On Rehearing.
HAWTHORNE, Justice.After a further study and analysis of the entire record in this case, we have concluded that our original judgment affirming the judgment of the lower court which decreed the will to be null is correct.
The principal cause* for the granting of this rehearing was that the district judge’s opinion, which was quoted at length in our majority opinion, contained certain inaccurate statements of fact, but our reconsideration of the case convinces us that they are hot of such a material nature that they would cause us to change our' original decision.
The deceased in about the year 1943 in a typewritten will made bequests similar to. those found in the will here under discussion, but some time between 1943 and 1945 he destroyed this will. The trial judge stated that he did not remember any witness’ testifying that R. D. Fellows made any statements after the time he destroyed the typewritten will that he would leave the drug store to Wilbur and Don Fellows. As pointed out in the dissenting opinion, the trial judge overlooked the testimony of certain witnesses who testified that the deceased told them that “Don and Wilbur were going to have the drug store”, “that he had left Wilbur, Don and Mrs. Gladys all taken care of”, and that he wanted them (Wilbur and Don) to operate the drug store, and also overlooked the testimony of Mrs. Eloise Fellows, wife of Wilbur D. Fellows, to the effect that the deceased told her not to worry, that the drug store would be Wilbur’s and Don’s. The record makes it fairly certain that most or all of these statements were made by the deceased after the destruction of the typewritten will.
None of these witnesses, however, testified to the existence of the will, and two of them, Penniman and Anderson, testified *454positively that the deceased did not mention a will to them. Don Fellows testified that in June of 1948 the deceased told him that he had torn up his will and had told Gladys, his wife, what to do, and no mention was made of any other will. Furthermore, Mrs. Loraine Riley testified that she had been a good friend of the deceased for 10 years, and that he had discussed the question of a will with her many times, and that he told her subsequently to February 3, 1947, the date of the will here under attack, and just a few months prior to his death, that he had torn up his will, that there was no other will and never would be another one, and that he wanted everything he owned to go to his wife. We quote from Mrs. Riley’s testimony as follows:
“Q„ Did he discuss any business matters or personal matters with you? A. Yes.
“Q. Did he ever discuss with you the question of a will? A. Yes.
“Q. About when? A. Many many times he discussed the will with me.
“Q. Had he discussed that with you since February 3, 1947? A. Yes.
“Q. Can you give us approximately the date of the last time? A. About — between two and three weeks before he went to bed and did not get up again.
“Q. And he stayed in bed for about sixteen weeks? A. Yes.
“Q. Now, what did he tell you about a will? A. He told me that he had torn up the will.
“Q. Did he say what kind of will it was, whether it was typewritten? A. No.
“Q. He just said he had torn up the will that he made? A. Yes. ■
“Q. Did he say anything about making another? A. He said he had torn up this will and there was no other will and never would be another one.
“Q. That was since February 3, 1947 and * * * a few -weeks before he went to bed? A. Yes.
“Q. And how long before his death did that happen? A. He was sick between thirteen and sixteen weeks and it was about three weeks before he went to bed and never did get up again.
“Q. What else did he tell you about tearing up that will if anything? What • would be done with his property? A. Yes, he said he wanted everything that he owned to go to his wife.” (Italics ours.)
The testimony of this witness shows •that the deceased himself, by words uttered some 16 or 19 weeks before his death, refuted the possibility of there being in existence a will written by him on February 3, 1947. Actually the only positive evidence of the writing of another will by the deceased after the destruction of the typewritten one is the testimony of Wilbur Fellows. We do not think that the statements of the various witnesses which the trial judge overlooked are positive evidence that the deceased had made a will bequeathing the drug store to Wilbur and Don Fel*456lows, or that they necessarily contradict the testimony of the witness Mrs. Riley, and certainly their statements are not proof that the will produced was one written by the deceased.
The trial judge further erred in the statement that Don Fellows and several lay witnesses testified that the will was not in the handwriting of the deceased, for, as pointed out in the dissenting opinion, the only lay witness besides Don Fellows who so testified was the plaintiff herself, Mrs. Gladys Fellows. Likewise, the only lay witness who testified that the will was in the handwriting of the deceased was the legatee, Wilbur Fellows, who said that it was written in his presence.
As stated before, these errors are not so material as to cause us to change the result reached by us in the original opinion.
