olographic will should precede the signature. It may be placed below. See Coin d’Lisie under Art. 970, Oode Napoleon, No. 30, where the authorities on this point are cited.”

The same proposition is quite as distinctly announced in Lagrave vs. Merle, 5 An. 278. In that case the will was dated at the beginning, and signed at the end, and of the complaint made of it the court said, viz.:

“ The argument of counsel has been principally directed to the last clause, revoking all former wills, which comes after the date given to the closing part of the principal testamentary disposition. This, though in the handwriting of and signed by the testator, has no date appended to it,” stating a case much stronger against the will than that stated by the plaintiffs. Of it the court said:

“ The case turns on the consequence attending the posterior clause not being dated. The code provides, that for the validity of an olographic will, it must be written, dated and signed by the hand of the testator. It is subject to no other form, and may be made out of the State. .Art. 1581. * * * The law not having fixed the place in which the date must be put in an olographic will, it may be placed not only at the head but also at the foot of the instrument and in the body of it.

“ A date, though affixed to the first clause, and before the second, may be applied to one as well as to the other, and thus both may be considered as dated and signed. Droit Prancais, Lib. 3, Tit. 2, Sec. 34 et seq. ’ ’

Hence it is quite clear that under the provisions of our own code, as well as under the Napoleon Oode, and the jurisprudence of Prance as well as our own, that the particular position or place of the date of a will is not fixed or sacramental, and our conclusion is that the exception of the defendant is well taken, and that same was correctly maintained by the judge a quo.

III.

The second ground of exception is, that no evidence is admissible under the allegations of the plaintiffs’ petition, wh ch are of the following tenor and effect, to -wit:

“ That said Mrs. Percival was fraudulently prevailed upon and coerced by the defendant to leave him her said estate, under fear of threats and violence, and in her weak condition of health she was subjected to constant surveillance and restraint, up to her last moments, to such an extent as to deprive her of and destroy her testamentary capacity,” etc. — the objection being that the charge of the petition is that of captation and suggestion, which is barred under the provisions of t e code.

The code declares that “ proof is not admitted of the dispositions having been made through hatred, anger, suggestion or captation” (R. C. 0. 1492 [1479] ) ; and the argument of defendant’s counsel is, that the allegation that the testatrix’ testamentary capacity was destroyed by the persuasive power and coercion of the defendant, and by the constant surveillance and importunities of the defendant, up to her last moment, is, in effect, a charge of suggestion and captation in -the sense of that article.

The learned judge of the District Oourt, in the course of his examination of this case, gave due attention to this question, and, in his reasons for judgment, employed the following language, which we adopt as our own, as the views expressed are both clear and forcible, viz.:

“Is undue influence a cause of a nullity of testaments? Undue influence is an expression unfamiliar to civilians. It is borrowed from a system of law not prevalent in Louisiana, and it is there used in the same sense as captation and suggestion in the civil law. Schouler on Wills, pp. 230, 231, Sec. 227.

“When, therefore, plaintiffs in their petition allege undue influence, they must be understood as alleging captation and suggestion. Captation has been defined as the act of one who succeeds in controlling the will of another, so as to become master of it. Captation takes place by those demonstrations of attachment and friendship, by those assiduous attentions, by those amenities, by those caresses, by those ready services, by those officious little presents, usual among friends, and by all those methods which, ordinarily, render us agreeable to others, and enable us to secure their good will. Suggestion is often used as a synonym for captation, but it is applied specially to those means of persuasion employed to alter the will of a testator, and to prompt him to make a disposition different from that which he had in view. Bouvier’s Law Dictionary, verbo Captation; Eurgole, Yol. 1, p. 131.”

An examination of Bouvier fully attests the accuracy of the judge’s definition; and as Abbott’s Law Dictionary gives no definition whatever of the word captation, that of Bouvier is controlling.

Simplified, the question is, whether under the code it was permissible for the plaintiff to make proof of undue influence having been employed by the defendant in superinducing the testatrix to make the testament in his favor, for the purpose .of procuring its annulment.

If the term undue influence ” comes within the meaning of the term “ captation and suggestion,” then the offered evidence came within the reach and prohibition of the cited article'of the code.

When the case was first on trial, the judge then presiding held that an objection then taken to that effect was well grounded, and disallowed the testimony.

And, subsequently, the plaintiffs amended their petition and made the averment -above quoted, of fraud, as having accompanied the undue influence exercised — doubtless with the object of meeting the views entertained by the judge then presiding;, and which'are as follows, viz.:

“Undoubtedly,” said the judge, “undue influence.is sufficient to ■annul a will, when it is proven that undue influences have operated; but undue influences must be indicated in the proceedings by specific acts of malpractice or fraudulent practice, and showing that the intention of the testator was thereby deceived, and that the disposition is therefore tainted with fraud ” — his theory, being that the plaintiff could overcome the prohibition of the code by making specific charges, or facts of fraudulent practices, in the employment of the undue influence ” used; 'or, in other word , the prohibition- of the code is directed against simple, and not against fraudulent captation.

But, after the personnel of .the District Oouit had been changed, the judge taking the bench subsequently entertained a different view— holding that the terms of the code are general, and not susceptible of the distinction his predecessor had given it. In the “reasons for judgment” the trial judge assigned, this .question was carefully and comprehensively treated, and they are well worthy of reproduction. Said-he: • . -.

“ Art. 1492, R. C. C., provides that ‘ proof is not admitted of the dispositions having been made through hatred, anger, suggestion or captation.’ The language of this article is plain and unambiguous, and the rule of exclusion which it formulates would seem to admit of no exception. But counsel for plaintiffs, arguing in the same manner as my esteemed predecessor, contend that Art. 1492 is merely declaratory of what the jurisprudence was in France formerly, and what it was in the State of Louisiana at the time of its adoption, and that it prohibits the evidence of simple captation and suggestion, but does not embrace questions of fraudulent captation or fraudulent suggestion.

