HAMITER, Justice.
In contest here is a document purporting to be the olographic last will and testament of Rolland D. Fellows who died in the Parish of Tangipahoa on November 4, 1948.
Decedent was survived by his widow, Mrs. Gladys DeSouge Fellows, but by neither ascendants nor descendants. His estate consisted entirely of an undivided one-half interest in property, acquired by the community previously existing between him and his said wife, which had an appraised value of $178,991.13.
[410]*410On November 10, 1948, the widow presented to the district court a petition praying for the appointment of a notary public to determine whether decedent had left a last will and testament. The notary was appointed (on the same day), and he was authorized and instructed to search for a will among the effects of decedent, particularly in any bank box standing in the latter’s name or in that of the widow.
Five days later, or on November IS, 1948, Wilbur D. Fellows (decedent’s brother) filed a petition alleging that the decedent, Holland D. Fellows, “has left a last will and testament made in the olographic form ■on the 3rd day of February in the year 1947, which petitioner files herewith in order that same may be admitted to probate.” He further alleged “that by the terms of the said last will and testament lie was made a legatee and his nephew Don Fellows was made a legatee.” On the same date, in accordance with the prayer of such petition, the instrument was probated and its execution ordered according to law.
The purported will written with a pencil, reads as follows:
“Hammond La, Feb. 3, 1947
■“This my last will and testament. I revoke all former wills. I bequeath to brother Wilbur D Fellows and my nephew Don Fellows the following property known as the Central Drug Store, Corner of Corner of Cypress & Thomas to Ben Machitta property with Wilbur Fellows holding Controlling interest and management. Stock and fixtures and 5 000 00 running Expenses
“R D Fellows”
On November 16, 1948, the day following the probate, decedent’s widow filed in the succession proceedings a petition in which she alleged that she was given no notice, as required by law, of the intention to probate the purported will and that, therefore, she did not have an opportunity to provide opposition to it when presented. She further alleged that she opposes the instrument’s probate, registration and execution on the ground that it is not a valid and genuine will, the handwriting therein not being that of the decedent. She prayed for judgment decreeing the will to he null and void.
On January 17, 1949, after the preparation of an inventory and appraisement of decedent’s property and the appointment of an administratrix, Mrs. Gladys DeSouge Fellows (the widow) instituted the instant action against Wilbur D. Fellows and Don Fellows, in the petition of which she prayed that the purported will, together with its probate, be annulled and that she be recognized as the sole heir of decedent entitled, as such, to the possession of all property left by him. Alternatively, in the event the instrument -be declared valid, she prayed that she be recognized as the owner of an undivided one-half interest in the community property sought to be donated by the will.
In support of her principal demand herein plaintiff alleged, among other things, that [412]*412(1) the purported will was written, dated and signed by someone other than decedent and, therefore, is a forgery and a fraud, and (2) that it is further null and void because of the uncertainty of the provisions thereof.
Don Fellows, decedent’s nephew and a legatee under the purported will, filed no answer and otherwise made no defense to the action. Instead, he appeared as a witness for plaintiff during the trial, as hereinafter shown, testifying that the will was not in the handwriting of the decedent. Against Don Fellows a preliminary default was entered.
Wilbur D. Fellows (the other legatee and defendant) answered, denying plaintiff’s charges of forgery and uncertainty and averring affirmatively that the will was entirely written, dated and signed by the decedent. He prayed for a trial by jury and, thereafter, for judgment rejecting the demands of plaintiff at her costs.
The district judge refused the request for a jury and ordered the case tried before himself.
After a lengthy trial, resulting in the building of a voluminous record, there was judgment against the defendants, Wilbur D. Fellows and Don Fellows, decreeing the contested will to be null, void and of no effect and recognizing' the plaintiff; Mrs Gladys DeSouge Fellows, to be the sole heir of decedent.and entitled, as such, to all of the property left by him. The judge concluded, as is shown by his assigned written) reasons, that the will was null because it was not only a forgery in its entirety but also its provisions are incapable of enforcement, they not being susceptible of any reasonable interpretation.
