Succession of Clark

Lea, J., (dissenting.) The able and carefully-prepared opinion of the Chief Justice has failed to convince me that the document purporting to be the last will and testament of Daniel Clark should be recognized as such. This case turns principally upon the solution of a legal proposition, which has been correctly stated in the opinion which has been read — to wit: Whether the provisions of our Code in relation to the proof of wills “ are merely directory,” and “ the courts have power, in certain cases where the required proof is wanting, by reason of accident, to avail themselves of secondary proof — viz., the next best *132 of which the nature of the case will admit.” It is urged, and the decree of the court has decided, that a distinction is to he drawn between the law regulating the execution of wills, and that which prescribes the manner of proving them. For instance, the law is imperative that an olographic will should he dated, and it is conceded that no amount of testimony, however conclusive, both as to the fact and even the precise date of its execution, will supply the want of a date; but tho same law, though in a different article, has declared that an olographic will must be proved by two witnesses, who possess certain qualifications, and who derive their knowledge from a particular source. This part of the law, it is decided, is not imperative, but directory, and is subject to the application of the ordinary rule of evidence — viz.: that when the best evidence is not attainable, the next best may be resorted to. A single remark made by the organ of the court with reference to the proof of the will of Maria J. Robert, (see 2d Rob., p. 432,) appears to be the basis upon which much of the reasoning in this case rests. The court remarked in that case that Articles 1648 and 1649 were not negative laws; but an examination of the case shows that this remark had no necessary logical connection with the conclusion at whieh the court arrived. The decision in that case I have no doubt was correct, not because these articles were not negative in their character, but because in the nature of things, so far as they were dispensed with, they had no application to the case in hand. One of the parties was seeking to prove a will registered in France — the laws of that country prohibiting a removal of the original. It was held that that portion of the articles referred to which required the production of the will was not applicable. It was in this connection that the learned judge who rendered the opinion made the remark that these articles were not negative; but no such proposition was necessary to his conclusion. It appears to me that it was a case in which a negative law was not applicable. So in the case of Eubank, recently decided, which is quoted by the Chief Justice as being one “wherein a witness was permitted to testify who did not possess the qualifications required by Article 1684 of the Civil Code.” The only question was, whether a woman could be one of the witnesses to prove an olographic will. It was held that she might be, and that Article 1684, which prescribes that no woman shall be a witness to a will, has reference exclusively to subscribing witnesses, but had no application to the proof of olographic wills. I have examined the decision with care, and I have entirely misunderstood it if either the learned judge who wrote it, or the court which assented to it, intended to sanction the doctrine that a witness should be permitted to testify who did not possess the qualifications required by law. Again, the case of Thomas v. Thomas, referred to, was one in which the ordinary rules of evidence regulated the proof of the contents of a lost will, but an examination of the case shows that it had nothing to do with the probate of a will. In a question involving title, proof was offered, not to have a will probated, but to establish the contents of a will which had been probated, and which, after its probate had been lost in the parish judge’s office, it was held that such a case was to be regulated by the ordinary rules of evidence. No question was presented with reference to the substitution of those rules for the positive provisions of the Code. Without entering into a more protracted examination of the cases referred to, I may be permitted to say that in none of them, in which the pleadings call for it, have I found a recognition of the doctrine that the articles *133 of the Code regulating the proof of wills could be set aside or dispensed with, as not being imperative and prohibitory. And were it otherwise, I should consider the doctrine one which no precedent could consecrate. Laws, whether directory or prohibitory, are alike entitled to obedience; different consequences may attach to the violation of these laws, but though cases may occur to which they are not applicable, laws can never be dispensed with except by a power which is above the law, or one which violates it. Now, it appears to me that the character and meaning of the law may be determined by a reference to its object. If the object of the law in reference to the proof of wills was to regulate the measure of evidence only in cases where that measure was .attainable, then it is evident that it is mere surplusage. A law which prescribes that a certain amount of proof shall be required to establish a will, provided the applicants can produce it; and if they cannot procure it, that they may proceed to prove it in any other manner which may be satisfactory to the magistrate, carries within itself an inherent nullity. It