When this argument was first addressed to me, impelled by a sense of deep respect for the great erudition and the ponderous logic of the magistrate by whom it was advanced, I was inclined to concede its soundness. Further reflection, however, and a careful and searching review of the French commentators have led me to a different opinion. I find that from time immemorial, under the ordinances and customs of Paris, captation and suggestion were causes of nullity of testamentary dispositions; but at no time was the nullity decreed, unless captation and suggesti n were accompanied by fraudulent practices capable of leading the testator into almost invincible error regarding those in whose favor he wished to make his will. The reason was that, albeit the kindly offices, tlu cajolery, the flattery, the presents, and the many other demonstrations of feigned friendship usually resorted to by cupidity, are repugnant to honesty and good conscience; still human laws have not affixed a penalty thereto They could not do so for captation, because the springs of human action are hidden in the secret of the heart; because true devotion, sincere friendship and the sacrifice of one’s future to an aged relative or to a suffering being abandoned by others, too often bear the semblance of low sycophancy, of simulated friendship and of interested self-abnegation; because benefactions should not, like contracts, be measured by the principles of exact justice; and because it is ofttimes useful for individual happiness that private interest should make closer the ties of affection, that sickness, infirmity, old age, incompatibility of temper would otherwise destroy. Nor could human laws visit a punishment upon suggestion, because suggestion is nothing more than persuasion; because one may seek advice from strangers in making liberalities, as well as in business affairs; because the obsessions of a stranger, although pressing and importunate, are nothing more than obsessions, and far from destroying the will of him who yields, tend to shape it; because an act is not the less voluntary for being or ginally suggested by . some one else. Ooin d’Lisle, Don. et Test., pp. 84, 85.

“ But when the captator coupled his manoeuvres with fraudulent practices; when he resorted to defamation and calumny to estrange the testator from his rightful heirs; when he used unlawful means to keep them aloof; when he confined the testator and denied him intercourse with the outside world, then the law, considering that fraud was the cause, while captation and suggestion were merely the means, intervened and directed the annulment of the tainted disposition. Demolombe, Don. et Test., Yol. 1, p. 413.

“Such was the established jurisprudence in France when Napoleon, first consul, being desirous of codifying the laws of that great nation, confided this task to a government commission composed of Tronchet, Portalis, Mallville and BigotrPreameneu. In the projet prepared by these eminent jurists there was an article in th?se words: La loi n’admet point la preuve.que la disposition n’a ete faite que par haine, colére, suggestion, ou captation.’ It was thereby intended, as stated by the commentators, to drain the source of those scandalous suits which recurred so frequently before the courts. Not that French judges readily received evidence of captation and suggestion; not that litigation of that character was encouraged or looked upon with favor; on the contrary, although the suits were numerous, so difficult was it to make satisfactory proof that instances of success were very few. But the accursed greed of gold, once it has entered the human heart, rules it with relentless sway, and stops at nothing short of crime to save itself; and disappointed relatives, whose long-cherished hopes of securing a fortune have been rudely dispelled, will not hesitate, when they can not attack a will for any other cause, to trump up a charge of captation, and upon the most frivolous pretext exhume the testator and heap upon Ms memory the most insulting accusations. His private life, his habits, his secret thoughts, nothing is respected, but everything assumes, at the will of an ardent polemic, the most odious coloring. (Mr. Attorney General Delangle before the Oourt of Cassation.) This is precisely what the framers of the projet of the Oode Napoleon wished to prevent. But when the article of exclusion prepared by them came up for discussion in the government halls, it met with strong opposition. The argument which claimed that, if it was inserted in the code, fraud would find in the law itself a title of impunity and would be encouraged and emboldened, finally prevailed. The measure was voted down. The Code Napoleon remained silent on the subject, and, in the absence of contrary legislation, the jurisprudence which allowed proof of captation and suggestion only when coupled with fraudulent practices, continued undisturbed. Bédarride, Dol et Fraude, Vol. 1, p. 392, No. 389; p. 396, No. 392. Demolombe, Don. et Test., Vol. 1, p. 409; par. 382, p. 410; par. 384, p. 412, par. 385, p. 413; par. 386. Grenier, Traite des Donations, pp. 423-4-5-6. Zachariæ, Vol. 5, pp. 50-51. Laurent, Vol. 2, Editio Parva. Furgole, Vol. 17, p. 133.

“ It thus appears that Art. 1492, R. C. C., was not taken from the Code Napoleon. Itis a literatim translation of the article contained in the projet of Tronchet and his colleagues. It was borrowed therefrom. It was first inserted in the code of 1808, known as the Old Oode. At the time that code was adopted, March 31, 1808, the Oode Napoleon, then called the Oivil Code of France, had been in force for more than four years, and the makers of our code had had the benefit of the debates which preceded the enactment of its prototype in the French council of State and legislative body, so that when our legislators embodied in the Old Oole the provision that proof is not admitted of captation and suggestion,’ they must be held to have done just what Tronchet and the other authors of the projet desired, and what the French law-makers declined to do — i. e., close the temple of justice against all suits of nullity for cause of captation, whether unaccompanied or coupled with fraudulent practices. Their intention could not have been merely to declare what was the jurisprudence in France or in Louisiana at the time; on the contrary they must have meant to protest against it, to condemn it and to forever banish from the courts a species of litigation which, except in very rare instances, originates in disappointment, rancor or covetousness; which offers a strong temptation for perjury and subornation of perjury; which feeds on scandal and calumny, and which penetrates within the charnel house to pour obloquy upon the ashes of the departed. Our State reports, be it said to the credit and honor of our people, and in proof of the wisdom of our law-givers, are almost barren of cases of this description. The only two to which I have been referred, 9 La. 469 and 35 An. 163, appear to be in accord with the viewshere expressed. I am, therefore, clearly of the opinion that whether undue influence be understood to mean simple captation and suggestion, proof of neither being admitted under the textual provisions of Art. 1492, 0. O., defendant’s exception of nt cause of action in this respect, too, is well founded and must be maintained.”

Following the course of the judge’s argument we find it fortified both by the history of the article under consideration and by the two decisions to which he refers.

The article appears in the Code of 1808, exactly in its present form. Vide Art. 18, p. 212, Digest of the Civil Law.

