(dissenting).
After writing a detailed and lengthy dissenting opinion when this case was before us originally, in which I clearly demonstrated that the trial judge’s conclusions in this case (upon which the original majority opinion was based) were not only contrary to the jurisprudence of this state, but that the factual premises upon which they were 'based were not supported 'by the record, I did not think it would be necessary for me to write another dissenting opinion, particularly since it was conceded by a majority of the court when this rehearing was recommended I had correctly stated the controlling law -and that my analysis of the facts was unanswerable. The prevailing view here ignores this law, which is not even mentioned, and admits the trial judge misstated the facts upon which the decision was based. It is thought, however, that these errors “are not of such a material nature that they would cause us to change our original opinion.”
At the outset, I wish to point out that although I set forth innumerable specific mis- ■ statements of fact in the trial judge’s written reasons for judgment, the majority has singled out only two of these instances as examples of their immateriality, i. e., (1) that no one testified R. D. Fellows ever stated he was leaving the drug store to Don and Wilbur Fellows after the typewritten will was destroyed, when the record shows conclusively four witnesses so testified; and (2) that several lay witnesses, including the plaintiff and Don Fellows (who was discredited- as a witness by the plaintiff herself), testified the handwriting in this second will was spurious, when the record shows that other than these two not -a single witness so testified, while its genuineness was attested in this case 'by the defendant and also by four other lay witnesses when the will was probated, as evidenced by the testimony taken - at that time and made a part of the record in this case.
It is my purpose to show these errors are material, and, in fact, essential to a correct decision in this case under our *462recognized rules of law. The disregard of this testimony is apparently intended to balance the scales in favor of the plaintiff by taking from the defendant much of the evidence preponderating in his favor, and, in addition, to relieve the plaintiff of the burden of proving her case by the type and weight of proof required under our law for a successful attack on a will, and more particularly where that will has been duly probated in accordance with law, all as set out in my original dissent.
It is preposterous to say that in overlooking the testimony of the four witnesses who established the decedent’s intention to leave this drug store to his brother and nephew, even after he destroyed the typewritten will, the trial judge committed no material error, and the flimsiness of the grounds upon which this testimony is thrown out is astounding.
The testimony of these four witnesses, says the majority in effect, is unimportant and need foe given no serious consideration because none of them “testified to the existence of the will,” particulárly in view of the fact that the plaintiff produced a witness, Mrs. Loraine .Riley, who testified decedent told her shortly before his death he had torn up his will and there would never be another. In other words, the decedent’s intentions as expressed to four of defendant’s witnesses are entitled to no consideration and given no weight, while his intentions as expressed to only one of the plaintiff’s witnesses are deemed to be so important and given so much weight they are decisive of this crucial phase of the case, although it is obvious Mrs. Riley did not establish there was, in fact, no second will.
Actually, the testimony of all five of these witnesses falls into the same category, that is, it is hear-say, being nothing more than a repetition of the decedent’s expressed intentions, after the destruction of the typewritten will, with respect to the disposition of his property. Four say, in substance, he wanted his brother and nephew to have the drug store and was leaving it to them. One says, in substance, he wanted his wife to have everything and so was making no will. From sheer weight of numbers, therefore, if for no other reason, it overwhelmingly preponderates in favor of the defendant. At any rate, this testimony must be given consideration as forging just another of the many links in the chain of circumstances that, as pointed out in my original opinion, give unqualified corroboration to the positive testimony of the defendant (whose honesty and integrity were held by the trial judge to be unimpeachable) that the will was not only not in the handwriting of the decedent, but that he was present when it was written and actually saw a portion of it written by his brother.
But there are other reasons which show the majority erred in concluding the trial judge’s misstatements with respect to the proof on this point is immaterial.