From the judgment only defendant Wilbur D. Fellows is appealing.
In their brief filed here counsel for appellant complain first of the district court’s refusal to order, as requested, a trial by jury; however, orally they not only did not make that complaint but rather intimated that it had been abandoned. Nevertheless, we are of the opinion that in refusing the jury trial the judge ruled correctly, this being a probate matter which must be decided without the intervention of a jury. Code of Practice Article 1036; Cafiero v. Cafiero, 154 La. 1076, 98 So. 672.
On the merits of the case respecting the issue of fact of whether or not the disputed document is in the handwriting of the decedent the district court reasoned and concluded as follows:
“Don Fellows, one of the beneficiaries named in the purported will, also named as defendant in this suit but who filed no answer thereto, testified at the trial of the case that he lived with the decedent, his uncle, since he was a small boy; that he had worked for his said uncle, R. D. Fellows, since he was old enough to ride a bicycle; that he started working for his uncle as a delivery boy at the Central Drug Store, and [414]*414that he was later employed in the drug store as a soda dispenser and clerk; that upon graduating from high school, he had gone to college with the assistance of the deceased and had received his degree in pharmacy; that from the time of receiving his degree in pharmacy until the outbreak of World War II, he again worked at the Central Drug Store, for his uncle, R. D. Fellows; that he spent several years in the United States Army, was honorably discharged with the rank of an officer, and that after his discharge he resumed his position at the same drug store where he has been employed to the present time.
“The appraised value of the property mentioned in the purported will is approximately $56,000.00 and this witness, Don Fellows, was under the impression that, if the will was held valid, he would benefit by the will to the extent of approximately $28,000.00; but, notwithstanding this, he testified that, in his opinion, the purported will was neither written nor signed by his uncle, R. D. Fellows. This witness also testified that, having lived with decedent and worked for him since childhood, he had many occasions to observe the handwriting and signature of his uncle, the deceased, and that he was familiar with his handwriting and signature until the date of his death.
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HAMITER, Justice.
In contest here is a document purporting to be the olographic last will and testament of Rolland D. Fellows who died in the Parish of Tangipahoa on November 4, 1948.
Decedent was survived by his widow, Mrs. Gladys DeSouge Fellows, but by neither ascendants nor descendants. His estate consisted entirely of an undivided one-half interest in property, acquired by the community previously existing between him and his said wife, which had an appraised value of $178,991.13.
[410]*410On November 10, 1948, the widow presented to the district court a petition praying for the appointment of a notary public to determine whether decedent had left a last will and testament. The notary was appointed (on the same day), and he was authorized and instructed to search for a will among the effects of decedent, particularly in any bank box standing in the latter’s name or in that of the widow.
Five days later, or on November IS, 1948, Wilbur D. Fellows (decedent’s brother) filed a petition alleging that the decedent, Holland D. Fellows, “has left a last will and testament made in the olographic form ■on the 3rd day of February in the year 1947, which petitioner files herewith in order that same may be admitted to probate.” He further alleged “that by the terms of the said last will and testament lie was made a legatee and his nephew Don Fellows was made a legatee.” On the same date, in accordance with the prayer of such petition, the instrument was probated and its execution ordered according to law.
The purported will written with a pencil, reads as follows:
“Hammond La, Feb. 3, 1947
■“This my last will and testament. I revoke all former wills. I bequeath to brother Wilbur D Fellows and my nephew Don Fellows the following property known as the Central Drug Store, Corner of Corner of Cypress & Thomas to Ben Machitta property with Wilbur Fellows holding Controlling interest and management. Stock and fixtures and 5 000 00 running Expenses
“R D Fellows”
On November 16, 1948, the day following the probate, decedent’s widow filed in the succession proceedings a petition in which she alleged that she was given no notice, as required by law, of the intention to probate the purported will and that, therefore, she did not have an opportunity to provide opposition to it when presented. She further alleged that she opposes the instrument’s probate, registration and execution on the ground that it is not a valid and genuine will, the handwriting therein not being that of the decedent. She prayed for judgment decreeing the will to he null and void.
