Opinion
No. 32764.
July 2, 1934.
Appeal from Civil District Court, Parish of Orleans; Hugh C. Cage, Judge.
In the matter of the succession of Mary Ann Tallieu, wherein Mrs. Elizabeth Mestermaker and another petitioned that a certain instrument should not be probated as a will. From a judgment sustaining an exception of no cause of action filed by the Westminster Presbyterian Church, the petitioners appeal.
Affirmed.
Habans Coleman and A.I. Kleinfeldt, all of New Orleans, for appellants Mrs. William Mestermaker and Mrs. M.H. Crary.
Henry Cooper, of New Orleans, for appellee Westminster Presbyterian Church.
In this case, their honors being evenly divided in opinion as to the proper determination to be made of the issues involved, Judge Samuel A. Le Blanc, of the Court of Appeal, First Circuit, having been called upon by previous order of this court to sit in the case, pronounced the judgment of the court therein, in words and figures, as follows, viz.:
The decedent herein Mary Ann Tallieu, departed this life in the city of New Orleans, on August 28, 1933. Three days thereafter, her sisters, Mrs. Phoebe E. Tallieu, wife of Marcellus H. Crary, and Mrs. Elizabeth Tallieu, widow of William Mestermaker, petitioned the Civil district court for the parish of Orleans for an order to institute search among her effects and particularly in a certain bank box in the Poydras branch of the Whitney National Bank, for a last will and testament, which, they allege, they verily believe had been left by her.
The court granted the order, and Warren O. Coleman, notary public, was authorized and instructed to make the search and to produce the will, if found, in court.
The notary proceeded immediately to make the search as directed, and on September 5, 1933, made his report, in the form of a procès verbal, to the court, in which he declared that he had found what purported to be either a will or a rough draft of a will, written on a tablet, in a box at the residence of the decedent, which tablet he presented intact, with his procès verbal.
On September 18, 1933, the same petitioners who had obtained the order to institute the search for the will again appeared in court in a formal petition for the purpose of attacking the document that had been found by the notary and presented by him to the court, on the ground that it was not the last will and testament of the deceased. The material allegation of their petition, on which their whole attack is grounded, is found in article II thereof, which reads as follows:
"Petitioners aver that the said document is not a will and was not intended to be the last will and testament of the deceased, Mary Ann Tallieu as will be shown by the fact that she has defaced the same on each page in such way as to show clearly that she did not intend the said document to be the last will and testament; that all of the interested parties should be cited herein in order that their rights, if any, under the said document might be definitely ascertained."
In the alternative, they allege that should the court be of the opinion that the said purported document is a valid olographic will, that the same be probated and that as the name of the executor therein named had been scratched and canceled, Mrs. William Mestermaker, one of the petitioners, should be named dative testamentary executrix upon complying with the requisites of the law. The prayer of the petition is in accordance with the allegations therein made. The only parties in interest, besides the petitioners, are alleged to be Mr. Guy Van Lyman, who had been designated as executor in the said document, but whose name had been erased, and the Society for Prevention of Cruelty to Animals which had been granted a bequest thereunder.
On November 9, 1933, these same petitioners filed another petition, similar in all respects to the one filed on September 18, 1933, except that several other parties are alleged to have been named as legatees in the document which is referred to as a purported will, and citation is asked for on all of those so named. The prayer of that petition, like that of the first, is that the said document presented to the court "be declared not a will," and that Mrs. William Mestermaker be named as administratrix of the succession of the decedent, and in the alternative, should the said document be declared a last will and testament, then that the same be probated, registered, and executed, and that Mrs. Mestermaker be confirmed as dative testamentary executrix upon complying with the requisites of the law.
Several of the parties cited appeared and answered these petitions, among them Westminster Presbyterian Church, which also filed an exception of no cause or right of action. The exception was argued and submitted to the court on the pleadings and the record, and from a judgment sustaining the same and dismissing their demands, Mrs. Mestermaker and Mrs. Crary have taken this appeal.