The most glaring fallacies lie in the assumption that these four witnesses were *464offered for the purpose of attesting “to the existence of the will,” and to prove it “was one written hy the deceased.” Since no one, other than the decedent and his brother, knew of this will, it is difficult for me to understand how these witnesses could have been expected to testify to its existence. And inasmuch as these is absolutely nothing in the record to show that three of these four witnesses had any knowledge of the decedent’s handwriting, it is ridiculous to presume they were intended to prove the will “was one written by the deceased.” In so far as the fourth of these witnesses is concerned, Vic Anderson, this statement is entirely erroneous, for he did testify the will “was one written by the deceased” when the will was probated. His testimony in this respect has never been contradicted, or even challenged by the plaintiff, because when he testified on the trial of the instanl case, she did not cross-examine him with respect to the authenticity of this handwriting.
These four witnesses were introduced for one purpose and one purpose only — to establish the decedent’s frame of mind with respect to the disposition of the drug store by proving that even after the typewritten will was torn up he still told people he was leaving the drug store to Wilbur and Don Fellows. It is true he did not, in so many words, tell these people he had made a will, but the inference is inescapable that this was the information he intended to convey, for unless he deeded the property to them prior to his death, there was no other way in which Don and Wilbur Fellows “were going to have the drug store,” as he told Penniman; that the drug store would “belong to Wilbur and Don,” as he told Mrs. Wilbur Fellows; that he “would leave it to them,” as Mason stated he said; or that he was leaving “Wilbur, Don, and Mrs. Gladys all taken care of,” as he told Anderson.
Additionally, the scant testimony of Mrs. Riley, the plaintiff’s star witness, who first denied she had discussed the case with anyone and finally admitted she had gone over it with one of plaintiff’s attorneys, is most unimpressive. To say the least, • it does not outweigh the testimony of the defendant’s four witnesses on this point and is not entitled to the great weight given it in the majority. She testified for the sole purpose of corroborating the plaintiff’s statement that the decedent had told her he had made no will, and to corroborate Sofie McChain on another phase of the case, that will be discussed later. Her testimony in both instances is almost word for word the testimony of the other witness. In this instance both she and the plaintiff say their conversation with the decedent about making a will occurred some nineteen weeks before his death and some three weeks before he was bedded with his final illness; that no.one else was present (not even the corroborating witness) ; that he wanted the plaintiff to have everything; and that he hadn’t made another will.
*466The testimony of the defendant’s four witnesses, on the other hand, impresses me very much. There is nothing parrot-like about it. Only one of these, the wife of the defendant, was an interested party, while two of the others were not only disinterested but were, in fact, testifying against interest inasmuch as they were, at the time, employed .by the plaintiff and working under the supervision of Don Fellows. The fourth, the duly elected marshal of Hammond, Louisiana, and a good friend of the decedent for thirty-one years, had no interest whatsoever in the outcome of this case.
In view of the foregoing, it is obvious the trial judge not only committed a serious error in misstating the facts on this phase of the case, but one that is highly prejudicial to the defendant’s cause and, therefore, of a very material nature.
The second error is equally as grievous. This has reference to the trial judge’s conclusion that a number of lay witnesses, besides plaintiff and Don Fellows, attested the spuriousness of the handwriting in this will, when the record shows no other lay witnesses so testified. The majority gives no specific reason for concluding this error is unimportant. It is said that although the only lay witnesses testifying with respect to the spuriousness of this handwriting were the plaintiff and Don Fellows, the only lay witness attesting its genuineness was the defendant. It is not pointed out that Don was discredited as a witness by the plaintiff herself. At this point, therefore, this evidence clearly does not preponderate in favor of the plaintiff, being nothing more than the plaintiff’s testimony against the defendant’s.
The majority goes on to note that four lay witnesses did attest to the genuineness of this handwriting when the will was probated. Their testimony was made a part of the record in this case. This is at least a tacit admission that the preponderance of the evidence on this point then swings in favor of the defendant.
