Adams v. Norris. a suit, even though the testament could not be produced. The right exists independently of that evidence. Merlin, verbo preuve. Gab. des preuves, 368, 450. This testator died in 1848. His devisee seems to have taken possession of the property bequeathed to him. There is no testimony of any action by the tribunals in California previously to the organization of the State government. We know that the political condition of California from the time. of the death of the testator until the organization of that government was chaotic, and no inference can be drawn from such an omission. Immediately after the organization of that government, the common law of England was introduced, and the ancient legal system of the department abrogated. No provision was made for the probate of wills that had been executed before the introduction of that system. "The statute of the State," say the supreme court of California, "fails to require wills exe- [* 363] cuted before its passage to be probated;" and "this was * not a casus omissus;" but "the legislature actually intended to exclude them from the operation of the statute altogether, leaving their validity to rest upon the laws under which they were made." Grimes v. Norris, 6 Cal. R. 621. And in Castro v. Castro, 6 Cal. R. 158, they say, that a will is regarded by the courts of England and the United States as a conveyance, and takes effect as a deed, on proof of its execution, unless there be some express statute requiring it to be probated. Conceding, therefore, that, under the Mexican system, the preliminary proof of the will before some public authority was necessary to give it probative force in a court of justice, that condition has been altered by the statutes of California before adverted to. Our conclusion is, that the codicil was not inadmissible as testimony, because it had never been admitted to probate, and because the witnesses who were present at its execution had never been examined to establish it as an authentic act. The next inquiry will be, whether the codicil is null because it does not appear on the face of the will that the witnesses were present during the whole time of the execution of the will, and heard and understood the dispositions it contained. The laws that prescribe these formalities do not require that express mention shall be made of their observance under the penalty of the nullity of the testament. Bonne v. Powers, 3 Martin, N. S. 458, the question arose in Louisiana upon a will made in 1799, before the change of government. In The supreme court say: "The Spanish law did not require, as our code does, it should appear on the face of the instrument itself. that all the formalities necessary to give effect to a will previous to Vol. iii-38 Adams v. Norris. the signature of the testator and the witnesses had been complied with." In Sophie v. Duplessis, Louis. Ann. R. 724, the supreme court say: The principle invoked by the defendants, that a will must exhibit upon its face the evidence that all the formalities required for its signature have been fulfilled, has no application to nuncupative testaments under private signatures. Such [364] testaments are not required* to make full proof of themselves, and the observance of formalities which do not appear on the face of the will may be shown by testimony dehors the instrument. Biec, in his supplement to Escriche, reports the case of a mystic will attached for nullity, because the solemnities required for those of that class, in the law of the Partidas before cited, did not appear to have been followed. The supreme tribunal of justice in Spain sustained the will. Sup. al. dic. v. Testamento. And the same conclusion is maintained by the French jurists upon similar statutes. Merl. Rep. v. Testament. In order to show that the codicil was valid and translative of property, the defendant introduced evidence of a custom in California as to the manner of making wills, and the jury were instructed that the evidence was competent; and that, if the custom was so prevailing and notorious that the tacit assent to it of the authorities may be presumed, it will operate to repeal the prior law. The civilians state that customs which are opposed to written law are held to be invalid, unless they have been specially confirmed by the supreme power of the State, or have existed immemorially; and it is not material whether they consist in the non-observance of the written law, or in the introduction of principles or practices opposed to such law; that every valid custom presupposes a rule, observed as binding by the persons who are subjected to it, by an unbroken series of similar acts; and that it belongs to the sound, legal discretion and conscience of the tribunals to determine by what testimony such a custom can be established. Lind's Study of Juris. 14, 17, and note. The Spanish codes recognize these principles. They say, to establish a custom, the whole or greater part of the people ought to concur in it; that ten years must have elapsed amongst persons present, and twenty at least amongst persons absent, in order to its being introduced; that it may be proved by two sentences of judges or judgments given upon or according to it; that, being general and immemorial, it may repeal or alter the anterior law, the approbation of the prince being supposed or presumed. [* 365 ] De Asso & Rodri. Inst. ch. 1. 1 Febrero, 55. Adams v. Norris. nature, and its existence for the period must be assumed from the verdict of the jury. It is a rule of property pervading in its application, and necessary to be known in order that judicial administration should be carried on. The recognition of such a rule, if it exists, was therefore to be looked for from the superior and supreme tribunals of the State of California. In the case of Panaud v. Jones, 1 California R. 497-505, the supreme court say: "The custom with respect to the execution of wills, so far as the testimony goes, appears to have prevailed generally and for a long time in California. It may have been the universal practice from the first settlement of the country." In Castro v. Castro, 6 Cal. 158, this observation is cited, and the court say: "That it is shown, from the testimony of various witnesses, that two [witnesses to a will] were sufficient under the customs of California." The same fact is restated in the case of Tevis v. Pitcher, 10 Calif. R. 465. Nor is such a change in the mode of transfer of property a singular fact in the history of the American States. Several cases are mentioned in the opinion of the court in Panaud v. Jones, above cited, and a similar