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There is no signature of witnesses, nor writing upon the paper, except that of the testator.

The argument of counsel has been principally directed to the last clause revoking all former wills, which comes after the date given to the closing part of the principal testamentary disposition. This, though in the handwriting of and signed by the testator, has no date appended to it. The counsel for the plaintiffs, who are legatees under the New York will, contend that the two wills may stand together, and that they are entitled to their legacies. The defendants, who claim exclusively under the Louisiana will, insist on the revocation of the New York will, by the clause we have recited. To this effect was the judgment of the district court, and the plaintiffs have appealed.

The case turns on the consequence attending the posterior clause not being dated. The code provides, that for the validity of an olographic will it must be entirely written, dated, and signed by the hand of the testator. It is subject to no other form, and may be made out of the state: Art. 1581. ticle bears a close resemblance to the article 970 of the Napoleon code, from which it was probably taken. The olographic was a form of testamentary disposition recognized in France before the adoption of the Napoleon code. The jurisprudence on the subject appears to be settled. Merlin thus states and solves the question as to the necessity of the date to the olographic will:

“ Where an olographic testament contains several dispositions, of which the first one, at the same time dated and signed, and the second are only signed by the testator, are the latter null for want of date? They are; provided that from the manner those clauses are conceived and placed, they can not be considered to have been written immediately after the first, and on the same day that the first was written. But if, according to the contents or position of the second clauses, it appears that they could have been written on the same day with the first, we ought to presume that they were so in effect, consider them as forming but one and the same testament, and apply to the whole, which is composed of the different clauses, the general principle, that it is sufficient for the validity of the olographic will, that it be dated in the context, without its having a date at the end:” Merlin's Rep., verbo Testament, sec. 11, par. 1, art. 7. Duranton is to the same effect.

The law not having fixed the place in which the date must be

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put in an olographic will, it may be placed not only at the head but also at the foot of the instrument, and in the body of it. A date, though affixed to the first clause and before the second, may be applied to one as well as to the other and thus both may be considered as dated and signed: Droit Français, lib. 3, tit. 2, sec. 34 et seq.

The opinion of Toullier, cited by the counsel for the plaintiff, which requires the date to clauses added by the testator to an olographic will, though stated in general terms, does not appear to have been acquiesced in by other commentators on the Code Napoleon, or to be supported by the jurisprudence of the court of cassation: Vide the case of The Heirs of Cricy, Journal du Palais, 1830, 1831, vol. 23, p. 1707.

With this single exception, we believe the commentators on that code, as well as the court of cassation, have adopted the opinion of Merlin. The diligence of the counsel has enabled us fully to examine the subject: Zachariæ, Droit Civil Français, vol. 5, p. 83, note 13; Vazeille, Traité de Successions, etc., vol. 2, sec. 17, p. 407; Delisle, Coms. on art. 970, C. N., sec. 36, p. 345; Rogion, Code Civil, art. 970. The different clauses of the instrument under consideration appear to be congruous and continuous; all of them to be parts of a last will; and the manuscript not being sent up for examination, we are bound to presume that there is no appearance of the writing having been interrupted, or of its not having been finished at one time. Under the settled jurisprudence of the Napoleon code, the instrument is clothed with the forms required for the validity of a testament. We think it furnishes us a safe guide in the case under consideration. No decisions of our own court have been adduced on either side.

Under this conclusion it is not necessary to consider the other questions raised in argument on behalf of the plaintiffs, who are legatees under the New York will. If that will is revoked, its validity under the laws of New York is not material; nor have the plaintiffs any interest to contest the validity of the testamentary dispositions of the Louisiana will. That is a matter resting with the heirs at law, and the parties in interest under that will.

The judgment of the district court is therefore affirmed with costs.