It is further noted that the only one of these four called on the trial of this case was not questioned about the authenticity of the handwriting in the will, either direct or on cross-examination. In the first place this witness, Vic Anderson, who is referred to albove, was not called by the defendant for the purpose of attesting to the genuineness of this handwriting, as above pointed out. In the second place, inasmuch as this witness had already attested the genuineness of the handwriting when the will was probated, it is difficult for me to see in what manner the defendant could have strengthened his case by having him repeat his attestation here, although it is very clear that the plaintiff, by permitting this testimony with respect to the genuineness of the handwriting to go unchallenged, has considerably weakened her case.
It is the plaintiff’s burden to prove her case by a preponderance of the evidence; to make her case legally certain, not merely *468probable. It is not the defendant’s burden to disprove it. Article 1655 of the Revised Civil Code requires that olographic wills be proved by the testimony of two credible persons who are sufficiently familiar with the handwriting of the deceased to recognize it and attest to its authenticity. Under our jurisprudence, a will so probated is prima facie genuine. Clearly, therefore, no successful attack can be launched against a will thus proved unless it is accompanied by testimony of at least equal weight. We do not have the testimony of two lay witnesses establishing the spuriousness of the handwriting in this will. We have only the testimony of the plaintiff, an interested party, and of Don Fellows, not only an interested party, but a discredited witness. To the contrary, we have the testimony of the defendant, also an interested party, and, in addition, the testimony of four other lay witnesses who are totally disinterested. We have also the testimony of only one expert that this handwriting is spurious, while we have the testimony of two experts that it is genuine. By no stretch of the imagination can this evidence be said to preponderate in favor' of the plaintiff, or even to be of equal weight.
The fact that the plaintiff failed to produce any lay witnesses from among the friends and business associates of her husband who could attest to the spuriousness of the handwriting in this will raises the presumption, under our well-settled rules of law and jurisprudence, that she-did not do so because they would have testified adversely to her contention. Rubenstein v. Files, 146 La. 727, 84 So. 33; Perez v. Meraux, 201 La. 498, 9 So.2d 662; Bates v. Blitz, 205 La. 536, 17 So.2d 816; Succession of Yeates, 213 La. 541, 35 So.2d 210; Olivier’s Minor Children v. Olivier, 215 La. 412, 40 So.2d 803; and Arnold v. Sun Oil Co., 218 La. 50, 48 So.2d 369.
It is certainly highly significant that the plaintiff did not even use as witnesses for this purpose those called to attest to her husband’s handwriting on the exhibits introduced in evidence, one being the secretary of the building and loan association of which the decedent was for many years the president; and that she did not use Mrs. Riley, the friend who was so close to the decedent for ten years he frequently discussed with her his personal affairs and the matters pertaining to the disposition of his property. At the very least, she should have attempted to contradict the testimony of the four lay witnesses who attested the genuineness of this handwriting when the will was probated, even summoning them as 'her witnesses for cross-examination purposes, if necessary.
The majority opinion picks up some supposedly suspicious circumstances surrounding the production and probate of this will, and a statement attributed to the wife of the defendant, in an effort to gloss over the plaintiff’s failure to prove her case by *470the preponderance required by law, and also to bolster the conclusion that the two discussed errors are not of a material nature.
The alleged suspicious circumstances .become suspicious no longer under the sequence of events in this case, as set out in my original dissent, and I see little solace that can be eked from the statement attributed to Mrs. Eloise Fellows. The inference, of course, is that she did not know there was a second will at a time when she testified she did.. She testified the defendant told her about this will on November 7, 1948. It appears that one of plaintiff’s attorneys asked her on the witness stand if she had not stated on November 9, 1948, two days later, that “if there, was a will Gladys had torn it up,” and that she replied: “I would not .doubt that. I don’t remember.” To my mind this reply is not entitled to the connotation sought to be given it. The way I read this testimony, Mrs. Fellows did not remember having made such a statement, but she did not doubt the plaintiff would tear up any will left in 'her care.
