On Rehearing.
BAKER, J.On the original hearing of this case it was held that a nuncupative testament by public act was invalid because, although it was entirely written by the notary public as dictated by the testator, and was clothed with all the forms prescribed in the Civil Code, it was written with a typewriter. The ruling, in effect, was that the instrument should have been written in the handwriting of r the notary.
[1] After a more thorough study and consideration of the subject we have concluded that, inasmuch as the Code does not require that a nuncupative will by a public act shall be written in the handwriting of the notary, the court has no authority to require it. The Code does require that an olographic will shall be entirely written, dated, and signed in the handwriting of the testator. But, with regard to the nuncupative will by public act, the requirement in that respect' is merely that it shall be “written by the notary as it is dictated” by the testator. The Code also provides all other safeguards ’ that were deemed necessary to prevent fraud or error in the making of nuncupative testaments by public act. The dictation and writing of the testament, the reading of it by the notary to the testator, and the signing of it, must all be done in the presence of three witnesses residing in the place where the will is made, or in the presence of five witnesses if they reside elsewhere, all of which must be done at one time and without interruption or turning aside to any other act; and the observance of the formalities must be noted in the instrument. We have no more authority for adding to these sacramental requirements than we would have for dispensing with any of them.
Notwithstanding the framers of the Code required that olographic wills should be written in the handwriting of the testator, it is very likely they did not contemplate the invention of a writing machine that would not show the characteristic handwriting of the writer. But that is the strongest reason that can be given for saying that the framers of the Code did not intend to forbid the use of such an instrument in the writing of wills that were not required to be written in any particular or characteristic handwriting. To hold that the writers of the Code intended to forbid the use of such an instrument in the writing of nuncupative wills by public act would be the same as to say that such testaments must be so written as to be identified by the handwriting of the notary public, just as an olographic will is invalid unless it be identified by the handwriting of the testator. The law does not read that way, and we cannot so write it without usurping the province of the Legislature.
The judgment appealed from is annulled, and plaintiffs’ demands are rejected, and-their suit is dismissed at their cost
MONROE, C. J., dissents and adheres to view expressed in original opinion handed down. DAWKINS and OVERTON, JJ. dissent.