(dissenting).
After'hearing the argument in this case and examining during the course thereof the various instruments and documents offered in evidence, I became fully convinced that it was most unlikely Wilbur D. Fellows, brother of the decedent and a man of some 57 years who had entertained an unimpeachable character in the community, would forge the will in question, and now that I have carefully studied the record, I am constrained to disagree with the learned author of the majority opinion that the analysis of the evidence by the trial judge is “substantially correct and accurate,” for I find he is inaccurate in his analysis involving some very important facts, and in some instances that he is not supported by the record. Furthermore, I am impressed that the trial judge labored in giving his reasons for judgment, first holding the will was invalid by reason of the fact that it was not susceptible of being carried out, and second that it was invalid because it was a forgery. Consequently, I cannot agree with the conclusion of the majority view that the trial judge did not commit manifest error in resolving the issues of fact in this case in favor of the plaintiff.
*426The history of the family involved in this litigaton, and the facts and circumstances surrounding the confection and probate of the questioned will are of great importance to an understanding and decision of the case, and, for this reason, I wish to set them out in full as I find them established by the record.
The deceased, Rolland D. Fellows, (known more familiarly as “Roll”), first settled in Hammond, Louisiana, in 1907, at which time he was in his early twenties, probably 22 or 23 years of age. On November 18, 1913, he married a local girl 'by the name of Gladys Bernice DeSouge, and during the existence of their marriage amassed an estate of considerable size, roughly estimated to be worth approximately $190,000 at the time of his death on November 4, 1948. He left neither ascendants nor descendants.
By 1915 Rolland had acquired a drug ■store known as the Central Drug Store, and from that year until November 9, 1948, Wilbur D. Fellows, who followed his broth- • er to Hammond in 1915, worked in the drug store, except for the time when he was ill ■ or away at school. During many of these years Wilbur lived in the home of his broth- • er and sister-in-law, Rolland even helping to put him through pharmacy school, as he did his nephew Don later. Rolland, who was quite a heavy drinker, gave up all pretense of running the drug store some 10 years prior to his death and during that ■. time it was managed by his brother, Wilbur, with his full approval. In fact, it is eminently apparent that during these many years the association between these people was a very close one indeed and that it was only disturbed after the marriage of Wilbur in the fall of 1943 to Eloise Corbin, a woman of considerable means and the member of a prominent local family, when a friction that amounted almost to enmity sprang up between the wives of these two brothers.
In the meanwhile, in 1922, Donald Fellows, the nephew of Wilbur and Rolland, moved to Hammond to live with his uncles, leaving only to attend college and for some 5 years during the first part of the 1940s when he was serving in the armed forces. Although only a schoolboy when he arrived, he too worked in the drug store, first as delivery boy, then behind the soda fountain, and later as pharmacist; finally, from November 9, 1948, the night before Mrs. Fellows opened her husband's succession, being put in full charge of the drug store by his aunt, the plaintiff. It was estimated on the inventory of this succession that the drug store was worth in the neighborhood of $56,000.
In 1943, Rolland, being ill and preparing to enter a hospital in New Orleans, dictated to his brother, who wrote it on the typewriter, his will, which was properly witnessed. In this will he left the drug store to his brother and his nephew, Wilbur and Don Fellows, giving the controlling interest to the brother and also providing for run*428ning expenses of $5,000. This will was subsequently torn up by Rolland, the inference in the record being this was done because of a quarrel between the two sisters-in-law. Although the date on which this was done is not disclosed in the record, the surviving widow testified her husband told her in 1945 he had torn the will up.
The disputed will, which is dated February 3, 1947, contains very much these same provisions and Wilbur Fellows testified that it was written in his presence by his brother Rolland around 9 o’clock on the morning of that day (a Monday) while Rolland was sitting on the front seat of his automobile that was parked on the road in front of the farm owned by him just outside of Hammond, and that Rolland gave the will to him with the admonition that he keep it safely and tell no one about it, particularly not their wives. Wilbur further testified that he marked his own name on an envelope and also the word “personal”, sealed it, and placed it in the safe at the drug store, where it remained until the summer of 1948, when the doctor informed him Rolland was slipping fast, at which time he removed the envelope from the safe and took it to his home.
