(dissenting). The provisions of the Civil Code do not require — and there is no reason why they should .require — -that a notary public who takes down the dictation of a nuncupative testament must write the will with a pen or pencil or in his own handwriting. The requirement, in that respect is merely that the testament shall be “written by the notary as it is dictated” by the testator.
With regard to the olographic testament the Code requires:
“In order to be valid it must be entirely written, dated and signed by the hand of the testator himself” — de la main du testateur hú-meme. R. C. C. 1581.
That means, of course, in the handwriting of the testator. It is so explained in article 1648, prescribing the method of proving olographic testaments, viz:
“The olographic testament * * * must be acknowledged and proved by the declaration of two credible persons, who must attest that they *269recognize the testament as being entirely written. dated, and signed in the testator’s handwriting.”
Originally, and until it was amended by Act 119 of 1896, p. 168, article 1648 of the Code required that the witnesses, to prove an olographic testament, should give the reason for knowing the testator’s handwriting “as having often seen him write and sign during his lifetime.” That requirement was stricken out by the amending statute, and, in lieu thereof, the amended article requires :
“The judge shall interrogate the witnesses under oath touching their knowledge of the testator’s handwriting and signature and shall satisfy himself that they are familiar therewith, making mention of the whole in his proeés verbal thereof.”
Hence it is now and always has been the law of this state that an instrument purporting to be an olographic testament cannot be admitted to probate or ordered executed unless two credible persons, familiar with the testator’s handwriting, prove the genuineness of the will' by attesting “that they recognize the testament as being entirely written, dated, and signed in the testator’s handwriting.” For that reason an instrument purporting to be an olographic will cannot be given effect if written with a typewriter or with any other instrument that does not show the writer’s characteristic handwriting.
The purpose of requiring that an olo-graphic testament shall be entirely in the handwriting of the testator is to prevent forgery of such testaments, because, as the last paragraph of article 1581 says:
“It is subject to no other form, and may be made anywhere, even out of the state.”
But the law does not require that a nun-cupative testament shall be written in the handwriting of the notary public who receives and records the dictation. The reason is that a nuncupative testamént by public act cannot be forged, except by a conspiracy on the part of a notary public and three or more witnesses. Any other forger would have to imitate the signature of a notary public and of three or more witnesses, as well as the signature of the testator, and would then have to trust that the notary public and the witnesses would all be dead when the testator would die. Therefore to require the notary to write the testament in his own handwriting would not interfere with his forging such a testament.
The writers of the Code made all the provisions that were deemed necessary to prevent fraud or error in the making of nun-cupative testaments by public act; and the court has no authority to add other requirements or prescribe additional safeguards. The dictation by the testator, the writing of the testament by the notary as it is dictated, the reading of the will by the notary to the testator, and the signing of it, must all be done in the presence of three resident witnesses or of five witnesses if they reside elsewhere, all of which formalities must be performed at one time and without interruption or turning aside to any other act; and the observance of all of the formalities must be recorded in the instrument. When all of that has been done, the will proves itself. Article 1647 declares:
“Nuncupative testaments received by public acts do not require to be proved, that their execution may be ordered; they are full proof of themselves, unless they are alleged to be forged.”
I have explained that such a testament could be forged only by a notary public or with his connivance. Article 930 of tile Code of Practice, prescribing the method of opening and proving wills, declares:
“If the will be made by a public act, it shall be sufficient for the petitioner to annex a copy of it in due form to his petition, and to pray for the execution and recording of it.”
*271The certified copy, “in due form,” whether written with a typewriter or in the handwriting of the notary, would not show whether the original was written in the handwriting of the notary, or what kind of writing instrument was used.
Of course, the compilers of the Code Napoleon and the redactors of the Louisiana Code in all probability did not contemplate that notaries public would ever use such a writing instrument as one of our modern typewriters. Their idea was that the work would be done with a stylus or quill. But that is no reason for saying now that writing with a typewriter is noi writing, within the meaning of the law that requires certain transactions to be made in writing. So long as the lq,w does not require that a nuncupative testament shall be made in- the characteristic handwriting of the notary public, there is no more reason for saying that it shall not be written with a typewriter than there would be for saying that typewritten evidence of title to real estate is not in writing.
The question before us is not whether the writers of the Code intended to allow notaries public to use typewriters, in taking down the dictation of nuncupative testaments. The question is whether the writers of the Code intended to forbid the use of typewriters for that purpose. If the writers of the Code did not anticipate or contemplate the invention of typewriters, it is certain that they did not intend to forbid the use of such machines in the writing of instruments that were not required to be in any individual or characteristic handwriting.
The question presented in this case was not an issue in the case of Knight v. Smith, 3 Mart. (O. S.) 156, decided 108 years ago. The complaint in that case was that the notary’s clerk had written the will. The court merely applied 'the .strict letter of the law that required the notary himself to write the will, saying:
“The law which makes it the duty of the notary to write the will is hot only clear in its expressions — it is also clear in its object. The Legislature has been unwilling to trust anybody else but the notary with the sacred function of writing a will — a function which, in unfaithful or negligent hands, may he liable to abuse of the most serious and most dangerous nature. But, be that as it may, the law is such, and must be obeyed.”
The court then quoted and applied the rule established in article 13 of the Code that—
“When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.”
It is to be noted, too, that the court’s statement of the reason for the requirement of the law had nothing to do with the characteristic handwriting of the notary public. Therefore, when the court said, at the conclusion of its opinion, that the testament should have been written “in the handwriting of the notary himself,” it meant merely that it should have been written by the notary himself. It is as certain that the court did not then intend to forbid the use of a typewriter or prescribe the kind of writing instrument to be used, as it is certain that the court did not intend to say that the notary should write only with his hand, and not attempt to use his foot or other part of his anatomy.
I respectfully submit that the majority opinion in this case is not in accord with the rule of strict construction of the requirements of the law for the making of wills. We have no more authority for adding anything to the requirements of the law in that respect than we have-for abolishing any one of them.
The consequence of the majority opinion and decree rendered in this case will be the annulment of every nuncupative testament *273written by a notary public by means of a typewriter, or not in bis characteristic handwriting. The ruling, I respectfully repeat, is not warranted by either the letter or the spirit of the law.
For these reasons, I respectfully dissent.