dissenting. The will in controversy in this case was written by one of the witnesses in the presence of the other witnesses, but the proof fails to show that it was dictated by the testatpr.
In order, therefore, to maintain the will, it is necessary to overrule the case of Bordelon v. Baron, 11 An. 676.
Having concurred in the decree in the former case, I have not yet been able to convince myself that the case was erroneously decided. Hence I feel constrained to dissent here.
It is declared by article 1588 of the Civil Code, thatthe for malities to which testaments are subject by the provisions of the Code, must be observed, or they are null and void.
There is not, then, any discretion left the magistrate to reason concerning the use or necessity of the formalities prescribed. It is sufficient for him that they are prescribed.
-It was said in the case of Babineau v. LeBlanc that Art. 1574 contemplates two forms of execution of nuncupative wills by private act, one where it is dictated in the presence of the witnesses ; the other -where the will was written by the testator, or caused to be written out of the presence of the witnesses.
The proof that this distinction exists is found in the next article which commences “ In either case ” &c., evidently referring to such distinction.
The will, it must be conceded on all sides, was not valid in the first form, if the same be necessary, because, (as it must be assumed in the absence of the requisite proof) it was not written from the dictation of the testator.
In the other form it failed in a compliance with the article, because (being written by another) it was not caused to be written by the testator “ out of the presence of the witnesses.” It is argued that this formality cannot be of any. consequence and it is considered an unheard of thing that the presence of witnesses can vitiate any instrument. It is, as I think, enough -for me that the for*222mality is required by an express provision of law, and that formalities are declared by the Code to be of the essence of wills, that is, essential to their validity. I think that I am as much at liberty to Strike out the words “ his dictation ” from the first branch of the article as the words “ out of their presence ” in the last.
The law on the subject of wills has shown the greatest care to protect the testator from.surprises and captation, and the construction which is here given to the article, will effectually close the door to everything of the kind, and bring the article, spirit and letter, in harmony with other provisions of the Code. For it may well be supposed that there is loss opportunity to circumvent the testator in the case where he has prepared his will out of the presence of the witnesses, and where he has had abundant leisure to consider the effect of the expressions, and to correct errors and supply omissions than in the presence of the array oi five witnesses, where the spirits of the most self-possessed are liable to be flurried. In the latter case, an adroit suggestion, or even a question and an incautious reply might materially vary the testamentary disposition intended by the testator at the outset, an'd' thus there would be produced a will very different from the will which the testator would have dictated, sua sponte, or would have prepared out of the presence of the witnesses.