Rolland Fellows died on Thursday, November 4, 1948, and on the following Sunday Wilbur told his attorney he had a paper connected with his brother’s death and if he had to secure the services of an attorney in the matter, he wanted him to represent him, but he did not discuss it further with the attorney at that time because his' wife, having been informed of the existence of the will after Rolland’s. death, objected to anything being done about it until she had had a chance to' show it to her cousin, also an attorney, who was. not then in town, principally because it was-suggested the will might not be good as it had not been witnessed. Efforts were made to locate the cousin, who was finally found in Little Rock, Arkansas, and he asked that the matter be held in abeyance until he could return and have a personal consultation. This consultation took place around! 9 o’clock the night of Friday, November 12,. and, upon his advice, the will was turned over to Wilbur’s attorney the following' morning, at which time the plaintiff’s attorney immediately was notified, as was also Don Fellows, and a copy of the will given them. From that time the will was never again in the possession of Wilbur Fellows..
In the meanwhile, the surviving widow and her attorney asked Wilbur to continue as manager of the drug store on the night: of Tuesday, November 9, and, when he refused because he did not care to commit, himself until he was certain of the validity or nonvalidity of the will from a legal' standpoint, Don Fellows was put in charge. The next morning, November 10, Mrs. Fellows opened the successsion of her husband,, requesting that a search be made for a will,, if one existed. The next day was a legal' holiday (Armistice) and the cousin of Mrs. Wilbur Fellows returned to Hammond the *430day after that, at which time he advised the matter be placed in the hands of the attorneys, as just stated.
The olographic will of February 3, 1947, was probated by the attorneys representing Wilbur Fellows on November 15, 1948, in accordance with the provisions of Article 1655 of the Revised Civil Code setting out the procedure to be followed in such cases; i. e., its acknowledgment and proof by the declaration of two credible persons, “who must attest that they recognize the testament as being entirely written, dated and signed in the testator’s handwriting.” The authenticity of the will as the olographic devise of Rolland D. Fellows was not only sworn to by Wilbur Fellows by reason of the fact that he saw the decedent writing it in its entirety in his own hand, but also by reason of his familiarity with the handwriting of his brother after many years of close personal business association. In addition, its genuineness was attested by four other witnesses, Earl Spencer, a photographer of Hammond, Cleo McIntrye and Vic G. Anderson, both of whom had worked for the deceased for a number of years, and Robert M. McGee, an attorney and notary public who had had many .leases, bills of sales, and contracts signed by the deceased in his presence. (It should be noted here that the two latter witnesses did not appear in court at the request of the defendant for the purpose of attesting to' this will, but only happened to be in the office at the time and voluntarily proferred their testimony because of their familiarity with the signature and handwriting of the deceased.)
On January 17, 1949, this suit was instituted by Mrs. Gladys Fellows, the surviving widow, to have the will set aside as a forgery.
While it is true, as observed by the trial judge, that the testimony of the witnesses who attested to the authenticity of the will at its probate was not binding on the plaintiff, who was not present at the time, it must be observed that the jurisprudence of this court is to the effect that the probate of an olographic will by due attestation according to law gives it a prima facie validity and the burden of proving it is not authentic then shifts to those who are opposing it. Succession of McDonogh, 18 La. Ann. 419, 444; Succession of Gaines, 38 La.Ann. 123; Succession of Hagan, 150 La. 934, 91 So. 303; Succession of Wadsworth, 152 La. 131, 92 So. 760. (I think it should be observed here that the plaintiff did have a chance to cross-examine one of these attesting witnesses when he testified on the trial of this case, but her attorneys did riot seem interested in testing his familiarity with the decedent’s handwriting and signature or in discrediting the testimony he gave at the time the will was probated.)