It is observed at the outset that there is no contention made of fraud, error, mistake, or undue influence, in the drawing and signing of the document that is contested, nor is there any suggestion of mental impairment or physical infirmity or of any legal or other incapacity in the testatrix which might have prevented her from making a will. It is not even intimated that the document is not entirely written, dated, and signed by the hand of the testatrix. The one and only plea, as far as the petition discloses, on which the attack on the document presented is based, is that the person who prepared and signed it herself defaced it on each page in such manner as to indicate her intention that that document was not to be her last will and testament.
The document is before the court in its original form, and of course it controls all allegations of the petition that have reference to it. We mention this because, from the allegation made, it might be assumed that the document was so badly defaced as to have been mutilated almost beyond recognition; or, to express it in another way, that the erasures on each and every page were so pronounced that it was plainly the decedent's purpose to thereby show a change in her intention in case any one who afterwards saw the document might be led to believe that it constituted her last will and testament.
The document, as declared in the procès verbal of the notary, is written in lead pencil on the pages of a writing tablet. The tablet is of smooth paper and of the ordinary small size. Including the last page on which the date and the signature appear, the written part consists of nine pages, some of which are separated, and the rest of the tablet is left intact. It may properly be said that the document is in a rather crude form, but outside of the sacramental statutory requirement as to being wholly written, dated, and signed by the handwriting of the testator, we know of no other requirement relating to the form of an olographic will. Indeed, by the very terms of the article of the Code itself, such will "is subject to no other form." Civ. Code, art. 1588.
The first page of the document begins with the solemn declaration, "I Mary Ann Tallieu do hereby make this my last will and testament," which is followed by a statement to the effect that the testatrix was never married and has no forced heirs. The second page contains the date, to wit, "New Orleans, La., June 9th, 1926," a restatement that the testatrix was never married and has no forced heirs and the declaration again that this document is to constitute her last will and testament. There are light pencil marks drawn in a sort of circular and semicircular fashion, not enough to obliterate the writing, however, over the restatement and declaration on this second page; but the date is left absolutely intact. These marks, if taken as an indication of any purpose the testatrix may have had in mind, would seem to show that she realized that she had repeated the statement and declaration already made, and this was unnecessary. It is significant to note, however, that she was careful not to project these pencil marks over the date which she evidently considered a material part of the will.
The six pages following are devoted to the numerous bequests that are made and the last page contains the date again and the signature of the testatrix which is affixed twice. She signed her name as though to close the will and then, to make "assurance doubly sure" as it were, she wrote the date again; this time spelling the word, "ninth" after writing the month "June," and lastly, so that there could be no question as to her signature, significantly wrote the words: "Signed by me Mary Ann Tallieu." This last page, it may here be stated, is without a mark or blemish of any kind.
The marks that are drawn across some portions of the other pages are all light pencil marks, none of which affect the legibility of the words they are drawn over. They are very irregular in shape, and whilst some of them would seem to have been purposely made to cancel a particular bequest, or some other provision of the will, that is not so with regard to all of them.
In face of the positive declaration made by the decedent herself that she did, by this very document, "make her last will and testament," it would be difficult indeed to conceive how she could have given stronger expression of her intention to make her testamentary disposition. The animus testandi is found in her own solemn words written in the document by her own hand, and outside proof of this or of a contrary intention would be of little value, if indeed admissible under the pleadings now before the court.
We are given a few examples of cases where an instrument which was intended to serve merely as a rough draft or copy of a will could very easily have been mistaken and used as a will, and are asked under such circumstances, when the document is presented for probate, should not the interested parties be permitted to show that it is not the will of the person who made and signed it, as it never was intended by him to be used as such. Aside from the examples cited being a bit far-fetched and not furnishing a fair and good comparison, our answer would be that certainly, if the parties attacking such instrument made proper allegations showing the circumstances under which it was drawn, it is likely that their petition would be held to disclose a cause of action and be open to proof. But such is not the issue in this case in which, as already stated, the only allegation on which these appellants have based their cause of action is to the effect that by the defacements and erasures made by the decedent herself on the document presented, she indicated that she did not intend it to be her last will and testament.