THE TERM "HOLOGRAPH,” generally written “olograph,” is derived from the Greek, and its primary meaning is “to write all.” Bouvier defines the term as, “What is written with one's hand:” Bouv. Law Dict., title Holograph. It is also defined as "a will written entirely by the testator:" Rapalje and Lawrence Dict., title Holograph. According to section 1277 of the civil code of California the terın “olographic will” is defined as follows: "An olographic will is one that is entirely written, daied, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of this state, and need not be witnessed.” The requirements of a will of this character are essentially the same as in California, with the exception of the phrase, “in or out of this state,” in the following states, viz.: Arkan. sas, Louisiana, Mississippi, Texas, Virginia, and West Virginia. In order to render an olographic will valid in the states of North Carolina and Tennessee, it must not only conform to the requirements of the states previously mentioned, but must also “be found among the valuable papers and effects of the de. ceased, or shall have been lodged in the hands of any person for safe keeping,” and “that the handwriting of the same be proved by three credible witnesses to be that of the deceased.” In each of the states herein specified, any person possessing the requisite qualifications could make a will, and in one of the states it was questioned as to whether or not a blind man could execute an olographic will that would be treated as valid. A case of this character arose, and it was determined that a blind man could make such a will and it would possess the same validity as those executed by others: State v. Martin, 2 La. Ann. 667.

OLOGRAPHIC WILL IN WHICH APPEARED Two WORDS NOT IN HANDWRITING OF TESTATOR was sustained: McMichael v. Bankston et al., 24 LA Ann. 451; but the action of the court was predicated upon its opinion “that the presence or absence of the two words can have no material effect upon the meaning or contents of the will."

DATE IN OLOGRAPIC WILL, DEFINITION OF.-The date is composed of the year, month, and day, any one of which being missing is fatal: Fuentes et al. v. Gaines, 25 La. Ann. 85. An olographic will must be dated: Estate of Mar. tin, 58 Cal. 530. When a will began as follows: “Sacramento, April 1, 1880," the words "April I” having been written by the testator, and the word “Sacramento" and the number designating the year “ 1880" were printed, it was held that the will did not conform to the statute, and consequently was not entitled to admission to probate: Estate of Billings, 1 West Coast Rep. 140. An olographio will was admitted to probate without any direct proof of the day on which it was executed, the witnesses testisying generally that it was dated in July, 1813: Succession of Clark, 11 La. Ann. 125; S. C., 3 Wood, 78. The date may be placed below the signature: Succession of Mrs. Fuquan 27 La. Ann. 273.

PLACE OF EXECUTION.- In the case of the Succession of Hall, reported in 28 La. Ann. 57, where the will failed to show the place where it was executed, the court held the failure of the testator to write the name of the place where it was executed did not necessarily invalidate the will, but the place might be proven like any other fact.

WHAT WILL CONSTITUTE SIGNING.–The requirements of the statuto in North Carolina are, that the testator's name must be subscribed to the will, or inserted in some part thereof, and that the handwriting be proved by three witnesses: N. C. R. S. 1883. The same rule prevails in Tennessee: Stat. of Tenn, 1871, secs. 2162, 2163. The name of the testator at the commencement of the paper is an equivocal act, and is not a sufficient signing to constitute it a sufficient signature: Roy v. Roy, 16 Gratt. 418; Ramsey v. Ramsey, 13 Id. 664. The will must be entirely in the handwriting of the testator: Estate of Rand, 61 Cal. 468; and the name subscribed thereto or inserted in some part of it: Tate v. Tate, 11 Humph. 465. To entitle an olographic will

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to probate, the handwriting of the deceased should be generally proven: Outlaw v. Hurdle, 1 Jones, 150. It was at an early day decided in Virginia that the signature to an olographic will need not be at the end thereof: Bailey v. Teakle, Wythe, 173; but this case was overruled in Waller v. Waller, 1 Gratt. 454, which will be found reported in 42 Am. Dec. 564.

As to PLACE WHERE WILL MAY BE DEPOSITED OR FOUND.-To render an olographic will valid, it must, in Tennesses and North Carolina, be found among the valuable papers of the testator. When so found, it indicates that the testator intended to perpetuate the paper, to show what disposition he desired to make respecting his property: Marr v. Marr, 2 Head, 303; Hooper V. McQuary, 5 Coldw. 136. An olographic will bearing a particular date is presumed to have been deposited among the valuable papers of the testator at the time of his death: Sawyer v. Sawyer, 7 Jones, 134. Where an olographic will was found in a trunk belonging to the testator, and which had been left by him with a friend for safe keeping, it satisfied the requirements of the statute: Hill v. Bell, Phill. L. 122. An olographic will found in a place where the testator kept his money, and in a different apartment from that in which he kept his valuable papers, was admitted: Hughes v. Smith, 64 N. C. 493. Phrase, “among the valuable papers," etc., does not necessarily mean the most valuable papers: Id.; Winstead v. Bowman, 68 Id. 170. An olographic will found two years after the death of the testator attached by paste or mucilage to the under side of the tray or till of a common trunk was admitted: State v. Ames, 23 La. Ann. 69. . Evidence showing that an olographic will was seen among the papers of the testator eight months before his death, but not found there at the time of or after his death, is in. sufficient: Adams v. Clark, 8 Jones, 56. The wife of the testator may act as the custodian: Harris v. Burgess, 1 Hawks, 3$4.