would be operative only when it was useless, and would cease to be operative upon the first attempt to give it a practical effect. The article referred to in this case, therefore, is not only negative, but negation is of its very essence; deprive it of its negative character and it ceases to be a law at all — it exists only as it prohibits. When the law, therefore, says that the olographic will must be proved by two witnesses, it means, as it appears to me, that one witness shall not prove it; and so with regard to every other provision applicable to the case presented. If any party in interest should appear before us on an appeal from a decree of a probate court admitting a will to probate upon the testimony of one witness, I apprehend that we should have very little hesitation in reversing the decree, no matter how well it might be fortified by proof that it was impossible to obtain two witnesses, or that witnesses who might have proved it were dead. I think we should say, in such a case, that the article was prohibitory, and that the ordinary rules of evidence were not applicable and could not be substituted for the positive statutory provisions of the Code. If, then, the article of the Code is imperative and prohibitory, as I think it is, it is the duty of the magistrate to whom a will is offered for probate to see that the requirements of the law are complied with. If it is an olographic will which is offered for probate, it is his duty to require that it shall be proved by two witnesses who recognize the document as being wholly written, dated and signed by the testator; and the knowledge of this fact they must have acquired from having frequently seen him write and sign his name. And it appears to me that the magistrate receiving the proof of the will cannot dispense with any of these requirements without an omission of duty. Having considered the general rules regulating the proof of wills, it remains to be determined how far the case presented furnishes such an exception as to justify a departure from their ordinary application. It is admitted — and on this point there is no division of opinion — that in no part of the testimony is it stated that either of the witnesses ever saw Clark either write or sign his name; but it is urged that this being the case of a lost will, the rules regulating the proof of testaments not lost are not applicable. So far as the articles of the Code were not intended to apply to such a case as that presented, they of course cannot be invoked or enforced. *134 When the law, therefore, refers to the production of a will, the ease of a lost will, so far as it relates to its production, is not contemplated, any more than in a provision referring to the presence of witnesses in court reference can he supposed to be had to a case where the witnesses are dead or absent. Acting upon this reasonable doctrine, the inferior court allowed proof to be offered of the fact that a document purporting to be a last will and testament of Daniel Ciarle had been either lost or destroyed, and also proof of the contents of the document supposed to be lost. The recorded testimony of witnesses long since dead was received in evidence both as to the character and contents of this document. All that the dead had sworn to, and all that the living could swear to, was received without objection. If more testimony was not received it was because no further testimony was attainable; but upon a consideration of the whole of it the court thought, perhaps erroneously, that the proof did not meet the requirements of the law. The inferior court considered that, without assuming that to have been proved which it is admitted was not proved, it had no authority to admit the will to probate; and it is because (as it appears to me) this court has assumed that the witnesses, if they could be brought to life, would swear to what they have not sworn to; would give testimony beyond what they had already given; would, in fact, give a particular answer to a particular question that I feel compelled to dissent from the opinion which has been rendered. I have endeavored to show, that if the witnesses were alive, it would be the duty of the court to inquire into the particular sources of their knowledge of Claris's handwriting. Now, in my opinion, the court was not authorized to assume that an answer to the question whether they had frequently seen OlarTc write, would have been an affirmative one. Eor a legal inference, the court was not, it appears to me, authorized to travel beyond the record, and as a mere deduction of fact, it, by no means, follows that familiarity with Glarh's handwriting and signature must have been based upon the fact that they had ever either seen him write or sign his name. Every person who has been called upon frequently to receive the proof of wills, and indeed every person who has had occasion to examine frequently the handwriting of different persons, must recognize it at once, as within bis personal experience, that such knowledge of one’s handwriting is often acquired in a manner to enable any one to swear to it with all reasonable certainty, without ever having seen the writer put pen to paper. It is not my purpose to elaborate this point or to extend my remarks beyond what may be considered necessary to a statement of the views upon which my dissent is placed. I withhold my concurrence in the decree which has been rendered, because, in my opinion, it substitutes conjecture for certainty in proceedings in which, above all others, neither assumption nor conjecture are admissable.