Then as now the article is found in the chapter that treats of the capacity necessary for disposing of and receiving by donation inter vivos or mortis causa. ’ ’

Evidently no change of purpose has taken place on the part of the Legislature since the establishment of the State government in re - spect to this article, and as there is no corresponding article in the French Code the conclusion seems to be irresistible that the framers of the Code of 1808 contemplated and intended a change in the body of the law, and this necessitated a departure from the French jurisprudence on the question of captation and sugg stion. Consequently a review and discussion of that jurisprudence, and an examination and comparison of reatises of French authors on the question, would not subserve any useful purpose, but, on the contrary, it might serve to confus 3 the discussion and divert attention from the simple theory of our own code to the duplex theory of captation and suggestion, that prevails in France — fraudulent captation and suggestion being regarded as a dependency of the statutes of fraud.

This question arose in an early case — Chamdon’s Heirs vs. Bongue, 9 La. 468 — wherein the will was attacked on various grounds, and inter alia, on the ground that the testament was not free and was the result of fraud, and of moral constraint, and the court disposed of the question by making the statement that it is no longer permitted by our law to attack a testament on the ground that its dispositions were the result of suggestion, hatred, anger and captation, Art. 1479” —thus indicating very clearly that the terms of the code are to be strictly construed. And what is particularly noticeable in the opinion in that case is the close similarity of the facts therein given to the case stated by the plaintiffs.

In Godden’s Heirs vs. Executors of Burke, 85 An. 160, the identical question here presented was there examined and decided — the will being attacked on the ground that it was obtained through undue influence, and the defence being that such charge is not susceptible of proof under the law of Louisiana. The court disposes of the issue thus squarely raised in the following clear and concise terms, viz.:

“ It is an error to suppose that this article (1492 R. C. C.), which was first incorporated into the Code of 1808, and which finds no place in the Napoleon Code, was designed to prevent the admission of proof to establish the circumstances which transpire at the making of an authentic will, under charges tending to the nullity of the act, for want of compliance with the exigencies of the law. The prohibition embodied in that article against the admissibility of certain proof was intended to apply only to facts arisen prior to the makiug of the will and to close the door effectually against inquiries into the motives which animated the test'tor in disposing of his property.” Or, in the further language of the court, the object of the compilers of the code was to preclude all evidence of acts, conduct or motives of the testator antecedent to the making of the will, as exercising influence over the testamentary dispositions therein contained; but same n ere not intended to prevent the admission of proof of what occurred at the making of the testament.

For, say the court, unless it was so, it would ever be impossible to prove that the dictation was the result of intimidation, fraud, or some other ill practice; orto establish some other fatal ii regularity.” The test which that decision establishes is that the date at which the undue influence is exercised, and the object it is designed to accomplish, and not to the character of the undue influence used, must control. — the purpose of the prohibition being “ to close effectually the door against inquiries into the motives which animated the testator in disposing of his property.”

In a recent case, the Illinois court had under consideration a precisely similar charge of nullity against a will — Pooler vs. Christman, 84 N. B. Rep. 58 — it being alleged by the complainant that the testator, in executing the (will) was, in fact, under improper restraint and .undue influence from the said acts and fraudulent practices” of the persons named.

In disposing of that question the court said that the first cl use of the instruction (to the jury) directing them that fraud and undue influence which should render a will invalid must be connected with the execution of the will, and operating at the time the will is made, is sustained by Brownfield vs. Brownfield, 48 Ill. 147,” and other cases cited; and that opinion is strictly in accord with that announced in the Burke case.

The supplemental petition will be scrutinized in vain for any allegation to the effect that ‘ ‘ undue influence ’ ’ was by the defendant exerted upon the testator at the time of making the will, to-wit: the 9th day of July, 1889.

On the contrary, the averment is that defendant “ employed unlawful power over his wife’s testamentary intentions to defeat her will.” Also, that “in her weak condition of health she was subjected to constant surveillance and restraint up to her last moments to such an extent as to deprive her of, and destroy her testament:ry capacity.” Now, in view of the fact that the will was executed on the 9th of July, 1889, and the testatrix died on the 11th of October, 1891 — two years and three months subsequent — any evidence in support of the charge made is impertinent and inadmissible.

Our conclusion is quite clear that this exception of the defendant was well taken, and in sustaining it the judge-a quo decided correctly.

IV.

The charge of the supplemental petition at which the third exception is directed, is that the testamentary disposition in defendant’s favor was obtained by means of the ascendancy he had acquired over the testatrix in his character as minister of religious worship whilst he was in attendance upon her during the illness of which she diéd— plaintiffs’ averment being “ that the defendant was, at the time of his marriage with the testatrix, and at all times since, professionally attending her as a minister of of religious worship during the sickness of which she died,” and that the disposition of the will in his favor “was the result of the abuse of the ascendancy which he had obtained over her in the exercise of his calling,” etc.; the defendant’s objection to evidence in support of it being that same is barred by Arts. 1489 and 1492 of the code.

Both of these articles occur in the same chapter and title of the code which treat of the capacity of disposing and receiving by donations and testaments. Therefore it will be unnecessary for us to rep eat anything that has been said in regard to the admissibility of evidence to prove that a testament was made through suggestion or captation on the part of a beneficiary therein, and we will consequently confine our argument to the effect - of Art. 1489, upon theaverment and proofs of the plaintiffs.

The following is the .text of that article, viz.:

“Article 1489 (1476) : Doctors of physic or surgeons, who have professional!y attended a person during the sickness of which he dies, can not receive any benefit from donations inter vivos or mortis causa, made in their favor by the sick person during that sickness. To this, however, there are the following exceptions:

“1. Remunerative dispositions made on a particular account, regard being had to the means of the disposer and to the services rendered.

“2. Universal dispositions in case of consanguinity. The same rules are observed with regard to ministers of religious worship.”

Plaintiffs’ theory is that the terms of the article absolutely exclude a minister of religious worship, professionally attending the testatrix during the sickness of which she dies, from receiving any benefit from testamentary dispositions made in his favor during that sickness, and their contention is that th i presumption of the code is a conclusive presumption of law that can not be destroyed by countervailing proof, aud that the beneficiary minister, in order to sustain a legacy in his favor, will not be allowed to prove that the reprobated disposition was voluntary.