One of the erroneous statements to be found in the written reasons of the trial judge, adopted by this court with approval, is that “Several lay witnesses, including plaintiff and Don Fellows, testified that they *432had known the decedent for many years and that they were familiar with his handwriting and signature and that, in their opinion, this purported will was not in the handwriting of the deceased.”
The evidence discloses that the plaintiff and Don Fellows were the only lay witnesses who testified to this effect. Not a single one of the other lay witnesses, either those of the plaintiff or those of the defendant, were even questioned with respect to the authenticity of the handwriting in this will. In fact, they were not even shown the will so far as the record reflects. And this is strange when we remember that two of the plaintiff’s lay witnesses were associated with the deceased for many, many years in the Hammond Building and Loan Association, of which the deceased was the president. The lay witnesses of the plaintiff were only placed on the stand to (1) attest the genuineness of the signature of the deceased on certain documents that formed the basis of the testimony of the plaintiff’s expert witnesses, and (2) attest to the fact that the deceased on the night of February 3, 1947, some 10 hours after this olographic will was allegedly confected, was not then drinking anything stronger than coffee.
Furthermore, while the testimony of the plaintiff and Don Fellows is to the effect that they were familiar with the handwriting and signature of the deceased and that in their opinion the will was not in his handwriting, they gave not one single fact upon which their opinion in this respect is based. 'Such evidence has very little, if any, probative value, for it merely reflects the opinion of the witness, with no- basis on which the appellate court can gauge the weight to be given it.
On behalf of the defendant, the only witness who testified with respect to the handwriting on this document was Wilbur Fellows and he, as above explained, stated it had been entirely written and signed by his brother Rolland in his presence. The other lay witnesses of the defendant testified primarily with respect to the genuineness, of the signature of the decedent and his handwriting on a number of documents that were used for comparison purposes during the course of the trial by the experts of' the defendant; to show that the deceased had from time to time expressed his intention of leaving the drug store to his brother and nephew; and that he was an unusually heavy and habitual drinker, and a very sick man, during the latter part of his life. Not a single one of these lay witnesses-was ever questioned by the plaintiff on cross-examination, or by the defendant on-direct examination, as to the authenticity of the handwriting in the will, not even Vic-Anderson, who had attested to- its validity when it was probated.
Thus it may be seen that there were-only-three lay witnesses who testified during the-trial of the case on this very important question of the authenticity or forgery of' the will, the sole question at issue; the; *434plaintiff and her corroborative witness Don Fellows on the one side and the defendant in his own behalf.
'In reaching the conclusion that the will was a forgery, both the trial judge and the majority of this court seem to have been influenced by Don Fellows, with whose testimony they were impressed because he testified the will was a forgery although he stood to benefit thereunder to the extent of $28,000. The trial judge also states that although Don’s testimony was vigorously attacked in an attempt to show collusion between him and his aunt, this attempt “was a dismal failure.”
In this conclusion I cannot agree, for my appreciation of the evidence is that it clearly shows Don Fellows was discredited on this very important phase of the case by the plaintiff herself. Don Fellows admitted he was personally interested in the outcome of the case, a fact which the trial judge concedes in his opinion. He denied any collusion with his aunt, and stated he knew nothing about her having made a will under which he would inherit her estate equally with the plaintiff’s sister. His aunt, the plaintiff here, stated she had drawn up such a will (explaining this was done in the event she predeceased her husband), but tore it up after her husband’s death. When she was asked if Don had ever been told of the existence of such a will and knew the contents thereof, she stated she showed him the will the night she tore it up. In addition, she reiterated under pressure that he not only knew of the will and its contents the night it was destroyed, but that he was also fully aware of these facts at the time he denied any such knowledge under cross-examination during the trial. See, pages 204, 205, and 208 of the transcript.
Without casting any further reflection upon either of these people, it might be well to remember that Don not only stands to inherit from his aunt (who is childless and has already indicated her intention of leaving him half of her estate by reason of her execution of the will torn up after her husband’s death) if he remains on friendly terms with her, but also that he is at the present time benefiting from this friendship, having been made the manager of the drug store the day before his aunt opened her husband’s succession.