We might note, however, that at the probate of the will some four lay witnesses besides defendant Wilbur D. Fellows testified that the will was in the handwriting of the deceased, to the best of their knowledge and belief. Only one of these four was called, and he by the defendant, to testify in the instant case, and neither on direct nor on cross-examination was he questioned about the genuineness of the handwriting in the will.
Wilbur Fellows testified that the will had been in his possession since it was written on February 3, 1947; that he first kept it at the drug store in an envelope marked “personal” and later took it to his home. Rolland D. Fellows died on Thursday, November 4, 1948, and according to the testimony of Mrs. Eloise Fellows, wife of the legatee Wilbur Fellows, she first knew of the existence of the will on Sunday [November 7, 1948], three days after Rolland D. Fellows’ death. One of the attorneys for plaintiff testified that he had a conference with-Wilbur Fellows, his wife Eloise, and Don Fellows in the drug store on November 9, 1948 [Tuesday], and at that time and at that place (notwithstanding the fact that according to her own testimony as pointed out hereinabove she knew of the existence of the will) she made the statement that “if there was a will it had been destroyed by Gladys [the decedent’s widow]”. Both Wilbur and Eloise Fellows never denied that this statement was made, but stated that, if it was made, they did not remember it.
On November 10, 1948, plaintiff herein, decedent’s widow, filed a petition to institute a search for a will, and the court appointed a notary public for this purpose. One of the plaintiff’s attorneys testified that on this same day or on Friday, November 12, he was informed by one of the attorneys for the defendant that the defendant, Wilbur Fellows, and his wife, Eloise, were worrying the life out of him about the drug store, and that he had informed these people that, unless they could produce a will, they had no case. Defendant’s attorney made no effort to deny that *458this conversation took place, hut attempted to limit its scope by the following question on cross-examination: “Q. Didn’t I say that I didn’t know if there was a will or not and I told them if they had no will that they did not need a lawyer but if they did have a will to get it probated.”
Although both defendant and his wife according to their own testimony knew of the existence of the will, they made no effort to deliver it to the notary appointed by the court to make a search for a will. It was not until Saturday, November 13, that plaintiff’s attorney was informed by one of the attorneys representing defendant that defendant had found a will, and he was instructed at that time to deliver it to the notary public. Instead of delivering the will to the notary public appointed to make the search, on November IS the defendant Wilbur Fellows filed a petition to probate the will, and on the same day it was probated in the office of an attorney in the City of Hammond without notice to plaintiff. The original will was immediately withdrawn from the record, pursuant to an order of court, and a photostatic copy substituted therefor. On November 16 plaintiff herein obtained an order directing Wilbur Fellows to return the original will. Upon his failure to do so, on November 26 an order was issued for him to show cause why he should not be adjudged in contempt of court for his failure to comply with the order to return the will. Between this date and December 3, the time fixed for the hearing on the rule for contempt, the order was complied with and the original will was returned.
From these facts and circumstances, together with those already set out in our original opinion, and our reexamination of the evidence submitted regarding the genuineness of the handwriting in the will, we cannot say that the trial judge committed error in his decision that the plaintiff has shown by a preponderance of the evidence that the will was not written by the deceased.
We have again carefully examined numerous exhibits of the deceased’s known signature and handwriting, consisting of checks, bills of sale, minutes of the directors’ meetings of the Hammond Building & Loan Association, leases, affidavits, a letter, and other documents, all of these documents having been written or executed by the deceased from a period of a few months prior to the date of the will in question to a few months thereafter. In comparing these documents with the will itself, one can readily see that there are numerous dissimilar characteristics in the handwriting. Defendant’s expert admits that such dissimilarities exist, some of these being in the nature of tremors, but explains them by saying that the will was written by a person apparently suffering from some kind of nervous disorder, such as that caused by excessive drinking. Defendant himself says that the deceased had quite a struggle in writing the will, and that it took him 30 *460minutes to do so. However, in the record we find the testimony of disinterested witnesses that on the night of the date the will was written the deceased was not drinking, nor was he in a nervous condition. Furthermore, there are some obvious dissimilarities which, in our opinion, are not satisfactorily explained by the Lieory that the deceased might possibly have been suffering from the “shakes the morning after” when he wrote the will.
For the reasons assigned, the original decree of this court affirming the judgment of the district court is reinstated and made the final judgment of this court.
FOURNET, C. J., dissents and assigns written reasons. PONDER, J., recused.