25 La. Ann. 85 | La. | 1873
Lead Opinion
This is an appeal from a judgment of the Second District Court of the parish of Orleans, which revoked and declared invalid the will probated in 1856, as the will of Daniel Clark of 1813.
They allege that the probate of the pretended will of 1813 was a gross fraud upon the rights of petitioners, that the will never existed, that the evidence and testimony of the witnesses, upon whieh the will was probated was false or erroneous, illegal and insufficient. That if any will was made by the said Daniel Clark at any time other than the one admitted to probate and ordered to be executed by a decree of the Probate Court, dated on the seventeenth day of August, 1813, which is expressly denied, it was destroyed or suppressed by Daniel Clark himself. They allege that Clark left no will whatever posterior to that ■dated May 20, 1811, which was probated in the Probate Court of the parish of Orleans on the seventeenth of August, 1813, by which Mary Ulark, the mother of Daniel Clark, was instituted his universal legatee, .and which probate and will remained in force, ior nearly half a century, .as the basis of title to the property of the succession of Daniel Clark.
The petition then represents that Daniel Clark was never married; that he had no legitimate child; that he never recognized Myra as his legitimate child; that he made ample provisions for her as his illegitimate child by secret trusts, which trusts were duly executed by -those confided with the property intended for her; and that Clark did mot make and could not have made a will in favor of Myra, on account -of her status, as the law of Louisiana forbade it.
The judge a quo maintained the exception so far as to require the. plaintiffs to amend their petition in that part charging “fraud, error, illegality and insufficiency in the evidence,” etc., and he overruled the*
On the eleventh of February, 1871, in obedience to the order of the court, the petitioners filed their supplemental petition, setting forth, specifically the grounds for their allegations of fraud and error, and designating particularly the alleged illegality and insufficiency of the evidence on which the will was probated, etc.
On the twenty-ninth of April, 1871, she filed her answer. It admits the probate of the will of 1813, but denies that the evidence and testimony upon which the will was admitted to probate was false, erroneous, illegal or insufficient. She denies, that the plaintiffs or intervenors or any of them allege any right of action to contest the validity of the order of probate, or to seek the revocation of the will of Clark of the thirteenth July, 1813, and she avers that that decree has acquired the force of res judicata. She further pleads the prescription-of one, three, five and ten years.
On the third of June following, she filed the plea of res judicata as to all the parties, on the question of her status.
This record, consisting of 575 pages in manuscript and portions of six printed volumes, furnishes proof of the patience and care with which this case has been tried. During the course of the trial, upwards of thirty bills of exceptions were signed. The elaborate arguments, oral and by briefs of counsel, exhibit great labor, research and ability; and they have greatly lessened the labors of this court.
In this court the counsel for the defendant have filed an assignment of errors, which groups together the questions, which they deem important in this case. They are substantially as follows :
I. That the Second District Court was without jurisdiction to try the cause, after the defendant had made her application to have the cause transferred to the Circuit Court of the United States.
II. That said Court was without jurisdiction on account of the subject matter of the suit.
III. That the plaintiffs and intervenors allege no interest in the estate of Daniel Clark, which could authorize them to institute a suit to revoke the last will of Daniel Clark.
IY. That said court erred in denying the authority of the thing adjudged to the decrees of the Supreme Court and Circuit Court of the-United States as set forth in defendant's several pleas of res judicata..
Y. That said court erred in receiving and rejecting evidence as shown by the several bills of exceptions.
YI. That said court erred in overruling defendant’s pleas of prescription.
We will take up these questions in their order.
Mrst — We are of opinion the judge a quo properly refused to transfer the cause to the Circuit Court of the United States, because that court has not jurisdiction to try the principal if not the only objects of this suit, the legality and sufficiency of the evidence upon which the lost will was admitted to probate, and the revocation of the will. That the United States Courts are without jurisdiction in probate .matters is too well settled to be now questioned. 9 Peters 174, Tarver v. Tarver; 2 Ilarv. 619; Gaines v. Relf & Chew, and 6 Wal. 642, Gaines v. New Orleans.
And it seems equally well settled that “it was not intended to extend the jurisdiction of the United States Courts over causes brought before them on removal beyond the limits prescribed by their original jurisdiction.” Conklin 155; 2 Sumners 338.
Seeoncir — 1The subject matter of this suit is purely probate in its character, to wit, the revocation of the probate of a will; and the suit was properly brought, under the circumstances of this case, in the Probate Court, which had made the order to record and execute the will. 13 An. 138,177; 1 La. 19, McCombs v. Dunbar, et al; 8 N. S. 520, Harty v. Harty; 5 La. 394; 5 Rob. 286; 1 An. 171; 17 La. 4.
