11 La. Ann. 65 | La. | 1856
(Merrick, C. J., absent.) Betsy Toung died in 1854, leaving two nuncupative wills by public act, one executed on the 17ih of August, 1850, the other on the 12th August, 1854. This controversy concerns the validity of the latter testament.
It was decreed to be null by the District Judge, because he was satisfied that two of the attesting witnesses were not present when the will was dictated to the Recorder by the testatrix.
The instrument itself, which appears to be in due form, declares in the most explicit manner that they were present.
But these witnesses have been called to testify on this point, and they were the three attesting witnesses to the will.
Not one of them declared that all were not present during the dictation.
The testimony is entirely consistent with the hypothesis that they were present during'that period.
The only thing calculated to raise a doubt in the mind is, that after a lapse of seven months, they did not recollect hearing the testatrix dictate the dispositions, but believed they heard her, because they attested the will at the time.
Upon the authority of the case of Macarty, 7 An., 485, this evidence is insufficient to rebut the presumption which exists in favor of the truth of an authentic act executed by a Parish Recorder in solemn form.
As it is intimated on both sides that all the available testimony' was not adduced, we will remand the case out of deference to the opinion of the District Judge upon a question of fact.
It is, therefore, ordered that the judgment appealed from be avoided and reversed, and the cause remanded for a new trial, the appellants to pay the costs of this appeal.