Per contra, the argument and contention of defendant is that Art. 1489 must be construed with Arts. 119 and 1749 of the Oivil Code,, and that thus construed an exception is created in favor of the husband of the testatrix, notwithstanding he be a minister of the gospel.

That is to say, that although, as a minister of the gospel, a donee under the testament, has professionally attended the testatrix during the sickness of which she afterward dies, he willnot be deprived of any benefit from donations made in his favor during that'sickness, if he be the husband of the testatrix, the law declaring that the husband owes to his wife “fidelity, support and assistance ” (R. C. C. 119) ; and plaintiffs’ averment being, that the defendant was, at the time of his marriage, and since, professionally attending (the testat ix) as a minister of religious worship, during the sickness of which she died,” etc.

Counsel for defendant has very succinctly stated the theory of the defence in his brief as follows, to -wit:

“The conclusion to be derived from consideration of the different articles of the code appears to be an unavoidable one. Mutual fidelity, support and assistance are enjoined by Art. 119 upon the husband and wife. Their relations, each to the other, presuppose as much. Such being the nature of the article, it would be inconsistent with it, to affect with incapacity the particular spouse, who may have bestowed care and given comfort in affliction to the other. In point of fact, to do this would be to condemn and punish the discharge of duty.

“The civil law does not do violence in this way to the natural law. On the contrary, the natural law introduces the civil law and travels along with it. The influence of the husband over the wife, when he happens to be a minister of the gospel, is no more to be apprehended than is any other devoted and pious relation of human existence. The influence in question, if subversive of liberty at all, should be guarded against, not only in case of illness, or when the husband appears in this or the other part in the drama of life, but must be controlled by some rule of daily use and of universal application.

“ It is just this which the law has attempted. It would have been unwise, if not impossible, to forbid all donations or acts of liberality between spouses. The code, therefore, has taken the proper precaution in the premises, by declaring that all donations between married persons, made during marriage, should remain revocable. R. C. 0. 1749. It is, then, in the proper interpretation of Art. 212 and of Art. 1749, and in the application and enforcement of both of the articles, to the facts and circumstances as they arise, that the security of the married parties is to be sought, and not in the false theory upon which plaintiffs have proceeded, of danger to society from the devoted relations of man and wife.”

Our 'attention has been attracted to other articles of the code as illustrative of the reciprocal rights of the spouses in the matter of their power to dispose of property by gratuitous title generally.

One of them provides that the spouses “ can, by marriage contract, make to each othev, reciprocally, or the one to the other, what donations they think proper, under the modifications hereinafter ex-presed.” R. 0. C. 1743; the corresponding article of the French Gode being 1091.

Another of them provides that ‘ one of the married couple may, either by marriage contract, or during- the marriaga, give to the other, in full property, all that he or she might give to a stranger.” R. O. O. 1746; the corresponding article of the French Code being 1094.

And the support which the provisions of these articles bring to the defendant’s theory is that, notwithstanding the law imposes upon the husband the duty of fidelity, support and assistance, as a debt of the spouse, yet it, at the same time, permits the wife, during the marriage, to make a donation to the husband, in full property, of all that she might give to a stz-anger — thus illustrating the theory of the law to be, that the duties and relations of the spouses inter se do not operate as an obstacle to the exercise of testamentary capacity by one in favor of the other, and that this theory, when construed with the provisions of Article 1489, negatives its denunciation in respect to a minister of religious worship when he is at the same time the husband of the testatrix.

These articles are in keeping with the provisions of Article 1749, making donations, whether inter vivos or mortis causa, always revocable, and conferring upon the wife the power of revoking “without her being authorized to that effect by her husband or a court of justice,” this free and unrestricted power of revocation being the fair equivalent of the power of testamentary disposition.

Our attention has also been called to the fact that Art. 212 of the French Code cozu’esponds with Art. 119 of our own code; Art. 909 of the former with 1489 of the latter; Art. 1091 of the former with Art. 1744 of the latter; Art. 1094 of the former with Art. 1746 of the latter, azid Art. 1096 of the former with Az't. 1749 of the latter — thus rendering an examination of the French jurisprudence permissible, if not necessary.

Referring to the treatise of Marcadé on Donations and Testaments, we find his commentary on the foregoing articles of the French Code to favor the defendant’s theory — from which his counsel’s argument is chiefly drawn — and, inasmuch as the learned judge of the Distr.ct Court accepted this author’s interpretation of the French law, and, in connection with his own “reasons for judgment,” has furnished a translation of the text, we have reproduced -it, as follows, to-wit:

“ Art. 1489, R. C. C., provides that doctors of physic or surgeons who have professionally attended a person during the sickness of which he dies can not receive any benefit from donations inter vivos or mortis eausa made- in their favor by the sick person dui’ing that sickness. To this, however, there are the following exceptions: (1) Remunerative dispositions made on a particular account, regard being had to the means of the disposer and to the services rendered. (2) Universal dispositions in case of consanguinity. The same rules are observed with regard to ministers of religious worship.’ Does the incapacity created by this article attach to the physician or minister, who is also the husband of the testatrix? The question is new in our jurisprudence, but not so in Prance. Art. 909 of the Oode Napoleon is, in terms, identical with our Art. 1489. In his commentaries thereon, Mareadé, with his usual lucidity of exposition, says: ‘ All authors concur in the opinion that the prohibition of Art. 909 is not intended for the doctor or minister of worship who may be the husband of the person who has made her will during the sickness of which she died, and it has-been so decided by the Court of Cassation on August 80, 1808.