Third — The plaintiffs and intervenors substantially allege that they have been sued, by Mrs. Gaines, for property, which she alleges belonged to the succession of Daniel Clark, and of which they are in possession; that she claims the same under the will of Clark, dated .thirteenth July, 1813; that Clark left no other testament than that dated twentieth May, 1811, by which Mary Clark, his mother, was instituted heir, and that that will has been the basis of title to the prop.erty of his succession for nearly half a century. And the bill in equity ■of the said Myra C. Gaines against these parties alleges that they (the plaintiffs in this suit) sometimes “pretend that one Richard Relf and one Beverley Chew sold said property to the defendants as testamentary executors of a will of said Daniel Clark, made- in the year 1811, which had been admitted to probate in the Probate Court for the parish'and city of New Orleans, and as attorneys in fact for due Mary Clark, the devisee in said will of 1811 named,” etc. And in the letter of Mrs. Gaines to the Mayor of New Orleans, dated sixth September, .1870, claiming from the city $4,996,039 32 cents, and proposing to compromise for $4,000,000, she gives a history, or the chain, of title back to the estate of Clark. These admissions show that they are in possession under titles derived from Relf & Chew either as executors of .the will of Clark or as the attorneys in fact of Mary Clark, the forced .heir, and universal legatee under the will of 1811, of Daniel Clark.
And as they can not attack the probate of the will in the Circuit Court of the United States, where the petitory action against them has been brought, they should be permitted, ex necessitate rei, to bring this suit in the probate court, in which the order for probate was granted j -otherwise, if would be possible for a will to be fraudulently probated, and then to sue persons in possession under titles from the heirs, in the Circuit Courts of the United States, without the possibility on the part of the possessors to expose the fraud. See 13 An. Í38 ; 177; 5 La. 394. Lewis’ Heirs v. His Executors, 17 La. 4 ; Roberts v. Allier’s Agent.
JPov/rfh, — It is urged that the court a qua erred in not holding that the order, probating the will of thirteenth July, 1813, is res judicata.
It would seem from the decisions of this court, reported in the thirteenth volume of the Annuals, pages 139 and 178, that this question was definitely settled.
In the case of the heirs of Mary Clark v. Myra C. Gaines, the court said: “The decree of the Supreme Court, which it is the object of this suit to annul, is one which, upon its face invited contestation ; for it reserves by its terms the right to attack the will probated, not only to all persons who were not parties to the proceedings for the probate of the will, but even to one who was a party to those proceedings.” * * * “To refuse, thereiore, to the plaintiffs the right of action
to set aside the probate of this will, would be, in fact, to deny them the remedy which, the very decree of probate purported to secure to them. It is not in this court such an agreement should meet with favor. Our decree in the case of the succession of Clark, 11 An., meant what it expressed. Our reservation of the rights of all parties in interest was substantial, not illusory.”
And in the case of De la Croix v. Gaines, the court said: “ By referring to the case of Clark’s succession in 11 An. it will be seen that we carefully guarded against any inference being drawn that the -decree should not be open to attack. We even asserted that it would be open to attack by a direct action in the name of a party interested. .And if, as alleged (and we must at this stage of the case take the allegation for the truth), the defendant is seeking to avail herself in -the courts of the United States of a rule there recognized, that an ex parte decree probating a will, although open to question collaterally, in all the courts of the State where it was rendered, is not to be so questioned in a United States court, but it is to be conclusive upon all the world, there is a manifest propriety in giving the relief, which was reserved by the very terms of our former opinion and decree to third persons, whose interest might be sought to be affected by it.”
“A will” says Jarman, “is proved in common form where the executor presents it before the judge, and in the absence of and without, citing the parties interested, produces witnesses to prove the same.. Upon the testimony of these witnesses that the will exhibited is the-true, whole and last will and testament of the deceased, and sometimes upon less proof and even upon the oath of the executor alone,, the judge grants probate thereof. This mode of proof, though not in-very common use, is still adopted and practiced upon in some of the-United States. * * * But it is not conclusive upon heirs ordistributees and may be opened and set aside, if necessary, and applied, for in time. At common law, when a will had been proved only in common form, without notice to those interested, the probate might-be re-examined within thirty years after probate.”
We have seen that the judges who rendered the decision probating, the will of 1813 did not themselves consider it binding on any one; that it was a mere license to Myra Clark Gaines to sue. Without a probate of the will she could not have gone into another court to sue for property as the instituted heir of Clark; with the probate she could sue and claim property under the will, but those to whom she opposed this will could deny that such a will existed when Clark died; that the probate was made on legal or sufficient evidence, and that the will was valid under the laws of Louisiana; and the onus of proving these facts would devolve upon the party who asserted the validity of the will. Marcadé, vol. 4, p. 12; 13 An. 86. It appears from the opinion in the case of De la Croix v. Gaines, 13 An., as well as from the probate record in evidence in this suit, that there were parties who came forwaid to contest the existence and the validity of the will of.