The foregoing analysis, in my opinion, clearly demonstrates that the lay witnesses in this case have not furnished evidence that is sufficient to convict the defendant of forging his brother’s will, and, in addition, of being a perjurer because he testified the will was in. his brother’s handwriting and that he had seen him write it. This is particularly true when their testimony is considered in the light of the trial judge’s finding of fact that Wilbur Fellows possessed an unimpeachable character in the community prior to the trial of the case and his character was not in any manner assailed or impeached during the- trial.
*436From my examination of the testimony of the experts in the case, I am convinced the trial judge also erred in his conclusion that this testimony preponderates in favor of the plaintiff. In fact, the contrary is true.
At the outset I would like to state that in Louisiana, as well as in the common law states, the testimony of handwriting experts is received and acted upon with great caution, and this is particularly true of hand-, writing by comparison, even where there are several documents for comparison. Barfield v. Hewlett, 6 Mart, N.S., 78; Temple v. Smith, 7 La.Ann. 562; Succession of McDonogh, 18 La.Ann. 419; Barlow v. Harrison, 51 La.Ann. 875, 25 So. 378; D’Angelo v. Nicolosi, 197 La. 797, 2 So.2d 216. At most, it is only opinion evidence that requires corroboration before it is entitled to any particular probative value. Succession of McDonogh, 18 La.Ann. 419; Succession of Roth, 31 La. 315, 320; Succession of Morvant, 45 La.Ann. 207, 12 So. 349; Succession of Drysdale, 127 La. 890, 54 So. 138; Succession of White, 132 La. 890, 61 So. 860. As Judge O’Niell said in his concurring opinion in Succession of Wood, 182 La. 960, 162 So. 741, 746. “The opinions and testimony of handwriting experts.is entitled to great respect, but it is not infallible. That is demonstrated by the difference of opinion between the two experts in this case, and by the difference of opinion which we find so often in cases involving the question of genuineness or identity of the handwriting of an individual.”
These rules developed in our jurisprudence are based on a very sound and logical foundation, as is demonstrated by a reference to the annotation on this subject at 6 A.L.R. 507 (supplemented at 12 A.L.R. 212 and 27 A.L.R. 319), where it is pointed out that “in order that facts may not mislead, their significance must be understood, and this significance may be appreciated only under the tuition of specialists. Hence the admissibility of expert testimony, the function of the expert being not to resolve an issue for the decision of which the trier of the fact has not the necessary training, but to supply- the vicarious experience which will enable the trier to reach a correct conclusion. Such being the function of the expert, it is obvious that the aid which he may afford is a variable quantity, according to the extent of his perception of the various' factors entering into the problem, and the correctness of his appreciation of their significance. In view of the fact that some of these factors, in the case of handwriting, must remain to a great extent unknown, such as the condition of the writer’s health, or the emotions under the influence of which he may have been at the time, the dubitancy with which the reasoning of handwriting experts is ordinarily followed is justifiable. No problem can be solved with mathematical certainty where some of its factors must remain imperfect*438ly known. The jury sometimes do right in giving credence to the incredible, and the long arm of coincidence may set the doctrine of probabilities at naught. It is interesting to note that in the Howland Will Case, in which Professor Benjamin Peirce gave the famous testimony, based upon the mathematical law of probabilities, that the probability of two signatures of the same person being exactly alike was so infinitesimal as to be ‘practically an impossibility.’ * * * Hence there is, and can be, no rule that the conclusion which the data supplied by the expert tend to establish is to be preferred to the conclusion to which other evidence in the case points, or vice versa.” (The italics has been added by me.)
This is further emphasized by the testimony of Professor L. C. Spencer, for many decades an acknowledged handwriting expert of renown in New Orleans, in the case of Succession of Sutherland, 181 La. 1011, 160 So. 794, 796, to the effect that “.‘Physical examination shows differences in all writings, in the writing in every line you write, there is some physical difference. * * * You write your name twice just as you write it on a check and I will go before a jury and analyze it and show the differences in it, and show that two different people wrote it’ ” causing the court to comment in that case that “That being true, he, as an expert, could show that any olographic will was a forgery.” See, also, Barlow v. Harrison, 51 La.Ann. 875, 25 So. 378.