“ ‘And, in fact, as Art. 212 imposes upon each spouse the obligation of personally assisting the other, to strike the husband with incapacity for having given his care and services to his wife would be to punish him for having performed his duty. Besides, between spouses, the captation, the extreme influence of one over the other, is not more to be feared in case of sickness and because of the services which the husband may render as a doctor or as minister than it is in all circumstances of life. It is every day^ and in all those moments of outpouring of the heart and of confidential intercourse, that that influence subversive of freedom is to be dreaded. Hence, between spouses, it was not a special rule founded on' sickness or on this or that quality of the husband that should have been established. It was by a general rule of daily application that the effects of the too great influence of one spouse over the other had to be prevented, and this is what the law has done. . But as it was impossible to prevent all liberalities between husband and wife, the code has deemed it a sufficien safeguard to declare that every gratuitous disposition between spouses shall be revocable at the will of the disposer, as in cases of testaments. And even though the marriage of the doctor or of the minister should have taken place during the malady of which the testatrix died, and in the course of which liberalities were made,it is clear that, inasmuch as the marriage is valid and must produce all its effects, the rules which we have indicated would apply, since they are among the effects of marriage. But this rule is subject to exception if it be shown by the heirs of the testatrix that the marriage was contracted solely to escape the prohibition of our article; in that case the liberalities would be annulled at the death of the sick person, because the infamous conduct of a man who has entered into the holiest of covenants for the sole purpose of accomplishing his shameful designs could not relieve him of his incapacity under the law. The principle and the exception are justly consecrated by jurisprudence.’ Vol. 3, p. 408, No. 530.”

The judge also makes quotation from Demolombe to the following effect, viz.:

“By the terms of Art. 212 the husband owes assistance to his wife. Thence flows the duty and the right to give her his services during sickness. It would be revolting to say that the husband should then keep away from his wife and abandon her, in order to preserve his title to the evidences of her tenderness and gratitude. Ergo, since the husband who attends or who assists his wife in sickness by so doing fulfils one of the noblest duties of marriage, it is impossible that the legislator should have stricken him with incapacity by reason of the very accomplishment of that duty. And the legislator has not done so. On the contrary, he has by special provisions regulated what liberalities may be made between spouses, whether by marriage contract or daring the marriage. Those provisions embody a complete order of principles on that subject, and apply in all cases, and to all husbands without distinction, whatever be their calling, doctor, minister of worship, or other, and in whatever situation they may be. Whence it follows, as has been said by the Oourt of Cassation, that it was not for husbands that the prohibition contained in Art. 909 was established.” Demolombe also holds that the fact of the marriage having been solemnized and of the testament having been made during the last sickness of the testatrix does not alter the rule; provided, however, that the physician or the minister of worship has not married the sick person for the sole purpose of fraudulently eluding the incapacity resulting from his calling. Demolombe, Don. et Test., Vol. 1, p. 556 et seq., No. 543 et seq.

To the same general effect are the following authors, viz.: Vazeille on Donations and Testaments, Vol. 2, p. 135; Toullier, ditto, Vol. 3, p. 29, No. 66; Troplong, ditto, Vol. 2, pp. 234, 235; Coin d’Lisle, ditto, Vol. 1, p. 106.

This theory is enforced by Demolombe in the following terms, to-wit:

1. Aux termes de Particle 212, le mari doit assistance á sa femme; et de la résult le devoir et le droit anssi sans doute! de lui donner ses soins dans ses maladies; il serait révoltant de dire que le mari devrait alors s’éloigner de sa femme, et la délaisser, précisément afln de conserverses titres aux témoignages de sa tendresse et de sa reconnaisance. Done, puisque le mari, qui soigne ou qui assiste sa femme, remplit ainsi Pun des plus nobles devoirs du mariage, il est impossible que le législateur l’ait frappé d’incapácité á raison méme de l’accomplisement de ce devoir.

2. Aussi, n’en est-il rien; le législateur au contraire, a réglé par des dispositions spéciales, cé vui concerne les libéralités entre époux, soit par contrát de mariage, soit pendant le mariage (Art. 1091 et suiv) ; ces dispositions forment un ordre de principes eomplét sur cette matiére, et qui s’appliquent dans tous les cas et á tous lesmaris sans distinction, quel que soit leur état, médecins, ministres du cuite ou autres, et dans quelque situation qu’ils puissent se trouver; et il en résulte, comme la Cour de Cassation l’a dit forb justement, que ce n’est pas pour époux qu’a été établie la prohibition contenue dans Particle 909.” Demolombe, p. 556, No. 548.

That author expresses the idea to be, that it is not the minister of religion who would be deemed incapable of receiving testamentary dispositions, but the husband, if the strict interpretation of Article 909, C. N., contended for, prevails; as, in such case, the husband’s influence is far greater over the wife than that of the minister can possibly be. Laurent, Vol. 2,'p. 484.

In French jurisprudence Rey vs. Broisin is considered the leading case, and upon which the discussions of French authors have chiefly turned. Vide, 7 Journal du Palais, p. 121.

Subsequent decisions of the Court of Cassation, while differing therefrom in some respects, have, with general unanimity, affirmed the principles announced therein. Bonnet vs. Dusordet, 15 Journal du Palais, 689; Dusordet vs. Bonnet, 14 Journal du Palais, 592; Boyer vs. Damiens, 17 Journal du Palais, 580.

The only exception stated in those decisions to the applicability of Marcadé’s theory is that of a man who marries a woman in fraud of the law, or with the fraudulent design of defeating the incapacity established by law.”

In Rey vs. Broisin, the Court of Cassation say:

“ Whereas, the Civil Code, by Art. 1094, empowers the spouses to give to each other reciprocally 'within the limits therein set forth all that they may dispose of in favor of a stranger; whereas, Art. 212 imposes upon the spouses the mutual duties of fidelity, support and assistance, whence it follows that it was not for husband and wife that the prohibition of Art. 909 was established; and, whereas, the application of that prohibition was not formally asked before the lower court, as should have been done, the appeal is dismissed,” .etc.

In that case it appears that a girl who was afflicted with phthisis, married her attending physician. A few weeks after the marriage ■she made a public will by which, after making a few special legacies, ¡she left the bulk of her fortune to her husband as universal legatee. Her brothers brought suit to revoke the will on the grounds, first, that the marriage was a simulation intended to evade the provisions of the law relative to the prohibition against physicians attending persons during their last illness; second, that even if the marriage be valid and legal, the husband being at the same time the physician attending his fiancé, the prohibition of the law invalidates her subsequent testamentary disposition in his favor. It was upon these propositions that the judgment of the court was pronounced.

