I think the judgment of the district court should be affirmed. In my view, the rules of interpretation applied to a notarial will in the early cases cited in the majority opinion are entirely too technical, and are not in harmony with the recent tendency of our jurisprudence to limit the rigid enforcement of the formalities required in the execution of wills to those instances in which the law is palpably violated. Succession of Crouzeilles, 106 La. 442, 31 So. 64; Succession of Beattie,163 La. 831, 112 So. 802.
In Prudhomme v. Savant, 150 La. 256, 90 So. 640, this court held the requirement of article 1578 of the Civil Code that a nuncupative testament by public act must be written by the notary as dictated by the testator was fulfilled where the notary wrote the will on the typewriter. It is entirely conceivable that if the same legal proposition had been submitted to the same court which decided the cases cited in the majority opinion a different result would have been reached from that reached in the Prudhomme Case.
There are no sacramental words exacted by law of the notary; and if words are used which taken all together show that the notary did all that the law makes essential, the will is good as to form, although the notary may be confused in his manner of expressing himself. Rongger v. Kissinger, 26 *Page 126 La. Ann. 338; Succession of Marqueze, 50 La. Ann. 68, 23 So. 106. See, also, Duhon v. Duhon, 161 La. 499, 109 So. 44.
The will under review here specifically declares that Priscilla Lewis, the testatrix, appeared before the notary and stated that she wanted to make her last will and testament, "which statement she made in the presence of said witnesses and me, Notary, and which testament she proceeded to dictate as follows," etc.; also, "it was thus that said testatrix dictated her last will and testament, which was then read to her in a loud and audible voice in the presence of me, notary, and the above named witnesses," etc.
In Pizerot v. Meuillon's Heirs, 3 Mart. (O.S.) 97, the notary had failed to declare, in terms, that the dictating of the will was done in the presence of the witnesses, but the court found that the context disclosed the fact plain enough.
In Seghers v. Antheman, 1 Mart. (N.S.) 73, the will did not contain the declaration, in so many words, that it was read to the testatrix, but the court found that the declaration which the instrument did contain showed that it was read to her.
Again in Forstall v. Forstall, 3 Mart. (N.S.) 367, 368, the court said: "We think if it result from an examination of the whole instrument, that the will was read to the testator in the presence of the witnesses, that it is immaterial in what words that idea is conveyed."
In Rongger v. Kissinger, 26 La. Ann. 338, the notary had failed to declare, in precise terms, that the dictation of the will was *Page 127 done in presence of the witnesses, but the court found that the context made it plain enough that the dictation, as well as the writing of the will, was done in the presence of the witnesses.
I think that a fair and legitimate construction of what the notary stated shows that the will under review was dictated to him by the testatrix. The recital of the personal appearance of the testatrix before him with her statement that she wanted to make her last will and testament, which she proceeded to dictate in the presence of the witnesses and notary, can only mean that the dictation was to the notary, before whom the testatrix appeared for that specific purpose, and that as thus dictated the will was written by the notary in the performance of his official duty.
There is no charge nor suggestion of fraud in the case, and there is no pretense that the notary did not, as a matter of fact, write the will as it was dictated to him by the testatrix.