The foregoing jurisprudence and comments are particularly true in the instant case, where the defendant introduced the testimony of two experts while the plaintiff produced only one, and even conceding that one of the defendant’s experts was not as qualified as the other two experts (which I concede .only for the sake of illustration), then we have two experts with equally impressive' backgrounds pitted against each other, calling to mind the court’s conclusion in Succession of Loewer, 177 La. 869, 149 So. 504, 505, that “Expert testimony is of no aid to the court where, there being two expert witnesses, they contradict each other, and one appears to be as competent and as worthy of belief as the other.” See, also, Succession of White, 132 La. 890, 61 So. 860.
The observation of the trial judge, therefore, that the testimony of the expert for the plaintiffs, George J. Lacy, is entitled to more probative value than that of the equally eminent expert for the defendant, Ira N. Gullickson, was nothing more than his opinion, and I do not think that even this opinion, when carefully considered in connection with the testimony given by all three experts and the facts and circumstances of this case, can withstand the test of careful scrutiny any more than has the remainder of his reasoning, as just above demonstrated.
Mr. Lacy, who preferred to be known officially as an examiner of questioned documents rather than as a handwriting expert, *440became interested in the work in this field in 1916. He stated he has learned all he knows on this subj ect by reading and studying all of the recognized books, by taking two courses of study at Northwestern University, by working in laboratories, and by working with leading experts in this field in the United States. He is a ¡member of the American Society of Questioned Document Examiners, a society composed apparently of some 13 persons who are adherents of what is known as the Osburn school of thought in this field, Osburn the elder having founded this society. Mr. Lacy lives in Houston, Texas, where he at one time held the position of questioned document examiner for the postal department; he has qualified as an expert in this line in some 13 state courts; and he has had questioned documents submitted to him by the FBI, the post office department, the U. S. Secret Service, and the United States Marshal’s office, as well as by state departments, .large corporations, business firms, attorneys, and various individuals.
Mr. Lacy produced a great many blown-up exhibits of various letters and words lifted at random from the known genuine handwriting of the decedent and from the questioned will, and it is obvious that in certain instances he picked those letters and words that were the most dissimilar instead of those that were the most similar to the disputed handwriting. A striking example of this is his selection of the very perfect and Spencerian type capital “Ds” to be found on plaintiff’s Exhibit No. 22, while practically all of the admittedly genuine signatures of the deceased show that the capital “D” in his signature was formed almost in the shape of a tall triangle — thus yf. He testified at great length from these blown-up exhibits, giving his reasons for concluding the questioned document was spurious. Many of these reasons, in my opinion, are as illogical as some of them are logical.
Mr. Gullickson, the defendant’s principal expert, has not been working in this field as long as Mr. Lacy, being a comparatively young man, but his background and his experience is, to my view, much more impressive. He is a. member of the International Society for Identification and, at the time he was testifying, the chief document examiner in the Metropolitan Police Headquarters in Washington, D. C. He first began a study of questioned documents in 1927 as a hobby, but has been directly connected with it since 1931. He explained that there were not then and are not now (with the exception of the school at the FBI) any recognized schools where courses are given in handwriting for expert purposes. However, he also attended Northwestern University, where he went through the school of criminology, in which handwriting and questioned document courses are given. In addition, he has taken the course of study prescribed by the FBI, and while there he was taught by the nation’s recognized authorities. At the FBI he was *442associated with Burt Farrar, who was, for some 40 years prior to his recent retirement, the examiner for the United States Treasury Department, and is recognized as the dean of examiners in the United States. The notes he took during his course at Northwestern, along with those taken by two others taking the course, Appell and Donaldson, formed the background for the establishment of the laboratories of the FBI in Washington.