The final point touched on has to do with alleged dissimilarities between the handwriting in the will and the acknowledged genuine specimens of the decedent’s handwriting.
It is admitted by all of the experts, the one testifying on behalf of the plaintiff as well as the two testifying on behalf of the defendant, that such dissimilarities would not make the will a spurious instrument if they could be satisfactorily explained by the decedent’s condition at the time he wrote the will, that is, that he was under stress, strain, nervousness, or some other similar inhibition.
To establish that these dissimilarities could be explained by the defendant’s condition, it was conclusively proved that for ,a period of some ten years prior to his death the decedent drank excessively and continuously, and that this condition was such when he wrote this will that he actually labored over it, taking some thirty minutes to write these few lines.
All of this testimony does not mean anything, the majority says, because there is in the record the testimony of "disinterested witnesses” who stated that on the night of February 3, 1947, the night of the day on which the will was written, the decedent was not drinking and was not nervous.
This testimony, dealing with the decedent’s condition some ten or twelve hours after he wrote the will, does not prove that his condition at the time the will was written was as described by the defendant. Nor is it sufficient to overcome the testimony in the record establishing the fact that the decedent, during some ten years prior to his death, drank so heavily he drank in “case lots.”
Furthermore, this testimony was not given by disinterested witnesses. Mrs. Riley was one of these witnesses, and her testi*472mony has been discussed above. The other witness, Sofie McChain, was the “intimate acquaintance” of the plaintiff and her husband. The testimony of these two people is practically identical. They testified they attended a birthday party on the night of February 3, 1947, at the home of a Mrs. Levy; that the plaintiff and her husband were there; there were also a number of other people there, some of whom they named; that the decedent was not drinking any intoxicating liquor on that night, only coffee; that he was not nervous; and that they played bingo;
Recognizing the great .bearing the decedent’s condition, brought about by drinking, had on a determination of this case, the plaintiff’s attorneys called her back to the stand during the closing minutes of the trial in an attempt to corroborate the testimony of these two friends with respect thereto. She began 'by stating her husband had not been drinking during the years 1946 and 1947 — a fact that was overwhelmingly contradicted by other testimony — yet when she was cross-examined closely, she made it plain she wanted to do nothing but “verify his condition on February 3, 1947,” refusing to answer any other questions propounded to her about his condition on other days.
Furthermore, despite the fact this birthday party was attended by a great many other people, among those named by Mrs. Riley, Sofie McChain, and the plaintiff being Mrs. Levy, in whose home the party.was given; Mrs. Levy’s mother, Mrs. Kahn; Mrs. Levy’s sister and brother-in-law; Omar Dameron; Clara Blomire; a Mrs. Patin, and a Mrs. McChain, the only people attending the party called as witnesses by the plaintiff to attest to her husband’s condition on'the night of the day on which he wrote the will were these two close friends and intimates of herself and the decedent.
If the plaintiff wished to establish that the decedent was not drinking some ten hours after he wrote this will, it was her duty to establish this fact by others attending this party, particularly by disinterested persons, and having failed to do- so, the presumption is that their testimony would have been adverse to the plaintiff’s contention that the decedent’s condition was normal on that night.
Finally, says the majority, there are some other obvious dissimilarities that are not satisfactorily explained under the “shakes” theory. What these are, I cannot say, for they are not pointed out. On this phase of the case, I might say that I think the discrepancies found in the concededly genuine specimens of the decedent’s handwriting in the record more eloquently explain these dissimilarities than do the opinions of the experts, and although this was pointed out in my original dissent, these discrepancies are neither discussed nor explained in the majority view.
I cannot join the majority in labeling the defendant, an admittedly honorable and reputable citizen of his community who has *474an outstanding reputation for honesty and integrity, a forger and a perjurer on evidence of this weak type, and I must, therefore, respectfully dissent.