The intention of the testatrix to make this document serve as her last will and testament having been so positively expressed by her, the question which arises then is, Are the marks, or defacements as they are referred to in the petition, sufficient to indicate a change of mind or intention on her part? In other words, are these marks and erasures important enough to strike the document with nullity when considered as a will, or do they evoke an intention to revoke the will, granting that the document was intended to serve as a will?
Treating of erasures and additions in wills, the Civil Code, under article 1589 provides that:
"Erasures not approved by the testator are considered as not made, and words added by the hand of another as not written."
As amended by Act No. 87 of 1871, the article now further provides that:
"If the erasures are so made as to render it impossible to distinguish the words covered by them, it shall be left to the discretion of the judge to declare, if he considers them important, and in this case only to decree the nullity of the testament."
There is no question here that the erasures or marks found on the document were not approved by the testatrix, and, as we have already stated, they are so lightly drawn that it is very easy to distinguish the words covered by all of them. Under the two different provisions of the article cited therefore, the erasures in this case can be disregarded altogether. Not having been approved by the testatrix, they are to be considered as not having been made, and since they have not rendered it impossible to read the words which they cover (in which event it would even then be left to the discretion of the judge to pass on their importance, and in that case only to decree the nullity of the will), we do not see how they could be given any consideration in construing a change of intention on the part of the testatrix after she had so solemnly expressed her desire to make her will by means of that document.
Counsel for appellants cited with much confidence the case of Succession of Muh, 35 La. Ann. 394, 48 Am. Rep. 242, but the striking difference between that case and the present becomes apparent when we read in the opinion of the "painstaking and elaborate defacing and blotting out of the signature. * * * That was the act, it is also stated, which, to the apprehension of the testator, destroyed the document as a will. In commenting on the provisions of the article of the Code in regard to erasures, it was said:
"But it is apparent the Article is not treating of the erasure of a signature to a will. The erasures, which are considered not made if not approved, are those which change or strike out parts or clauses of a paper recognized as an existing will, not that part, the erasure of which would destroy it as a will. Erasures of clauses in the body of the will affect only the dispositions erased. Erasure of the signature strikes at the existence of the instrument as a will."
In this last sentence is found the underlying reason on which the decision rests. The marked contrast in the case now before us lies in the fact that the only erasures are of certain clauses in the body of the document which is otherwise valid as an olographic will, in that it is wholly written, dated, and signed by the hand of the testatrix.
Neither, for the same reason, do we think the erasures sufficient to effect a revocation of the will. It might very well be that the erasure of the signature or of the name of a sole universal legatee under a will could be construed as an intention to revoke on the part of the testator, because without a legatee or a signature there would be no will. But conceding, for the sake of argument, that the erasure of a certain clause in the body of the will would have the effect of revoking that clause, it certainly could not have the far-reaching result of revoking the will as a whole.
But counsel urge further that from these erasures there resulted an act which supposed a change of will, and consequently the revocation took place according to the provisions of article 1691 of the Civil Code. That article treats of the several kinds of revocation of testaments, one of which is called the "tacit" revocation, and with regard to this form, the article reads:
"It is tacit when it results from some other disposition of the testator, or from some act which supposes a change of will."
The question that presents itself then, is whether the mere drawing of pencil marks across certain clauses and provisions in the body of a will constitutes such an act as is contemplated under the terms of the article.
Article 1692 of the Civil Code, which relates to the form of the act of revoking, provides that
"The act by which a testamentary disposition is revoked, must be made in one of the forms prescribed for testaments, and clothed with the same formalities."
