Hart v. Thompson's
15 La. 88
La.
1840
Check Treatment
Morphy, J.,

delivered the opinion of the court.

The plaintiff, alleging herself to be the legitimate sister of Joseph Thompson, deceased, seeks to annul and set aside the last will of the latter, and, in case the will is not avoided in loto, to have certain legacies therein contained, annulled. Of all .the grounds assumed by counsel, it is thought necessary to notice only the following :

1. The insanity o'f the testator.

2. The failure to comply with article 1577 of the Louisiana Code, in properly closing and sealing the will.

3. The fact that the universal legacy to C. H. Dickinson contains a jidei commissum, by which said apparent legatee undertook to keep the property for, and return it to Joseph Thompson, the natural child of the testator.

I. The testimony shows that the deceased was addicted to drinking. He had, say the witnesses, spells of intemperance and spells of sobriety ; that whenever he had been drinking for some time, he turned crazy, extravagant and foolish ; but when sober again, he was perfectly rational. His physician testifies, that when in his fits of intemperance, Thompson became deranged, and delirious from intoxication ; but that afterwards, his mind resumed its strength and business habits fully; that when sober, his mind, knowledge and attainments were above mediocrity ; that he never considered Thompson’s a case of insanity. By other witnesses, he was not thought to be generally of sound mind. He is represented by the witnesses who signed with him the act of superscription of his will,_ to have been, on that occasion, perfectly sober, self-possessed and rational. The parish judge had seen Thompson, and conversed with him several times within the last month previous to'’ the making of his will, and found him of perfectly sound mind before and at *91that time ; but he adds, that some 'months before, Thompson had been quite deranged from the ^effects of hard drinking. The impression made on our minds by the whole testimony adduced on this head is, that even admitting the general insanity of the deceased, which is by rto means satisfactorily proved, there is abundant evidence that he was compos mentis and fully competent to make a will,at the time he appeared before the parish judge for that purpose.

II. It is said that the will is null, because it has not been closed and sealed according to law ; 'no stamp or impress having been used by the testator. To show this, the original paper which enclosed the will has been sent up with the record. It appears to have been closed and sealed with three wafers, but no trace appears of the impression of any stamp. We are told that these expressions dos et scellé, used in the French text of article 1577 of the Louisiana Code, of which the English is a translation, are borrowed from the Napoleon Code, and that to ascertain their meaning we must look to the commentators on that code, and the decisions made under it in France. We find some contrariety of opinion among the French jurists as to their true meaning. The weight of authority appears decidedly in favor of a rigid and literal construction, requiring a stamp or impress to be used in the sealing of mystic wills, and pronouncing their nullity when they are closed only with wax or wafers, without any seal. Others have thought that article 976, of the Napoleon Code, did not contemplate absolutely, and under pain of nullity, that any seal or stamp should be used. Malleville, in commenting upon it, says : “ Suit-ik de ces termes que sur la feuille contenant le testament ou sur le papier qui lui servirá d’enveloppe, le testateur soit obligó, U peine de millilé, d’imprimer un cachet ordinaire ? Je ne le crbis joas. II y a tant de testateurs, sur tout dans les campagnes qui n’ont pas de cachet ou de sceau. Laloi a seulemenl entendu dire que le testament füt clos etfermé de manihre U ce qiPon ne put pas Pouvrir sans déchirer le papier el sans laisser vestige de la ruplure.m Analyse raisonnée du Code Civil, 2e. Vol., page 390, Vazeille, Résumé des Conferences, 2e. Vol. p. 476.

*92We are inclined to adopt the latter opinion. Although not so strongly supported, or so generally received as the other is in France, it comports better with the manners and habits of this country, where the use of seals is rather uncommon, and where we understand the law to have already received this construction in practice. The Louisiana Code, article 1577, does not prescribe how and in what way mystic wills are to be sealed, nor does article 1644, which treats of the probate of such instruments, say a word about the necessity of a seal appearing to have been affixed. It requires only proof of the signatures of the witnesses to the act of superscription, and their declaration that they recognize the sealed packet presented to them as the same one handed to (he notary by the testator as containing his last will. Usage, no doubt, went a great way in France in determining the meaning of the words used in article 976, of the Napoleon Code. The provision itself was taken from the ordinance of 1735, which prescribed that mystic wills should be closed and sealed “ avec les précautions en tel cas requises et accoutumés.” In that country, the use of seals was formerly as general as it is unusual in ours. The danger of the will being changed or altered, is given by the writers as the reason why the impression of a stamp is required. It is said to be a necessary precaution against' the fraudulent opening of (he envelope. This reason is far from being conclusive. The law has not determined what that seal or impress should be. It'has not provided that the seal used shall be described ne varietur in the act of superscription. If, then, no particular seal is mentioned in that act, what protection or security does a seal afford, which can be broken open and replaced by any other seal. This omisssion of the lawgiver, to explain what was the sealing in his contemplation, authorizes us, we apprehend, to take the word in its ordinary acceptation, and as understood by the community generally. Louisiana Code, article 14. Webster’s Dictionary informs us that- fastening with wafers is séaling, and common usage, not only in Louisiana, but throughout the United States, sanctions that use of the word. It is only necessary, then, *93to examine whether the packet has been carefully closed and sealed, and whether it has, in reality, remained untouched. These circumstances are generally attested by the judge of probates in drawing up his proems verbal' of proofs. In the present case, a precaution has been taken by the notary, which seems to us to afford more security than any seal or stamp that could have been used. It was making the witnesses sign across and between the wafers, sealing the envelope of the will so that it could not possibly be opened without tearing or defacing their names. This, we think, was a sufficient closing and sealing, within the meaning of our code.

Sealing and closing a mystic will with wafers, and making the witnesses sign across and between the wafers on the envelope, is a sufficient sealing and closi?ig within the meaning of the law, without the use or impress of a seal. An attorney at law cannot be required to disclose communications of a deceased client, relative to dispositions in his will. There is no distinction between the case where a party continues to be the client of the attorney, and when he is dead.

III. The charge that the legacy to Dickinson was a fidei commissum is unsupported by the evidence. Our attention has been drawn to a bill of exceptions to the opinion of the judge below, sustaining an objection to the testimony of one G. Taylor, who had been the counsel of the deceased. He was called upon to disclose certain confidential communications supposed to have been made to him by his late client in relation to his last will. The judge, we think, decided correctly. We cannot admit the distinction pressed Upon us by appellant’s counsel between the case where a party continues to be the client of the attorney, and that when he has ceased to be his client, at the time the attorney is called upon to testify. We do not think it necessary neither, to exclude such testimony, that the client should be a party to the suit in which it is offered ; nor do we understand why the courts should feel themselves authorized to supply the consent of a client who has died without giving it. Louisiana Code, article 2262.

It is therefore ordered that the judgment below be affirmed with costs.