The heirs at law of Shelby Be Bardelabon, deceased, sued the executor and executrix and universal legatee of his last will, made in the nuncupative form, under private signature, to annul the same, on the following allegations:
1st. That the testator was of unsound mind, and therefore incompetent to make a will.
2d. That the formalities prescribed by law were not pursued in the execution of the will.
3d. That it contained a substitution and a fldei commissum reprobated by law.
The defendants have appealed from a judgment declaring the said testament null and void.
The judgment is correct, upon the second ground urged by the plaintiffs, and it will be unnecessary to express an opinion upon the other points.
It cannot be pretended that this will was written from the dictation of the testator or in his presence. It was written by one of the witnesses, at the dictation of another witness, out of the testator’s presence. And the evidence does not satisfy us that be ever declared to the witnesses, that the paper signed by him, after he awoke from a stupor, contained his last will. To sustain such a testament, would be to subvert the Article 1574 of the Civil Code. It is evident that the deceased did not11 cause” the particular will in question to be written, in the sense of the Article just cited. Our law insists that testaments, in all their forms, shall be the utterance of the testator himself — the embodiment of his own thoughts and wishes. In the olographic form, the end is attained by requiring him to write the whole “ with his own handin the mystic form, he is to declare before a notary and seven witnesses, that the paper he presents for their authentication, contains his testament “written by himself or by another, by his direction the nuncupative will, by public act, must be “dictated by the testator and written by the notary as dictated;” and, if under private signature, it may be written by himself, or another; but, when written by another person, it must be “ from his dictation,” or he must have “ caused it to be written,” in substance and in form, as he presents it, declaring it to contain his last will, “ses derniéres volontésP
Judgment affirmed.