On January 17, 1949, after the preparation of an inventory and appraisement of decedent’s property and the appointment of an administratrix, Mrs. Gladys DeSouge Fellows (the widow) instituted the instant action against Wilbur D. Fellows and Don Fellows, in the petition of which she prayed that the purported will, together with its probate, be annulled and that she be recognized as the sole heir of decedent entitled, as such, to the possession of all property left by him. Alternatively, in the event the instrument -be declared valid, she prayed that she be recognized as the owner of an undivided one-half interest in the community property sought to be donated by the will.
In support of her principal demand herein plaintiff alleged, among other things, that [412]*412(1) the purported will was written, dated and signed by someone other than decedent and, therefore, is a forgery and a fraud, and (2) that it is further null and void because of the uncertainty of the provisions thereof.
Don Fellows, decedent’s nephew and a legatee under the purported will, filed no answer and otherwise made no defense to the action. Instead, he appeared as a witness for plaintiff during the trial, as hereinafter shown, testifying that the will was not in the handwriting of the decedent. Against Don Fellows a preliminary default was entered.
Wilbur D. Fellows (the other legatee and defendant) answered, denying plaintiff’s charges of forgery and uncertainty and averring affirmatively that the will was entirely written, dated and signed by the decedent. He prayed for a trial by jury and, thereafter, for judgment rejecting the demands of plaintiff at her costs.
The district judge refused the request for a jury and ordered the case tried before himself.
After a lengthy trial, resulting in the building of a voluminous record, there was judgment against the defendants, Wilbur D. Fellows and Don Fellows, decreeing the contested will to be null, void and of no effect and recognizing' the plaintiff; Mrs Gladys DeSouge Fellows, to be the sole heir of decedent.and entitled, as such, to all of the property left by him. The judge concluded, as is shown by his assigned written) reasons, that the will was null because it was not only a forgery in its entirety but also its provisions are incapable of enforcement, they not being susceptible of any reasonable interpretation.
From the judgment only defendant Wilbur D. Fellows is appealing.
In their brief filed here counsel for appellant complain first of the district court’s refusal to order, as requested, a trial by jury; however, orally they not only did not make that complaint but rather intimated that it had been abandoned. Nevertheless, we are of the opinion that in refusing the jury trial the judge ruled correctly, this being a probate matter which must be decided without the intervention of a jury. Code of Practice Article 1036; Cafiero v. Cafiero, 154 La. 1076, 98 So. 672.
On the merits of the case respecting the issue of fact of whether or not the disputed document is in the handwriting of the decedent the district court reasoned and concluded as follows:
“Don Fellows, one of the beneficiaries named in the purported will, also named as defendant in this suit but who filed no answer thereto, testified at the trial of the case that he lived with the decedent, his uncle, since he was a small boy; that he had worked for his said uncle, R. D. Fellows, since he was old enough to ride a bicycle; that he started working for his uncle as a delivery boy at the Central Drug Store, and [414]*414that he was later employed in the drug store as a soda dispenser and clerk; that upon graduating from high school, he had gone to college with the assistance of the deceased and had received his degree in pharmacy; that from the time of receiving his degree in pharmacy until the outbreak of World War II, he again worked at the Central Drug Store, for his uncle, R. D. Fellows; that he spent several years in the United States Army, was honorably discharged with the rank of an officer, and that after his discharge he resumed his position at the same drug store where he has been employed to the present time.