This article, it was held, in Succession of Hill, 47 La. Ann. 329, 16 So. 819, 821, refers to all revocations mentioned in article 1691 of the Code, except the tacit revocation. With regard to the form of act necessary to effect the tacit revocation, it is stated that the words "other disposition," used in the article, mean "when the testator has made another testament, and the disposition therein is such as to tacitly destroy the effect of a prior disposition; and the language, `from some other act which supposes a change of will,' is to be interpreted and explained by the following article of the Code (1695), which says: `A donation inter vivos, or a sale made by the testator of the whole or a part of the thing bequeathed as a legacy amounts to a revocation of the testamentary disposition for all that has been sold or given even though the sale or donation be null and the thing have returned into the possession of the testator, whether by the effect of that nullity or by another means.'" Certainly the mere drawing of pencil marks across certain provisions in the body of a will cannot be classed as an act coming within the terms of that article of the Code. We believe that the following language quoted from the opinion in the Succession of Hill Case, is also pertinent to the question here under discussion:
"Under article 1691, as explained by subsequent articles, there are only two modes of revoking a valid testament, — the one by a written instrument clothed with the formalities of a last will and testament; and the other by a donation inter vivos, or a sale of the thing, in part or in whole, bequeathed. The acts and declarations of the testator do not come within the tacit revocation expressed in the Code. * * *
"The fact that there was no erasure of her signature or that of the legatee, and the will was in existence at the time of her death, is, we think, evidence that she did not intend to alter her mind in relation to her disposition in the testament. * * *
"Until the change of mind or intention is expressed in the mode pointed out by law, the original intention is presumed to exist."
In the present case, a period of more than seven years elapsed between the date on which the testatrix executed her will and the date of her death. The will was found in a box at her residence where it was no doubt readily and easily accessible. Certainly she had ample time and opportunity, if she had undergone a change of mind with regard to her will, and wanted to revoke it, to execute that change by some act more expressive than the mere drawing of a few pencil marks across certain clauses therein. This, we hold, does not constitute such an act as "supposes a change of will" under article 1691 of the Code.
As authority on this point also, counsel for appellants refer to the opinion in the case of Succession of Muh, supra, wherein certain language might be interpreted to mean that erasures in his will, by the testator, might be construed into an act of revocation. It is significant to note, however, that in Succession of Hill, supra, that decision was also cited as authority, and, in commenting on it, it was said:
"In that case, we think, in the opinion, there was, in the language of the court, some confusion in treating the destruction of the will with its revocation, and construing article 1691 of the Code as referring to acts which amount to a destruction of the testament."
It is then made plain that the Code nowhere provides for the revocation of a will by destruction, no doubt for the simple reason that after the destruction of the will by mutilation the situation is the same as though there had never been any will at all, and there exists no necessity for its express or tacit revocation. On this point, the case Succession of Hill is controlling, and we hold that there was no revocation of the will.
As limited by the issue presented on the petition of these appellants to have the document presented declared not a will, we are of the opinion that the judgment of the lower court correctly sustained the exception of no cause or right of action, and properly dismissed their demand, and it is accordingly affirmed.
O'NIELL, C.J., and OVERTON and ODOM, JJ., dissent.
O'NIELL, C.J., hands down reasons.
I fully concur in the majority opinion and in the decree affirming the judgment appealed from, but I feel impelled by the minority opinion to make the following observations.
I respectfully submit that if there is any pretermission of the point at issue in this case it occurs in the discussion contained in the minority opinion and not in the discussion contained in the majority opinion.
Plaintiffs' petition attacking the will of Miss Tallieu is exceedingly short. It consists of four articles and the prayer. Article 2 contains the gravamen of plaintiffs' complaint, and article 3 contains an alternative demand for the appointment of a dative testamentary executor, in the event the will should be held valid. Article 2 of the petition reads in part as follows, viz.:
"Petitioners aver that the said document is not a will and was not intended to be the last will and testament of the deceased, Mary Ann Tallieu, as will be shown by the fact that she has defaced the same on each page in such a way as to show clearly that she did not intend the said document to be the last will and testament, etc."