In Bonnet vs. Dusordet, 15 Journal du Palais, 689, the Court of Cassation held that, if, under Arts. 1091 and 1094 of the Civil Code, the physician who treated a person during the sickness of which she died, and who married her during the course of her illness, can legally take donations made to him during that interval, it is because these donations are presumed to have been freely made by reason of conjugal affection; but it is otherwise when the donations are shown not to have sprung from this affection and free consent, but that they had no other cause than the influence which the physician had over the patient, and the abuse of this influence by the physician, to obtain these donations from her during her last moments.

It was upon such a state of facts as is contemplated in this last paragraph having been alleged and proven that the donation under consideration in that case was revoked and set aside.

In Dusordet vs. Bonnet, 14 Journal du Palais, 599, the court held that, conceding, in the first place, that it clearly appears from all the evidence in the case that the marriage contracted on the 14th of ■October, and the subsequent universal testamentary bequest of the 18th of the same month-, took place during the sickness of which the testatrix died; and, in the second place, that the husband had been originally the only physician of the widow whom he married, and, after he had married her and called in other physicians, that he was the habitual physician and attendant in whom she placed confidence, and that he was thus brought within the prohibitive terms of Art. 909 of the code — hence it was impossible for the legatee to be released therefrom by means of a marriage which was evidently contracted entirely for the purpose of escaping from that prohibition. In that case the donation was annulled and set aside — the wife having died just one month and two days after the marriage.

In Boyer vs. Beaufort, 17 Journal du Palais, 581, the court had under consideration an ante-nuptial marriage contract which the collateral heirs sought to revoke on the ground that the husband of the deceased having attended her as physician previous to her marriage while she was suffering from the illness of which she died, he was incapable of receiving anything from her by such contract. Notwithstanding the court sustained the defendant’s plea of ten years’ prescription — treating the action as one of rescission — yet they held that if the law prohibited physicians from receiving donations from their patients, it was only in cases where a dangerous influence had brought about these donations, and not where they'were freely and voluntarily made, in view of a marriage which actually took place subsequently — the donation, in this last event, possessing a legitimate cause, was secure from attack.

Vazeille defines the articles of the French Code thus:

“Article 909 does not make an express exception for the husband, who being a physician gives to his wife the aid and assistance of his art; but Article 212 establishes between spouses the reciprocal obligations of aid and assistance, and Article 1904 authorizes them to make donations to each other. From all which it has been properly concluded that the husband, who is a physician, performs a duty in employing his art and in giving his attention and care to the treatment of his wife when sick, and that his profession of physician or surgeon ought not to make him lose the right which all other husbands have to the donations from his wife. But it has been held that a marriage which took place during the sickness of the wife for the purpose of getting rid of the prohibition of the law ought not to have the effect of validating the donation otherwise void.” 2 Vazeille’s Donations and Testaments, p. 185; C. N. 909; vide M. Grenier, No. 127; Toullier, No. 66; Duranton, No. 257; Dalloz, Chap. 2, Sec. 7, No. 9.

As Duranton has well said: “Unworthiness should nob cover or shield incapacity.”

Toullier states that physicians who give to their wives the care and assistance of their art are excepted from the prohibition. Article 1094 gives the spouses the power of giving and receiving, without excepting hpsbands who are physicians. Under Article 212, spouses owe to each other reciprocally aid and assistance. This is sufficient to establish or prove that the general prohibition of Article 909 does not strike or attach to husbands who are physicians. 3 Toullier’s Donat, and Test., p. 29, No. 66.

The foregoing ample citations from the French Code and jurisprudence, as well as from the treatises of French commentators on the Code Napoleon, clearly show their concurrence in text, as in opinion, with our own code and jurisprudence.

After a careful examinaron of this interesting subject, in all of its bearings, we have reached the same conclusion at which our learned brother of the District Court arrived — that the plaintiffs’ complaint of the testamentary disposition being null, on account of the supposed ascendancy the defendant had acquired over his deceased wife, by reason of the influence he exerted over her as a minister of religious worship, is barred by the provisions of Articles 1489 and 1492 of the Revised Civil Code.

Y.

Considering the authorities cited and the views that are expressed in paragraph 3, supra, to the effect that the framers of the code intentionally closed the portals of justice against “ all actions of nullity for cause of captation, whether unaccompanied or coupled with fraudulent practices,” it is immaterial for us now to inquire whether the allegations of plaintiffs’ petition in this regard are full and complete, or vague and indefinite. And it is likewise equally unimportant for us to inquire whether the intervention is barred by certain antecedent judicial admissions or not.

Altogether the case has been examined and disposed in a manner comporting with the important questions and large values involved, and the high character of the defendant as a minister of religious worship; and we feel justified-in saying that none of the charges preferred are tenable in law.

Judgment affirmed.

Rehearing refused.


source: Caselaw Access Project

license: Public Domain

text:
    No. 11,496.
    State of Louisiana vs. Leonard Lee et als.
    1. Whenever a plea of autrefois acquit is demurrable It is triable by the judge and not referable to the jury.
    2. The allowance of a severance of trial is matter within the discretion of the judge, except evidence discloses that different defendants have antagonistic defences.
    3. An indictment may be fatally defective quoad a charge of murder and perfectly good quoad a charge of manslaughter.
    APPEAL from the Ninth Judicial District Oourb, Parish of De Soto. Hall, J.

      M. J. Cunningham, Attorney General, J. B. Lee, District Attorney, and Scarborough & Carver, of Counsel:
    When two persons are killed, whether by the same or different acts, the two killings constitute different crimes which can only be prosecuted separately. Wh. Or. PI. andPr., Sec. 468: Wh. Or. Ev., Sec. 587; 34 An. 1079.
    A judge can be lawfully recused only for one of the causes fixed by law. C. P. 338; Act 40 of 1880, p. 38, and Act 35 of 1882, p 48 ; Const. 109 and 112.
    When a judge is recused, whether of his own volition or on motion of one of the parties or by consent, for a cause not authorized by law, all subsequent proceedings under the lawyer appointed to act as special judge are illegal and absolutely null and void. 27 An. 663, 689; 9 An. 62.
    A conviction or acquittal on a trial before a court so constituted does not furnish ground for the plea of autrefois.