“The appraised value of the property mentioned in the purported will is approximately $56,000.00 and this witness, Don Fellows, was under the impression that, if the will was held valid, he would benefit by the will to the extent of approximately $28,000.00; but, notwithstanding this, he testified that, in his opinion, the purported will was neither written nor signed by his uncle, R. D. Fellows. This witness also testified that, having lived with decedent and worked for him since childhood, he had many occasions to observe the handwriting and signature of his uncle, the deceased, and that he was familiar with his handwriting and signature until the date of his death. This witness, by his conduct and demeanor while on the witness stand, impressed the Court as being perfectly fair, honest and impartial.
“It was brought out during the trial of this case that the decedent at one time during his lifetime had made a will, which was typewritten and signed by the testator in the presence of witnesses and in which will the bequest amounted to practically the same as the bequest of the will in question, but that the deceased, having had a misunderstanding with the wife of Wilbur D. Fellows, and for other reasons, had destroyed the typewritten will.
“There were also several witnesses for the defendant who stated that decedent, at various times during his lifetime, had made statements that he expected to leave the drug store to Wilbur Fellows and Don Fellows. The Court believes that the decedent made such statements and had decided to carry them out by the execution of the typewritten will which he later destroyed. The Court does not remember any witness testifying that R. D. Fellows made any statement after the time he destroyed the typewritten will that he would leave the drug store to Wilbur and Don Fellows. Therefore, the Court is of the opinion that at different times the deceased mentioned the fact that he expected to take care of Don Fellows and Wilbur Fellows’, and attempted to do. so in the typewritten will, but the Court is also of the opinion that after the decedent destroyed the typewritten will he had no further intention of leaving the property to these two defendants.
[416]*416“It is hard to believe that a defendant who stood to benefit to the extent of approximately $28,000.00 would testify that, in his opinion, the will was a forgery unless it was actually his opinion. The testimony of Don Fellows, of course, was attacked by counsel for the other defendant, Wilbur D. Fellows, and he was subjected to severe cross examination in which counsel for Wilbur Fellows attempted to show collusion between this witness and the plaintiff. This attempt, in this Court’s opinion, was a dismal failure. I do not believe that Don Fellows was ever approached by the plaintiff or promised any reward for giving his testimony. It is true he stated that he was interested in the outcome of the case, but the Court believes he was confused by what counsel meant by an interest in the outcome of the case. This Court believes he meant to express the fact that he, like any other, was interested to know how the Court would decide the case. He would certainly have had more interest in the outcome of the case in obtaining for himself $28,000.00, but I believe he was correct and honest in his conviction that the purported will was not written or signed by the testator.
“The other defendant, Wilbur D. Fellows, testified that the purported will was genuine, giving as his reason for his testimony that he had seen the deceased actually write and sign the said purported will. The circumstances surrounding the writing of the' will, according to this witness, were as follows: On the date the will was written, the decedent had passed by his place of business and instructed this witness to bring the 'books or the big book from the drug store and go out to- decedent’s farm which is located about two miles east of Hammond ; that the deceased then drove to the farm himself; and that he, this witness, got, into his own car and also drove to the farm. Upon arrival he found his brother, R. D. Fellows, sitting in his automobile waiting for him; that this witness took the big book and got into the back seat of the car where R. D. Fellows was sitting; that he discussed some business matters with decedent, and after some discussion decedent took a sheet of paper and a pencil and wrote the purported will and gave it to the witness with instructions not to tell their wives anything about the will. This, witness did not, however, testify that he was instructed not to mention the will to. Don Fellows, his co-beneficiary.
“This witness also testified that, after writing and signing the will, he tore off the end of the paper, reducing the size of the paper to its present dimensions. One can readily see that, at the top of the paper or at the beginning of the purported will, the lines are wider apart and gradually grow closer together toward the bottom of the paper. This leads one to believe that the paper was the same size before the will was. written as it is at the present.
“The decedent had a private office at the drug store where his books were-located and where he had for many years kept his. [418]*418books and documents, and it seems unusual that, on this particular occasion, he would request the book to- be taken to his farm when he could easily have examined the book in his own private office at the drug store. It is further unreasonable to believe that a man writing a will, especially in the wintertime, would be sitting outside in his automobile when he had so much more convenient facilities inside with chairs, table, gas heaters, etc.