The argument in the minority opinion rests wholly upon the assumption that the controlling portion of the quoted article is contained in its opening statement, namely, "that the said document is not a will, and was not intended to be the last will and testament of the deceased, Mary Ann Tallieu." But that statement is merely a general allegation setting forth the conclusion of the pleaders. Standing by itself, it is entirely too vague and indefinite to support the petition. The specific ground of plaintiffs' attack on the document under review is contained in that portion of the quoted article, which is referred to in the minority opinion as an "amplification" of the pleaders' conclusion, reading as follows, viz.: "As will be shown by the fact that she (Miss Tallieu) has defaced the same (the will) in such a way as to show clearly that she did not intend the said document to be the (her) last will and testament." That is the allegation which sets forth plaintiffs' cause of action, and on the sufficiency of which their suit must stand or fall.
Doubt frequently arises whether a particular instrument operates as a will or as an instrument of a different type. In such cases, parol evidence is admissible to show the intention of the maker of the instrument. But where an instrument speaks for itself and by its terms is a testamentary disposition and incapable of operating in any other way, the animus testandi must be implied, and parol evidence is not admissible to show any different intent.
The document propounded as the last will and testament of Mary Ann Tallieu was entirely written, dated, and signed by her. It was written as a will, and seems to have been intended as such. It was executed in the prescribed form, and was found carefully put away among the effects of the testatrix after her death.
The document begins with the solemn declaration: "I Mary Ann Tallieu make this my last will and testament." This declaration is followed by the statement that the testatrix has never married, and has no forced heirs. Then follows a number of bequests, through some of which light pencil marks are drawn and others of which are left intact. The document ends with the signature of the testatrix and the date on which it apparently was written.
One of the rules for the construction of wills, as I understand, is, that when a testator has executed a will in solemn form, it must be assumed that he did not intend to make it a solemn farce; that he did not intend to die intestate when he has gone through the form of making a will.
I find nothing in the document propounded as Miss Tallieu's will, which must be construed as a whole, that would authorize the court to impute to the testatrix the intention of dying intestate rather than testate. On the contrary, the document is testamentary both in form and in substance. The writer's testamentary intention is not destroyed by the light pencil marks drawn through certain of the testamentary dispositions. And it is immaterial that the will is contained in a writing tablet, since in the making of wills any material capable of receiving and retaining a legible and reasonably permanent impression may be used. It is also immaterial that the will was written on separate pages of the tablet, since the pages are so intimately connected that they may be identified as parts of the same instrument. The fact that the will is the only writing appearing in the tablet strengthens, rather than weakens, the view that Miss Tallieu intended the writing to be her last will and testament. This view is further reinforced by the fact that the testatrix carefully preserved the tablet, which was found among her effects after her death.
The suggestion that the writing was merely a memorandum prepared by Miss Tallieu with a view of making her will does not appeal to me as reasonable. If the writing was to serve merely as a memorandum for a will, there is no reason why the testatrix should have formally dated and signed it, thereby completing the will. A will wholly written, dated, and signed by the testator is a complete will. And Miss Tallieu apparently made no other will, notwithstanding that a period of more than seven years elapsed between the date on which she executed the document herein propounded as her will and the date of her death.
The only question in this case is whether the plaintiffs' allegation, that the writing done by Miss Tallieu on the ten pages of paper was not intended to be her last will and testament, and therefore was not her last will and testament, sets forth a cause of action. The proposition on which the plaintiffs rely, that a writing in the form of a will is not a will if it was not intended to be a will, is too trite to need citation of authority. Hence, if the plaintiffs can prove, as they allege, that this writing, which the notary public found, on the first ten pages of a writing tablet, was not intended by Miss Tallieu to be her last will and testament, the writing should not be admitted to probate as the last will and testament of Miss Tallieu.
