Dissenting Opinion. • ’
Eennkr, J.In my view, the only questions presented for our solution under the pleadings in this case are :
1. Whether the testator, Edward Burke, “ was of insane mind and mentally incapacitated to make a will ” on the date of the will attacked.
2. Whether the will is invalidated by reason of having been made under the undue influence, suggestion or captation of Augustin Burke.
These are the only grounds of nullity raised or even suggested by the pleadings, and the last mentioned evgn of these is so vaguely charged as to render it doubtful whether it should be considered.
I.
In the case of Kingsbury vs. Whitaker, 32 An. 1055, we had occasion with unusual care to consider and expound the important principles underlying the freedom of testamentary disposition, the habitual reluctance of courts to interfere with it, and the kind and degree of mental capacity required for the valid exercise thereof.
We there held, with the support of abundant and high authorities, that notwithstanding a certain impairment of mental health, activity and vigor, as the result of old age or disease, and notwithstanding the exhibition of curious eccentricities of thought and action, yet if the individual retains sufficient of the reproductive faculty to collect in his mind the particulars of the business in hand, to understand tiie nature of the testamentary act, to appreciate its effects, to know what property he has to dispose of, the claims that are upon him and their relative importance, and to form a rational desire that his property should be disposed of in a certain manner, then he is, according to law, capable of exercising the privilege of disposing of his own property.
*176The evidence in this case, taken as a whole, leaves upon my mind the perfect conviction that the testator, Edward Burke, possessed all necessary mental capacity for the making of a will.
He had been an active and intelligent business man, had accumulated a large fortune and had reached the age of 75 or 80 years, when several months before his death he became subject to epilepsy, which severely prostrated his physical health, and no doubt in some degree affected his mental condition, as is commonly or frequently the case with that disease.
The evidence of the extent to which his mental integrity was affected is so conflicting, that it is impossible to reconcile it upon any theory of even intended truthfulness. If we are to believe the only important witnesses of plaintiff, he was, for six months before the will, an utter helpless imbecile, incapable of reading or .writing, of attending to any business, of counting money, of being trusted alone, of doing any rational act whatever.
The very extravagance of this testimony operates its own destruction. It is overwhelmingly contradicted by the evidence of numerous witnesses of the highest character, as well as by various independent facts which are incontestably proved.
His physician, who attended him constantly during this period, a gentleman of the highest personal and professional reputation, testifies that his mind remained entirely unimpaired with the exception of a slight defectiveness of memory.
His lawyer, one of the most eminent practitioners at this bar, who had frequent consultations with him on business matters during this time and who advised and assisted him in the making of the will attacked, declares he was then and at all times in perfect possession of his mental faculties.
His priest, who frequently administered confession to him and held other interviews with him during his latter days, affirms his perfect sanity and intelligence.'
Their testimony is confirmed by that of numerous other witnesses of character and standing. It is, besides, affirmatively shown that he continued to discharge his own important bank business, that he made his own deposits and drew his own checks. The chocks are produced in his own handwriting and signed by himself. The deposit lists are shown filled up by himself, and entirely correct as to items and additions. He drew dividends on his bank stock and had interviews with the president and other officers of the bank, exhibiting, according to their statements, no sign of mental incapacity.
He was in the habit of getting his own medical prescriptions filled, *177and the druggist, who had frequent conversations with him on such occasions, found nothing to awaken suspicion of his sanity.
A letter written to his brother a few weeks prior to the will is produced, entirely coherent and intelligent.
Manifestly, as before stated, these opposing lines of testimony are not reconcilable.
The Judge of the District Court, a magistrate of great ability and. long experience, who saw and heard all the witnesses, maintained the will.
There is nothing to show that the will was not conformable to the tenor of his affections. The only person who complains, or has a right to complain of it, is his daughter, the plaintiff. But he had made a prior will, six months before the present one, and at a time when there is surely no proof that he was incapable, and he then left her nothing. She was a child by first marriage, who had always lived away from him, and whom he had seen but once since she was three years old, although her age, at the date of the will, was about fifty years.
On the other hand, the present universal legatee was his youngest 'and only surviving brother, for whom he entertained a lively affection, and who, though living in Great Britain, had for a number of years been in the habit of coming to this country yearly to visit him.
II.
I can find in the record no evidence whatever of any influence used by Augustin Burke, in reference to the will.
His presence in this country was in obedience to the express request of his brother.
The evidence of the attorney who prepared the sketch of the will is positive that it was drawn under the exclusive direction of the testator, and that Augustin Burke took no part therein;
The evidence of the notary and witnesses who attended the confection of the will is positive that Augustin Burke never spoke or made' any suggestion whatever of any kind, while it was being done, or before or afterward.
The charge is wholly unsupported by any evidence whatever,
I pretermit all consideration of the question whether, under C. C. Art. 1492, such evidence would have been admissible.
III.
I can find no possible foundation in the pleadings for raising any question as to the validity of the will on the ground of defective execution.
If Augustin Burke had aided in the dictation of the will, perhaps, *178under the allegation of plaintiff’s petition, that it was made under his influence, that question might have been raised. But it is shown that, neither directly nor indirectly, did he have anything to do with it.
I think this should shut out all consideration of that question. Nor did defendants enlarge the issue by proving the circumstances attending the confection of the will. Those facts were germane to the question as to whether it was made under Augustin’s influence, and were properly shown to establish his innocence of that charge.
Nor do I find anything in those circumstances reflecting on the capacity of Edward Burke. The notary and other witnesses establish that it is a common practice for persons making wills to have their desires put in writing beforehand, under competent advice, and then to dictate from such writing. Indeed, I see not how, otherwise, ignorant persons or persons even of moderate intelligence could properly dictate a will. The fact that, in this ease, the testator dictated from the reading of a memorandum so prepared, by one of the witnesses, does not affect the question of capacity. The will is shown to have conformed to the memorandum. The latter is shown to have been prepared under his personal and intelligent.direction. The will was read over to him after it was taken down by the notary and before he signed it.
I think the judgment appealed from should be affirmed, and therefore dissent.