instance is mentioned in Fowler v. Shearer, 7 Mass, 14. Nor is the existence of such a departure from the written law extraordinary, when the circumstances of the early history of the department are understood. The most important of the arrangements for the colonization of the department related to the establishment of the military districts and presidios, and the mission establishments in close proximity to them. The priests and soldiers were the most conspicuous and influential members of the department, and exerted supreme influence in its political and economical arrangement. The Spanish laws relieved the soldier from the inconvenient formalities that attended the execution of the ordinary nuncupative or closed testament, and authorized him. to make a nuncupative will before two witnesses, or an olographic will. The canon law distinctly reprobates (præscriptam consuedudinem improbamus) the requirement of seven or five witnesses for the testation of a will: "secundum quod leges humanæ decer * * * *nunt;" "quia vero a divina lege et sanctorum [* 366 ] Patrum institutis et a generali ecclesiæ consuetodine id noscitur esse alienum cum scriptum sit, in ore duorum vel trium testium stet omne verbum." Decret. Greg. lib. 3, tit. 26, ch. 10. The precept and example of these dominant classes in the department may possibly have exercised a controlling influence in forming the habitude of the population on this subject. And if Adams v. Norris. it became prevailing and notorious, so as that the assent of the public authorities may be presumed, upon principles existing in the jurisprudence of Spain and Mexico, the acts of individuals, in accordance to it, are legitimate. This codicil was written in the Spanish language; and it is to be inferred that there was testimony that the testator and one or more of the witnesses understood that language imperfectly. The instructions of the circuit court required the jury to find that the testator dictated the contents of the codicil to the witnesses, they being assembled at the same time, and that it should be then read in the presence of all, so that it was understood by all, and that the testator should then have declared it to be his last will; and the court informed them that if the testator did not understand the language, and there was not present any one who explained and interpreted the codicil in the presence and hearing and understanding of the witnesses, the document was not a valid instrument; and also, if neither the testator nor a sufficient number of the witnesses understood the language of the codicil, that it was not valid. The Roman law did not require the witnesses to a Latin will to understand the Latin language: nam si vel sensu percipiat quis, cui rei adhibitus sit, sufficere." It is admitted by the civilians that a testator may dictate his will in his own language, and the will may be drawn in another, provided that the witnesses and notary understand both. The object of the law is that the instrument shall express the intentions of the testator, and it does not require the reproduction of his exact words. Whether the witnesses should understand the language of the will, has been the subject of much contest among those writers; and names of authority may [*367] be cited in favor of either opinion. But the current of judicial authority seems to have decided it is not necessary that the witnesses to a testament should comprehend the language in which it is written. And the same authority has settled that the witnesses should understand the language of the testator. * 16 Dalloz. jur. gen. tit. disposi. entre vifs. et test. No. 3126; 3 Trop. don. & test. No. 1526; 2 Marcad. Exp. 15; Escriche dicc. verb. interprete. The instruction of the presiding judge to the jury, that the testator and witnesses should alike hear and understand the testament, and that, under these conditions, its publication as the will of the testator should be made, embraced all that it was necessary to be said upon this part of the case. The last inquiry to be made refers to the weight to be given to Wiseman v. Chiapella. the testimony adduced in support of the factum of the codicil. This consists of the proof of the signatures of the deceased witnesses and of the testator, and of some declaration by him that he had made a will with a similar devise. We comprise, among the witnesses to the will, Ridley, the sindico. It does not appear that a sindico was charged with any function in the preparation or execution of testaments by the law or custom of California. Nor is it clear that the sindico in the present instance expected to give any sanction to the instrument by his official character. He attests the execution of the will, and we cannot perceive why the description of himself which he affixes to his signature should detract from the efficacy of that attestation. The binding force and legal operation of this codicil are to be determined by the law, as it existed when the codicil was made. But the mode in which it should be submitted to the court and jury, and the effect to be given to the testimony that accompanied it, depend upon the law of the forum at the time of the trial. The evidence of the signatures of the testator and witnesses was competent; and it was a proper question to be submitted to the jury, whether, under the circumstances of the case, it * was probable the formalities required by the law were [* 368] complied with. As suppletory proof that the testator had made the codicil, and was acquainted with the contents of the instrument, the admission or declaration offered as evidence was competent testimony. Upon a review of the whole case, our opinion is, there is no error in the record, and the judgment of the circuit court is affirmed. WILLIAM WISEMAN, Plaintiff in Error, v. ACHILLE CHIAPELLA. 23 H. 368. BILL OF EXCHANGE-PROTEST-DEMAND, &C. 1. A notary public who has called several times at the business place of the acceptor of a bill of exchange on the day on which it is payable, and finds no person present to answer his demand, is not bound to seek such acceptor at his private residence. 2. His certificate that, with the draft in his possession, he had called several times on that day at the business place of the acceptor, is prima facie evidence that it was done at proper business hours; and if this is denied, the proof that it was not so devolves on the party disputing it. 3. The law in this respect, as regards presentation for acceptance, differs from presentation for payment. WRIT of error to the circuit court for the eastern district of Louisiana. The case is fully stated in the opinion. |