Mr. Gullickson states that he examines on the average of 900 to 1200 cases a year (a case may consist of only one document or a hundred) and makes over 400 court appearances. He has appeared before all of the courts in the District of Columbia and outlying jurisdictions, and in the state and federal courts of six other states. He has appeared before the investigating committees of both the United States Senate and the House of Representatives. He has been consulted at various times by the labor department, the post office department, the treasury department, the justice department, the commerce department, and the civil service departments of the United States; in the latter department his appearance was in connection with the recent loyalty probes. The work done by him was instrumental in bringing to light the recent forgeries in the export license racket that ran into the millions. He has testified in such famous cases as the Blair Estate case, the Lindberg kidnapping case, the court martial of the chauffeur of Admiral McIntyre (this at the request of the White House), the General Schiniskey death probe, and the Means fraud, the latter being at the request of the late Evelyn Walsh McLean. He felt he was especially qualified to testify in the field of abnormal writings, where the writing is done under the influence of alcohol, drugs, dope, and the like, for the reasons that hundreds of the cases he handles involve such forgeries.
Mr. Gullickson did not produce any impressive blown-up exhibits, stating that all of his opinions are based on the original documents and that the enlargements are merely to illustrate and aid the court and prove nothing in themselves. He did, however, make photostatic comparisons of the genuine handwriting of the deceased on the exhibits furnished him by the defendant, the plaintiff’s exhibits not being available to him until the trial; and he also testified at length in giving the reasons why he thought the will was 'undoubtedly in the handwriting of Rolland D. Fellows, showing in detail that none of the elements that constitute forgery are to be found in the will. His conclusion was that any dissimilarities to be found in the handwriting on the will that could not be explained by the natural variation that exists in the hand-writings of all individuals, could easily be explained by reason of the fact that the will was, to his mind, clearly the work of “an individual that we term as one who has the shakes the morning after the night before,” a condition that would not exist later *444on in the day or the next day, at which time a much different picture would be presented.
His testimony in this respect is corroborated by that of the defendant’s second expert, S. F. Von Aaron, a venerable man of some 82 years of age who lives in New Orleans, is employed regularly as the art director of Walen Company, and has studied and worked in the handwriting field for some 40 years, principally because it is his hobby. He stated that he has testified in the court on the average of twice a year for the past 20 years, having qualified as an expert in this field in a number of states. It was his opinion that the questioned will was definitely written in its entirety by the deceased, his conclusion in this respect being that “This whole document seems to be written under stress, written at a time when a man was not himself, written under strain.”
Even the expert for the plaintiff admitted the dissimilarities he pointed out as existing in the questioned will would not render it spurious if they could be reasonably explained, as is evidenced from the quotation of his testimony incorporated in the majority opinion, but he chose to believe there was no logical or reasonable explanation for these dissimilarities in this case.
I think there is an eminently logical and reasonable explanation for whatever discrepancies may appear in the handwriting on the will. It was proved that the deceased was a heavy and an habitual drinker (the testimony is that he drank so heavily along about the time the will was written that the liquor was then being taken to him in “case lots”). It was also proved that following one of these heavy drinking bouts he did not write in his normal way, as is eloquently demonstrated by some of his admittedly genuine signatures, particularly those to be found on pages 48, 53, 54, 55, 58, 59, and 62 of the official minute book of the Hammond Building and Loan Association introduced as an exhibit, as well as that on the lease that is plaintiff’s Exhibit No. 14 and in the pencil signatures to be found in the United States Internal Revenue narcotic permit book that is plaintiff’s Exhibit Nos. 16 and 17. (The will is written in pencil.)
In addition, the will was written by the decedent, according to' Wilbur Fellows, who was present at the time, while sitting on the front seat of an automobile, a Saturday Evening Post or some such magazine being used as a backer.