    A conviction or acquittal of the murder of one person does not furnish ground for the plea of autrefois when prosecuted for the murder of another person.
    Parties jointly indicted not being eniitled to a separate trial, as a matter of right, the district judge is vested with the legal discretion to grant or refuse a severance applied for by one of them, and his action will not be reviewed on appeal.
    An indictment for a graver offence which includes a lesser may be good for the lesser although bad for the graver; and in such a ease, where -the accused is convicted of the lesser offence, a motion in arrest should be overruled. 35 An. 1058; Wh. Or. PI. and Pr., See. 158; Wh. Or. Ev. 144, 138; 18 N. H. 563.

      Goss & Parsons and J. C. Egan Attorneys for Defendants and Appellants :
    In an indictment for murder malice aforethought must be specially charged. State vs. Green, 42 An. 642; 37 An. 776; Whar. Cr. PI., Sec. 258; Rev. St., Sec. 1048.
    When the objections urged in a motion in arrest of judgment are defects of substance and not errors of form they are not waived by pleading nor cured by verdict. 11 An. 648; 14 An. 786; 32 An. 562.
    In an indictment nothing can be taken by intendment. State vs. Seay, 3 Stew. (Ala.) 123.
    Whatever is indispensably necessary to be proved to warranr a conviction must be alleged in the indictment. State vs. Wilson, 2 Mill. (S. 0.) Const. 135; State vs. Philbrick, 31 Mo. 401.
    It is a general rule that whatever is essential to the gravamen of the indictment must be set out particularly. Arkle vs. State, 31 Ind. 535.
    Every indictment must contain and set forth all the ingredients of an offence. State vs. Henderson, 1 Rich. (S. C.) 179.
    An indictment must contain a definite description of the crime charged and a statement of the facts which constitute it or judgment will be arrested. Tenn. vs. Fields Mart, and Y. (Tenn.) 137.
    An indictment ought to be certain to every intent and without any intendment to the contrary. United States vs. Forest, 3 Cranch. C. C. 56; State vs. Hand, 6 Ark. 165.
    Certainty is an essential ingredient in all pleadings, especially in • criminal pleadings, where conviction is followed by penal consequences. State vs. Nutwell, 1 Gill. (Md.) 54.
    In an indictment for felony all the facts necessary to constitute the offence must be charged by express averments and can not be left to intendment. Kit vs. State, 11 Humph. (Tenn.) 167.
    The essential averments of an indictment at common law are necessary. State vs. Flint, 38 An. 1288.
    Where one is tried upon the theory that under the indictment he may be found guilty of murder in the first degree, the fact that the jury found a verdict of guilty of murder in the second degree does not cure an error, if any, that the indictment does not properly describe the offence to constitute murder in the first degree. Redus vs. People, 14 P. (Col.) 323.

      An indictment bad for the main offence charged will not support a conviction for a lesser offence which if it were good would necessarily be included. Ter. vs. Dooly, 4 Mont. 295.
    As a general rule whatever objection would have been fatal on demurrer will be fatal on a motion in arrest of judgment. State vs. Gates, 9 An. 94.
    In an indictment intended to be for murder the substitution of aforesaid for aforethought is a fatal defect, and can not be held a clerical error, as it is a variance of substance, nor as such is it cured by verdict and a motion in arrest of judgment will be sustained. 42 An. 644.

      Same counsel on application for a rehearing.
    A plea of autrefois acquit is sufficient that alleges the identity of the offences, and one act as the cause thereof, and the identity of the evidences to be used in both prosecutions. Such plea is not demurrable on its face, and should be tried by a jury, although the two indictments disclose different persons killed. Olem vs. State, 42 Ind. 420, and authorities cited below.
    The rule to determine the identity of the offences and the sufficiency of the plea of autrefois acquit is, that the proof to support the second indictment must be such as would have procured a legal conviction upon the first. A. and E.Ency., Vol. 11, 947; Peop. vs. Barrett, 1 John, 66; Oom. vs. Cunningham, 13 Mass. 245; Hite vs. State, 9 Yerger, 357; Whar. Or. PL, Secs. 456 and 471; 1 Arch. Or. PL and Pr. Í12; State vs Vines, 34 An. 1079; State vs. Williams, 45 An. 936.
    A motion in arrest of judgment and sentence under the conviction for manslaughter of a defendant tried for murder upon an indictment fatally defective, quoad murder, should be sustained, although the indictment was good for manslaughter. Redus vs. Peop., 14 P. (Col.) 323; Ter. vs. Dooly, 4 Mont. 295.
    When the objection urged in the motion in arrest of judgment are defects of substance, and not errors of form, they are not waived by pleading nor cured by verdict. 11 An. 648; 14 An. 786; 32 An. 565.
   The opinion of the court was delivered by

Watkins, J.

Leonard Lee, having been jointly indicted with O. B. Adams, Douglas Carpenter and Bill Adams, for the murder of Patria Cordoway, was convicted of manslaughter and the other defendants were discharged. From this verdict and judgment of conviction Lee appeals, relying upon ain assignment of errors and three bills of exception, embracing the following objections, to-wit:

(1) That the trial court erred in overruling his plea of autrefois acquit; (2) in refusing him a new trial of the aforesaid plea; (3) in disallowing him a severance of trial from the other defendants, and (4) in overruling his motion in arrest of judgment.

I.

The plea of autrefois acquit is predicated upon a previous indictment of Leonard Lee alone, on a charge of the murder of Tom Oordoway, of which he was duly acquitted on the day previous to his indictment in the instant case for the murder of Patria Cordoway. These facts appearing on the face of the two indictments, the controverted question is, whether this plea was one for the judge or jury to decide; and the judge having decided it, defendants counsel assigns his thus deciding as error.