“This defendant, Wilbur D. Fellows, also testified that he had always been close to his brother, the decedent — that they were ‘buddies’. This being true, it is also difficult to understand why, after his brother was dead and unable to defend himself, this -witness would publicly allege that his brother had withdrawn, or ‘knocked down’ as he termed it, twenty dollars per day from the proceeds of the drug store in order to deprive the Federal Government of income tax,-especially in view of the fact that such allegations and such testimony could have no possible bearing on the validity of the will in question.
sjc * J|{ ‡ *
“It is true that when this purported will was offered for probate the witnesses testified that they were familiar with the handwriting and signature of the deceased, and that, in their opinion, the will was entirely written, dated and signed by the testator; it is a well known fact, however, that, ordinarily, when wills are offered for probate, the witnesses just casually observe the handwriting and signatures, not claiming to be handwriting experts, and from such casual observation they testify that they believe the handwriting to be genuine, not realizing the possibility of an attack upon the will on the ground that the handwriting and signature are not genuine. The testimony of such witnesses should not be binding against the heirs who were not given opportunity to be present at the time the will was offered for probate.
“Several lay witnesses,' including the plaintiff and Don Fellows, testified that they had known the decedent for many years and that they were familiar with his handwriting and signature and that, in their opinion, this purported will was not in the handwriting of the deceased.
"There were three so-called expert witnesses -who testified in this case. The first was Mr. George J. Lacey who took the stand on behalf of the plaintiff, the widow of R. D. Fellows. Mr. Lacey qualified himself as an expert and testified at great length, in fact to such length and in such detail that the Court will not attempt to review it in detail. However, suffice it to say that this witness impressed the • Court as thoroughly knowing his business, and, in addition, he impressed the Court with his honesty and credibility. His testimony was clear, plain and well illustrated by exhibits. These exhibits consisted of enlarged photographs showing details of the known genuine handwriting of the deceased, and of the handwriting in the questioned [420]*420document. He testified frankly and honestly, giving good reasons for his conclusions. This can be easily verified by reading his testimony in connection with his exhibits.
“The next so-called expert was called on behalf of the defendant. He was an old gentleman by the name of Von Aaron, who testified that he was 82 years old; that he resided in Metairie, Louisiana; and that he originally became interested in handwriting as >a hobby. This witness did not impress the Court as being as well qualified to give an opinion on handwriting as the witness, Mr. Lacey. From the reading of his testimony, anyone can tell he was not as well qualified as an expert in this line as the witness Lacey.
“The other expert witness, also called on behalf of the defendant, was a Mr. Gullickson who answered questions to qualify himself as an expert and who testified at great length. His testimony, however, was more in the nature of a narrative on the general science of examining questioned documents, including handwriting, and particularly the handwriting constituting the will in question. A close observation of his testimony under cross examination will show contradictions to his testimony given on direct examination.
“In explaining the tremor in the handwriting of the questioned will, this witness, Mr. Gullickson, testified that, in his opinion, the tremor was caused by the shakes, or what is commonly termed ‘the morning after the night before,’ and that the tremor was due to the fact that the deceased was an alcoholic. However, there was undisputed testimony that the decedent at the time the purported will was dated was not drinking nor had he been for quite a while immediately preceding the date of the will. The physician of the decedent also testified that the decedent was in fairly good shape physically at the time the will was dated and that he suffered from no nervous disorder or alcoholism that would produce a tremor in his handwriting.
“It is the duty of the trial court to arrive at facts in all cases.
“The only way the Court has to arrive at the facts is by hearing the witnesses who take the stand, and in examining exhibits offered. The Court always tries to reconcile the testimony of all witnesses and arrive at the facts from the testimony as a whole. However, when witnesses testify diametrically opposite to .each other it is impossible to reconcile all the testimony to arrive at the true facts in the case. Considering the testimony as a whole in this case, and from observing the conduct and demeanor of all the witnesses while on the stand, the Court is of the opinion that the plaintiff has made out her case by a preponderance of the evidence.