The dismissal of this suit on an exception of no cause of action may be construed as prejudging the whole case, and as foreclosing the issue which the plaintiffs tender, without allowing them a hearing on the facts of the case. The allegation in which the plaintiffs state their cause of action is "that the said document is not a will, and was not intended to be the last will and testament of the deceased, Mary Ann Tallieu." In amplification of this allegation, the plaintiffs add: "As will be shown by the fact that she has defaced the same on each page, in such a way as to show clearly that she did not intend the said document to be her last will and testament." But this allegation, that Miss Tallieu defaced the writing on each page in such a way as to show clearly that she did not intend the writing to be her last will and testament, is not the allegation of fact which sets forth the cause of action, but is merely an allegation made in support of the fact which is the cause of action; that is, that Miss Tallieu did not intend the writing to be her last will and testament. The plaintiffs say in their brief that they can produce ample testimonial proof that Miss Tallieu did not intend this writing to be her last will and testament, but merely wrote on the tablet a memorandum of what bequests she might see fit to make in her last will and testament. The plaintiffs were not obliged to set forth in their petition the evidence on which they intended to prove that the writing in question was not intended by Miss Tallieu to be her last will and testament. Their allegation that Miss Tallieu's intention, in that respect, was shown by the way in which she defaced the writing on each page of the tablet should not preclude the offering of additional evidence of the fact alleged, as to Miss Tallieu's intention.
I respectfully submit, therefore, that the error in the prevailing opinion in this case is in the statement:
"The one and only plea, as far as the petition discloses, on which the attack on the document presented is based, is that the person who prepared and signed it herself defaced it on each page in such manner as to indicate her intention that that document was not to be her last will and testament."
The signers of the prevailing opinion in this case pretermit the only question in the case; id est, whether the writing in question was intended by Miss Tallieu to be her last will and testament. It is said in the prevailing opinion:
"The intention of the testatrix to make this document serve as her last will and testament having been so positively expressed by her, the question which arises then is: Are the marks, or defacements, as they are referred to in the petition, sufficient to indicate a change of mind or intention on her part? In other words, are these marks and erasures important enough to strike the document with nullity when considered as a will, or do they evoke an intention to revoke the will, granting that the document was intended to serve as a will?" (The italics are mine.)
Of course, if we disregard the allegation that this writing on the tablet was not intended by Miss Tallieu to be her last will and testament, and if we accept as true the formal statement in the writing that it was intended to be her last will and testament, and if we indulge in the "granting that the document was intended to serve as a will," that is the end of the case, as to that issue. But that is merely a pretermitting of the question which the plaintiffs have tendered for decision.
Although I do not subscribe to the idea that the plaintiffs' pleadings are such that the case must be decided on the face of the papers, I must say that the very appearance of the writing on these ten sheets of paper leaves a strong impression that the writer did not intend the writing to be the finished product of her last will and testament. The writing seems to be merely a memorandum of the writer's contemplations, meditations, and changes of mind from time to time, in preparation for the making of a will. The disconnected scribblings cover only parts of the first 10 pages of an 80-page writing tablet; the remaining 70 pages being unused. That fact of itself is a strong indication that the writer was merely practicing, so to speak, with a form which some one had furnished her, and with no idea that a court of justice might regard her scribblings as her way of solemnly and finally expressing her last will. I respectfully submit that the signers of the prevailing opinion in this case attach too much importance to the formal and technically correct language which Miss Tallieu used in the beginning and at the end of her scribbling. She begins her pencil memorandum thus: "I Mary Ann Tallieu do hereby make this my last will and testament. Having never married I have [`having' is written over `I have'] no forced heirs and in full possession of my faculties I desire all debts [the word `debts' is written over `bills'] incurred through [the word `through' is written over `by'] illness funeral expenses (to Mr. Bultman according to my instructions sealing up of ___ place. One hundred dollars 50." That is the end of the first page, and beginning at the top of the other side of that page the