If any further corroboration is needed, I think all of the circumstances surrounding the case are in favor of the defendant. Rolland D. Fellows was childless and Wilbur and Don were his closest relatives. He had more or less raised them, putting both through school. The record shows he was extremely close to his brother, and the two named in the will had both labored with the decedent many years in making the drug store the success it was, Wilbur having the exclusive management of it during the 10 years or so just prior to Rolland’s death. *446The surviving widow was otherwise left in no need, but, instead, stood to inherit about half of the decedent’s interest in the community property, which was about equal with the value of the drug store, and, in addition, would have her own half that would be something in the neighborhood of $100,-000. Added to all of this was the avowed intention of the decedent to leave the drug store to his nephew and his brother, as evidenced, first, in the execution of the typewritten will that he dictated to Wilbur in 1943, and later by the statements of the decedent to some of the witnesses at different times.
On this last phase of the case, the trial judge in his written reasons states that although he believed the several witnesses who testified the decedent had openly acknowledged his intention of. 'leaving this drug store to the members of his own family, Don and Wilbur Fellows, he was under the impression such testimony could have no bearing on the issues because all such statements had reference to the typewritten will only and not to the questioned will. His exact words, as adopted in the majority opinion, are: “The Court does not remember any witness testifying that R. D. Fel-lows made any statement after the time he destroyed the typewritten will that he would leave the drug store to Wilbur and Don Fellows.” Actually, he had a very poor memory and apparently wrote his reasons for judgment without reading the transcript, or he was thinking only of the witnesses of the plaintiff who clearly showed from their testimony that the decedent told them he had torn the will up (the typewritten will), which is the uniform testimony of the witnesses Don Fellows, Mrs. Loraine Riley and her husband Tom Riley — the latter having witnessed the typewritten will at the time it was executed.
It is difficult'for me to understand how the court could have- overlooked the testimony of Frank Penniman, a witness for the defendant who, at the time he was testifying, was employed at the drug store under the management of Don Fellows, and who stated that the decedent talked to him several times during the summer of 1948 (the 1943 will was torn up by 1945 according to the plaintiff herself) about the drug store, on which occasions the decedent said “that Don and Wilbur were going to have the drug store.” (Page 211 of the transcript.)
The trial judge also failed to remember the testimony of Alfred Mason, the porter and helper in the stock room at the drug store for some 40 years and who was also employed there on the day he testified. Mason stated that a year or so prior to his death the decedent told him “if anything ever happened to him he wanted Mr. Wilbur and Mr. Don to run the drug store,” and that he would still work there. He later made this more specific by stating the decedent “said he would leave it to them.” (Pages 214 and 215 of the transcript.)
The third witness whose testimony the trial judge overlooked was that of Victor
*448G. Anderson (one of those attesting to the will at its probate), who had worked in the drug store himself for several years and was at the time he was testifying the marshal of the City Court of Hammond. Mr. Anderson stated he had no interest in the outcome of the case and was friendly to both sides. His testimony is that in June or July of 1948 when he was driving the deceased to Ponchatoula to see someone who was suffering from the same disease . as the deceased, Rolland D. Fellows told him he had “left Wilbur, Don and Mrs. Gladys all taken care of,” thus clearly indicating he had made a will. (Page 231 of the transcript.)
The last and fourth witness forgotten by the trial judge was Mrs. Wilbur Fellows, with whose testimony I am particularly impressed. She not only frankly admitted there was considerable ill feeling between herself and the plaintiff, Mrs. Gladys Fellows, but also stated that she had tried on a number of occasions after her marriage to Wilbur in 1943 to purchase the drug store from the decedent, but that he had refused to sell it to her at all times for the reason that if he did her son would inherit the store and he “wanted the drug store to belong to Wilbur and Don.” It seems to me that if he did not want to sell the drug store to Wilbur’s wife because it would get into her family, then he also did not want his wife to have it because her family would inherit it; and the members of the decedent’s own family who had contributed the most to the success of the drug store would not have it.