In our opinion the ruling of the court was correct. The question of the sufficiency of the plea was made to depend solely, in the court below, upon the recitals of the two indictments — notwithstanding some other testimony was adduced — thus presenting a question of law.

The plea was filed at the August term of the court, 1893, and overruled. There was no bill of exceptions reserved to the judge’s ruling. The court was adjourned for the term, and the trial of the cause was deferred until the February term, 1894. At this latter term defendant’s counsel filed a motion for a new trial of the plea of autrefois acquit, which had been overruled at the previous term— assigning as error therein that the question was for the jury and that the judge had decided it.

The judge refused to entertain the motion on the ground that his first ruling was correct, and defendant reserved a bill.

We take it to be clear that the same rule obtains with regard to the allowance vel non of a new trial of a simple motion or plea, as of a new trial of the merits of the cause, and, adhering to that rule, we can not reverse the decision of the trial judge, except in case he has committed a manifest error to the injury of the accused. And the ■action of the trial court relative to a new trial can not be examined by this court, unless it is brought before us in such manner as to present an unmixed question of law. State vs. Bass, 11 An. 478; State vs. Horton, 16 An. 309; State vs. George, 21 An. 473; State vs. Smith, 22 An. 468; State vs. Bower, 26 An. 383; State vs. Washington, 28 An. 129; State vs. White, 35 An. 96.

Taking up the question as we find it in the record, an unmixed question of law, and applying' the precepts of our jurisprudence thereto, it is clear that the defendant’s plea of autrefois acquit was correctly submitted to the trial judge, and disposed of by him in the first instance, and hence the view that was entertained by the judge on the application for a new trial of the plea was correct also.

In State vs. Shaw, 5 An. 342, it was held, that “ when the plea of autrefois acquit shows on its face that the offence plead was not the same of which the prisoner was before acquitted, the plea may be demurred to, and it is not necessary to submit it to a jury.” Citing State of Tennessee vs. Hite, 9 Yerger, 357.

In State vs. Helveston, 38 An. 314, it seems that the plea of autrefois acquit was demurred to by the State, tried by the judge, and sustained, and from the judgment the State appealed. But this court, not doubting the jurisdiction of the trial judge to entertain the plea, reversed his finding on the ground “ that the offences charged in the two informations are not the same,” etc.

In thus demurring, the State in that 'case followed the common law practice, for it is stated by Mr. Bishop to be the rule that “if the plea is inadequate in form, or if the two indictments are such that the offences can not be the same, the prosecuting officer demurs.” 1 Bishop’s Grim. Proe., Sec. 817.

And the purport of our decision in the recent case of State vs. Emma Williams, 45 An. 936, is that this is a correct rule and is to be followed.

Mr. Wharton announces a like doctrine. Whar. Crim. Pleading, Secs. 482 and 484.

Looking into the defendant’s plea of autrefois acquit filed in the instant ease, we find it to be alleged that he had theretofore been indicted, tried and acquitted of the murder of Tom Oordoway — referring to the cause by title and number, and averring that the crime therein charged against him is identically the same as that for which he is prosecuted in the indictment in the instant case. But looking into the indictment in the instant case we find the charge against the defendant to be the murder of Patria Oordoway. The two indictments are component parts of the plea, and considering them in connection it is evident that the plea was demurrable, as the crimes charged were not the same.

As this court had occasion to say in quite a similar case:

“ The corpus delicti in each (case) is in every respect distinct and independent.” State vs. Vines, 31 An. 1079.

II.

This point of objection being necessarily involved, in principle as well as in fact, with the first one, the two were taken together and disposed of at one and the same time.

III.

The defendant, Lee, filed a motion, praying for a severance rof trial from his co-defendants, on the ground, maiDly, that his defence was contradictory of that of the other defendants — one of the defendants having, on a former trial, made statements implicating him as a particeps criminis to the homicide; and the trial judge having declined to award the severance, he reserved a bill of exceptions.

It is stated by the judge as a reason why he had refused the application “ that no sufficient ground for the severance was shown. The district attorney states in his evidence on the trial of the motion that he would offer no confession of either of the four defendants indicted as principals, in which either of the others was involved; and this was strictly adhered to throughout the trial,” etc.

The general rule is, that persons jointly indicted are not entitled to a severance of trial as matter of right, though the trial judge may, in the exercise of his discretion, grant a severance. State vs. Leonard, 6 An. 420; State vs. Cozan, 8 An. 109; 1 Bishop Cr. Pr., See. 1018; Whar. Or. PL, Sec. 309.

It is proper for the judge to grant a severance in case the confession of one jointly indicted may implicate both — in case the prosecution intends to offer same on the trial. 1 Bishop Cr. Pr., Sec. 1019; Whar. cr. PL, Sec. 310.

It appears that the district attorney directed the evidence on the part of the State to this exception — disclosing his intention to be, not to make use of any suck confession on the trial, as the defendant apprehended; and it was on that testimony the trial judge rested his declination to grant a severance.

And it is quite apparent that he in no wise abused his discretion in refusing it. ,

IV.

The question that is raised for decision on the motion in arrest of judgment is — the indictment charging the defendant, Lee, jointly with several other persons with the murder of Patria Cordoway, and the averment thereof being that the several parties “ did wilfully, feloniously, and of his malice aforethought, kill and murder Patria Cordoway — ” whether the indictment is fatally defective in a matter of substance, because the singular pronoun “his” was employed, representing only one of the several persons accused.

The trial judge assigns the following reasons why he declined to entertain defendant’s motion, viz.:

“ While the indictment is not good for murder, it is good for manslaughter, for which (crime) the defendant is convicted, and he is without interest to inquire as to its sufficiency for murder, since he is acquitted of that (crime) .”

It is evident that the judge’s ruling was correct. Had all the parties been convicted, or, possibly, if any one of them had been, the indictment would have been held bad, on the authority of State vs. Jones, 45 A. 1454, the doctrine of which case we unhesitatingly affirm.

The case appears to have been correctly disposed of in the court below. Judgment affirmed.

Rehearing refused.