writing continues: "To Metarie Cemetery for perpetual care and legal proceedings." That is all that there is on that page. The second page contains a new beginning, thus: "New Orleans, La., June 9th, 1926. I have never married, have no forced heirs and am in full possession of all my faculties I do solemnly declare that this is my last will and testament." All of that, however, except the date, is stricken out by circular strokes of the pencil. Then begins another paragraph on that page, thus: "I bequeath to Mrs. Elizabeth Tallieu Mestemaker one thousand dollars, to Mrs. Phoebe Tallieu Crary one thousand dollars." Then follows a paragraph which is illegible, and is stricken out by the circular strokes of the pencil. The third page begins thus: "To the Home for Incurables one thousand [the words `one thousand' are written over `Five hundred']. To the Society Prevention of Cruelty to Animals Two [the word `Two' seems to be written over `one'] thousand dollars." Then comes the legacy which is claimed by the party who filed the exception of no cause of action in this case, every word of which legacy is carefully stricken out by pencil lines drawn across the page, viz.: "$500 to Westminster Church, U.S.A. I wish a box of concrete made in my burial place to put my coffin in, also to have in [meaning `it'] sealed according to instructions in my bank box. The sum of Two [the word is written over `one'] hundred [` 50' is interlined here] dollars to be given to the Metarie Cemetery for the care of my coping." That is also stricken out and is the end of the page. On the next page is a direction for the conducting of the funeral, which is stricken out, and a direction that the expenses of last illness are to be paid by the executor, which is not stricken out, and then follows the residuary legacy, which is thoroughly stricken out, viz.: "Whatever is left of my estate I bequeath to the Saint Charles Avenue Presbyterian Church for the purpose of paying or helping to pay what they owe to the First Presbyterian Church, Lafayette Square." Then follows a paragraph of formal expression, thus: "This is my last will and testament entirely written dated and signed by me on the ninth day of June in the year of our Lord nineteen hundred and twenty-six in the city of New Orleans, State of Louisiana, United States of America. I appoint Mr. Guy W. Lyman [the name `Mr. Guy Van W.' is stricken out, and the name `Lyman' is interlined above it] executor of my estate [the words `with full seizen' are written over the words `of my estate'] and without bond." That is the end of that page. At the top of the next page the name Guy Van W. Lyman is again written and again stricken out. Then follows the bequest: "I leave my piano to the Seventh Street Protestant Home." That is not stricken out. Then follows the significant statement: "My parlor set to some institution that would need it." The words "some institution" are stricken out, and the words "Gentilly feeble minded" are interlined above, and are also stricken out. Then comes the significant statement: "My clothes to the Alms House or Shakespeare Home — Books to the Seaman's Bethel [the name `Marine Hospital' is written over `Seaman's Bethel'] — My furniture to be given some charitable institution." On the next following two pages are bequests of articles of jewelry to different persons, with the names of the legatees stricken out and other names substituted. The writing on the eighth page is not completed, and does not fill the page. The ninth page contains only the signature and date, thus:
"Mary Ann Tallieu
"June ninth 1926
"Signed by me
"Mary Ann Tallieu."
At the top of the tenth page is the word "codicil," and there is nothing else on that page or on the remaining 70 pages.
I do not see how any one can doubt that Miss Tallieu did not intend that these scribblings themselves should be her last will and testament. For that reason, I do not consider the prevailing opinion on the subject of the revocation of testaments as being at all important. The decision in Succession of Muh, 35 La. Ann. 394, 48 Am. Rep. 242, therefore, is not appropriate to the facts of this case. But the broad principle on which that case was decided is appropriate here; that is to say, that an instrument is not a last will and testament, no matter how complete and correct its form may be, if the writer did not intend that it should stand as his last will and testament.
Of course, if the prevailing opinion in this case is founded, as I understand it is founded, upon the want of a sufficient allegation that the writing in question was not intended by Miss Tallieu to be her last will and testament, no great harm will be done, because the plaintiffs may renew their suit by alleging, unqualifiedly, that Miss Tallieu did not intend the writing to be her last will and testament. But, if the decision in this case is construed to mean that any document entirely written, dated, and signed by the party deceased, and purporting to be his or her last will and testament, must prevail as his or her last will and testament, even though it was not intended by the writer to be his or her last will and testament, then I say, with great respect, that this decision will be harmful.