ATTESTATION OF OLOGRAPHIC Wills.-It is no objection to an olographic will if it has been attested by one subscribing witness, and the testator intended that it should be proved by subscribing witnesses: Brown v. Beaver, 3 Jones, 516. Nor when it has been attested by more than one witness: Andrews' lleirs v. Andrews' Executors, 12 Mart. (La.) 713: Succession of Roth, 31 La. Ann. 315. Writing propounded as will having attesting clause unsigned by witnesses, is entitled to admission to probate: Hill v. Bell, Phill. L. 122; Guthrif v. Owen, 36 Ain. Dec. 318, note.

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[5 LOUISIANA ANNUAL, 304.] BANK CHECK DRAWN “PAYABLE TO ORDER” renders the indorser liable

to the same extent as the indorser of a bill of exchange. BANK CHECKS ARE PAYABLE IMMEDIATELY on presentment. BANK CHECKS ARE NOT ENTITLED to days of grace. BANK CHEcks, in many respects, are governed by the same rules which

govern bills of exchange. THE facts are stated in the opinion. 0. Roselius, for the plaintiff. T. A. Bartlette, for the defendant.

AY. DEO, VOL. LU--38

By Court, SLIDELL, J. Bayon is appellant from a judgment rendered against him as indorser of a check in these words:

“New Orleans, October 5, 1819. Cashier of Mechanics' and Traders' Bank will pay to the order of Jerome Bayon, Esq., five hundred and seventy-eight dollars sixty-six cents. (Indorsed) J. Bayon.

(Signed) H. RODRIGUEZ.” The check was presented at the bank and protested on the day of its date, and Bayon was notified personally the next day. Although not identical with a bill of exchange, a check on a bank is in many respects governed by the same rules. When payable to order it is negotiable by indorsement; and Bayon is clearly liable as indorser, and not as a mere transferrer. It appears that the notarial record of notice was regularly made. But this is immaterial, it being proved by parol that Bayon was duly notified. It is well settled that an instrument of this sort is not entitled to days of grace. It is payable immediately on presentment.

Judgment affirmed with costs.

Tue PRINCIPAL CASE IS CITED AND APPROVED in The Succession of Ker. cheval, 14 La. Ann. 457, in which the court declared that bank checks are assimilated to bills of exchange, and the same rules govern both with regard to the necessity of demand, protest, and notice of protest.

CHECKS, WHEN TO BE PRESENTED.-In order to charge indorsers or drawers in presenting a check for payment, reasonable diligence must be used, and what constitutes such diligence must in some measure depend upon the particular circumstances of each case: Mohawk Bank v. Broderick, 27 Am. Dec. 192, and note, citing other cases where the same rule prevailed. See also Cruger v. Armstrong, 2 Id. 126; Galpin v. Hurd, 15 Id. 640; Miller v. Hackley, 4 Id. 372; Austin v. Rodman, 9 Id. 630.

DEMAND AND NOTICE TO INDORSER OR DRAWER TO CHARGE HIM.-An indorser of a note or bill is not liable until payment has been demanded of the maker or acceptor, and notice of the dishonor given: Eckfert v. Decordres, 12 Am. Dec. 609; Whitaker v. Morrison, 44 Id. 627, and note; Allen v. Merchants' Bank, 34 Id. 289, and note.


15 LOUISIANA ANNUAL, 367.] PARTY WHO FAILS TO ASSERT HIS TITLE to real estate, and stands by

silently while it is being disposed of to another, is afterwards estopped

from asserting his title thereto. ESTOPPEL OF ANCESTOR BINDS THE HEirs as well as those claiming under

him. APPEAL from the Iberville district court. The facts are statej in the opinion.

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