| La. | Oct 15, 1838
delivered the opinion of the court.
The plaintiffs, heirs at law of Ellen Innis, deceased,, are-appellants from a judgment of the Court of Probates, which establishes her last will and testament. This instrument, to which the form of a nuncupative will by authentic act was attempted to be given, is admitted to be invalid as such, but it is contended, that it is good as a nuncupative will, under private signature. The principal objection, is, that it was subscribed by four witnesses only, one of whom was the notary. The appellee’s counsel has contended, that three witnesses sufficedand if more be required, they have shown that as the will was executed in the country, the impossibility or great inconvenience of obtaining them, forms an exception to the general rule.
The will appears on the face to have been executed in the-town of Alexandria, and parole evidence has been introduced
Admitting that the steam-boat, while thus moored, was in the country, and not within the limits of the town, the will has been considered as made in the country. Its date is posterior to the promulgation of the Louisiana Code, which provides that nuncupative wills, under private signature, may be made in the presence of five witnesses, residing in the place, or of seven residing elsewhere. Louisiana Code, article 1574. There is, however, an exception, in regard to wills made in the country. There, three witnesses residing in the place where the testament is received ; or five residing elsewhere will suffice, “ provided, that in this case, a greater number of witnesses cannot be had.” Louisiana Code, 1576.
The counsel for the appellees have contended, that the words, “ in this'case” relate only to a will, in which the witnesses reside out of the place. The appellant’s counsel, on the contrary, urges, that these words relate to every will made in the country; in other words, that the same number of witnesses required to a will made in town, must be had to a will made in the country, unless such a number cannot he had.
The appellee’s counsel has drawn our attention to the corresponding article in the Civil Code of 1808, page 228, ■ article 98, in which the words “ in both cases” are used, instead of the words, in this case, in the Louisiana Code, which excludes the extension of the proviso to a will having three witnesses. The article cited from the old code, treats of wills and codicils, and the words “ both cases” relate to those cases in which a will or codicil is made. We, therefore, conclude, that there is no difference between a will made in town and in the country, as to the number of witnesses required, when that number can be had. This confines our inquiry to a mere question of fact, to wit : whether
One witness has deposed, that there was some difficulty in getting the witnesses which were obtained. There is not a tittle of evidence from which it may be inferred that any attempt was made to obtain more. Nor even that the notary, or any one else, thought that more were necessary ; or that there was any intention of making any other will than a nun-cupative will by authentic act. A notary was resorted to, and he took with him three witnesses, the number required by law, for a will of this kind. Louisiana Code, article 1571.
If a nuncupative will, by private act, had been intended, it is probable that it would have been easy to find on board of the boat, another witness, which, with the other three,, and the notary, would have completed the number required for such a will, even if none could have been obtained in town. There is generally on board a steam-boat, a captain, mate, clerk, pilot and engineer, who, it may be supposed, are able to sign their names. If none of these could be had, and there were no passengers, any of the boat hands might have been taken, for it is not necessary that all the witnesses to a will should be able to write their names. It is difficult to assent to the proposition that the testatrix was alone on board, surrounded only by slaves or females, who cannot be instrumentary. witnesses. We much more readily assent to the proposition of the appellant, that it having been discovered that the will wanted most of the legal formalities necessary for a nuncupative will by authentic act; an after thought occurred, to attempt to support it as a nuncupative will by private act, and for this purpose it has been endeavored to prove, that a greater number could not be had. In this, it appears to us, the appellees have failed.
Our learned brother, in the Court of Probates, has expressed, and with great ingenuity supported a different opinion, but we have not been able to concur with him.
It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be annulled, avoided and