“The Court also examined all of the exhibits, including all of the known genuine handwriting of the deceased, and compared it with the handwriting constituting the purported will and can find no similarity between the known genuine handwriting [422]*422of the deceased and the handwriting of the questioned document.
“Considering these facts and after comparing the will with the other handwriting, and after considering all of the testimony and exhibits in this case, the Court can arrive at but one conclusion, and that is that the plaintiff has carried the burden of proof by a preponderance of evidence and that judgement should be rendered in favor of the plaintiff, Mrs. Gladys DeSouge Fellows, decreeing the purported last will and testament to be null and void, for the reasons hereinabove expressed.”
The foregoing analysis of the ev- • idence appears to us, after our careful study of the record, to be substantially thorough and accurate. Moreover, we are unable to hold that the judge committed manifest error in resolving the considered issue of fact in favor of plaintiff.
Significantly supporting the judge’s announced conclusion is the undeniable fact that there exist numerous material dissimilarities in writing characteristics between decedent’s known handwriting (various documents admittedly written or signed ¡by him) and the handwriting of the questioned will. These dissimilarities were not only apparent to the experts for both plaintiff and defendant, as they so testified; but also they are even noticable to the naked eye of the layman. In fact, it was primarily on the basis of such discrepancies that the experts formed their respective conflicting opinions. Thus, the one appearing for plaintiff testified: “* ■ * * Now,
handwriting is identified just the same as a horse, cow or dog is identified, merely by a sufficient number and combination of similarities upon which to base a reasonable and logical conclusion, and when there is found such a great number of dissimilarities as are found in this particular case that cannot be reasonably explained, and in my opinion they cannot be reasonably explained' in this case, there can be but one conclusion and that conclusion being that the two writings were written by different people.” In reaching a contrary view the principal expert for appellant theorized: “A fraudulent document is one that is prepared for the purpose of fooling everyone and the purpose is to make it as close to the genuine writing as possible.” Then he considered the numerous mentioned inconsistencies in the light of such theory and concluded that, because of them, the disputed document must be genuine.
But we entertain serious doubt that the theory thus employed by appellant’s expert is infallible, and can be applied in determining the validity of any questioned document; for it assumes that in the perpetration fflf a forgery the forger always has before him or is thoroughly familiar with the genuine 'handwriting of the person sought to be defrauded. There have been forgeries committed, undoubtedly and as appellant’s expert concedes, where the forger was without such knowledge or a pat[424]*424tern to follow, and where numerous handwriting'dissimilarities were evident.
Also furnishing support to the trial judge’s announced conclusion of fact is the important circumstance (among others) that Don Fellows emphatically repudiated the purported will as not having been written by the decedent, with the handwriting of whom he had been thoroughly familiar for many years. Named as a legatee in that document to receive a bequest of a substantial value, naturally he would have championed the maintenance thereof had he thought it genuine. True, as the district court points out, appellant’s counsel questioned the motives of Don Fellows with reference to the repudiation, they suggesting through cross examination that he had made a deal with plaintiff whereby she would leave to him through her last will and testament one-half of her estate. But such a deal is not proved. Also, it would seem unusual, unnatural and very unlikely for a normal person to relinquish an assured benefit (if decedent’s will were valid) for a highly uncertain and speculative benefit — • a bequest subject to revocation at the testator’s pleasure — even though the promised reward be of greater value.
Since we hold that no manifest error appears in the trial judge’s finding of fact that the purported will is not in the handwriting of the decedent, it is unnecessary for us to pass upon the legal question of whether such document is null by reason of its alleged uncertainty.
For the reasons assigned the judgment appealed from is affirmed.
FOURNET, C. J., dissents and assigns written reasons.
PONDER, J., recused.