Other circumstances that seem to have impressed the trial judge and this court were (1) the manner in which the will was confected, particularly the time and place, (2) the condition of the paper upon which it was written, and (3) the failure of the defendant to produce it immediately after his brother’s death. In my humble opinion these are not only circumstances that have been very logically explained, but that they are not such as would warrant the conviction of Wilbur Fellows as a forger and a perjurer, particularly when it is remembered that he was, to the knowledge of the trial judge himself (this portion of his written reasons are not incorporated in the majority view), a man of unimpeachable character. In fact, it might be said that this is a no more suspicious circumstance than the idle ceremony the plaintiff asked the court to go through at the time she opened her husband’s succession of looking for a will, when she knew at the time, according to her testimony during this trial, that there was no such will, because he had not only told her he 'had made none, but had also refused to make one even at her request.
On this phase of the case, and to* show the significance that should be attached to these circumstances, even if unexplainable, I find most apropos the case of Pena v. City of New Orleans & Baltimore, 13 La.Ann. 86. In that case the plaintiff, Six Years after *450the death of John McDonogh, brought forward a purported olographic will bequeathing him $100,000, the will being written on a scrap of paper that did not have the appearance of having been carefully kept (it was creased, discolored, and in parts almost illegible), all of which was thought to be highly significant and suspicious. In finding the will to be genuine and allowing it to stand, the court said-: “We would have been better satisfied with some -evidence explanatory of the conduct of the plaintiff (here the defendant has amply explained why he kept the will only three days after the succession was opened by the plaintiff), so little in accordance with the usual springs of human action, at least with that most powerful of all, self-interest. We concede the suspicion which may attach to the appearance of this small scrap of paper as the title to a large fortune. But, after all suspicions are not permitted to counterbalance, in the judicial mind, the testimony of numerous and uncontradicted witnesses. It is the recollection of some of us, that a dirty fraction of a half sheet of foolscap, was the vehicle or the devise of a large fortune of the late Chief Justice Martin. A similar eccentricity in John McDonogh, which made, in his case, a bit of paper, barely large enough for a promissory note, the repository of an olographic will, may have communicated itself to the beneficiary of that will, and been the cause of his concealing his existence until six years after the death of the testator.”
Also worthy of reference here is the following comment of the court in Succession of Wadsworth, 152 La. 131, 92 So. 760, 762: “It is declared by them to be highly suspicious, because of the time and place and circumstances surrounding the execution of this will. However, we cannot readily detect at all times the psychic cause that induces or impels individual action. The conduct of an individual upon a particular occasion may be unusual or even eccentric; yet it does not necessarily follow that we are justified in repudiating that which was done as incredible because suspicious. Under such circumstances we must apply the rule of reason and search the entire atmosphere of the case, in order to arrive at a just and correct conclusion.”
I have searched the entire atmosphere of this case — which instead of being voluminous as stated by the trial judge consists of only 2 volumes of 348 pages in all, 249 of these being testimony and the remainder the pleadings, and of only 41 exhibits, 29 being those of the plaintiff and 12 those of the defendant — and I choose to place importance on the reputation of Wilbur Fellows for honesty rather than on mere suspicion, remembering that his integrity was recognized by the trial judge as being unimpeachable, and it was riot otherwise attacked. It is obvious that if this will was forged, Wilbur Fellows forged it. It is conceivable to me, but not probable, that he would, so late in his life, depart from *452his normal path of rectitude and become a criminal for such small gain, particularly when he and his wife possessed means and were not in any desperate need of this gain.
I cannot place a brand of “forger” and “perjurer” on this man on mere suspicion. It seems to me that stronger and more convincing evidence should be required, and so I close my dissent by quoting the following particularly pertinent comment of the court in Succession of Wadsworth, 152 La. 131, 92 So. 760, 763: “The presumption of the genuineness of this will arising from the probate proceedings, the testimony of an eye witness to its execution by deceased, the testimony of several other witnesses of proponent as to the genuineness of the signature, the apparent similitude of the signature contested with other signatures of deceased, admitted to be genuine, all corroborated by the naturalness of the bequest itself, present an array of facts which clearly establish to the judicial mind convincing proof of the genuineness of the will herein attacked.”
I therefore respectfully dissent.