If this ruling was correct then, how can it be pretended that the probate proceedings are binding on them now? Is it possible that a system of jurisprudence exists anywhere, which would allow a claim.ant to obtain an ex parte judgment, which would have the effect of destroying the titles of persons who never had notice of the claim— nay, of persons who were refused the right to contest the claim in the very proceedings wherein the ex ya/rte order was made ?
Wethink not; certainly it does not exist in Louisiana; and the judge <x quo correctly overruled the first plea of res judicata.
It is next contended that the plea of res judicata against the city of New Orleans should have been maintained. The thing demanded in the former suit is not the same as that claimed in this action. ‘ ‘ The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.” C. C. art. 2286. We deem it unnecessary to pass upon the other plea of res judicata, based upon the supposition that the Supreme Court of the United States has decided and fixed the status of Myra C. Gaines in Gaines v. Henuen, etc. If it be true that the Supreme Court of the United Stales have decided the question relative to her status, independently of the will of 1813, that august tribunal will no doubt adhere to that opinion. But we do not consider that question properly involved in this suit.
Fifth — It is not necessary to pass upon most of the bills of exceptions taken in this case, as they relate to evidence affecting the status of the defendant — which we do not consider necessary to decide, in ■consequence of the conclusion arrived at on other questions involved in this controversy.
We will remark, in the next place, that the objection of irrelevancy, urged to so much of the evidence offered, is a very weak objection, when the case is tried without the intervention of a jury. In such a case the only question, in effect, is upon the sufficiency or weight of the evidence. If any evidence be found in the record which we consider not relevant we will ignore it. 1 Greenl. 53.
There was no error in ruling the defendant to go to trial, without waiting for the intervenor, Elmore. The intervenor seems to have ■consented to let the trial proceed without him — at any rate he has not objected.
In regard to the bills of exception taken by the defendant to the-rulings of the court striking out portions of the testimony of Boisfontaine and others, on the ground that the testimony was hearsay, we concur with the judge a quo.
A bill of exceptions was taken to the ruling of the judge admitting-a letter written by Mazureaux to Coxe in May, 1842. The grounds-stated in the bill of exceptions are, that, Mazureaux was alive during the pendency “of the litigation in the United States Court, and after-issue joined in that suit, so that his direct testimony could have been taken.” '“He was counsel of record opposed to Myra Clark Gaines in the United States Court.” “The status of Mrs. Gaines can not be inquired into in this case.” “ The letter contains (besides the facts-stated) expressions of opinions which are not evidence.”
We have already said we will not pass upon the question relating to the status of the defendant, further than it may be affected by our judgment in regard to the will of J 813. In so far as that letter contains opinions of the witness, it is not competent evidence. But we agree with the district judge that the other objections are not reasons for rejecting the evidence, even if we overlook the vagueness of the objections. But the counsel for the defendant have urged in their briefs and oral arguments other objections to the evidence. It is well settled that objections not stated in a bill of exceptions will not be-considered by this court. We could as well be required to reject evidence which had been received without objection in the court of the-first instance. A bill of exceptions was taken to the reception in-evidence of the answers of Richard Relf to the bill in chancery in the case of Gaines and Husband v. Relf, Chew et als, died in January, 1845, on the grounds following:
In order to act intelligently in receiving or rejecting this evidence, it will be necessary to bear in mind some of the facts disclosed by the voluminous records, containing- the history of the remarkable litigation relative to the will, which forms the subject of this suit. In June, 1834, Myra Clark Whitney (now Gaines) instituted proceedings to revoke the testament of Daniel Clark, dated twentieth May, 1811; and to probate his alleged lost will of thirteenth July, 1813. The plaintiff in that proceeding took the testimony of Mr. and Mrs. Harper, S. B. Davis, Bellecbasse, De la Croix, Boisfontaine and others by commission, and in 1836 when the heirs of Mary Clark, the universal legatee under the will of 1811, and the mother of Daniel Clark, and Relf & Chew, the executors of that will, insisted upon proceeding with the trial, submitted to a nonsuit rather than try the case.
In 1845 Mrs. Gaines instituted a suit against Relf & Chew, and others for the property of the succession of Clark, claiming as the-legitimate heir and as the instituted heir under the lost will of Daniel’ Clark. A demurrer was filed to the bill in equity, and subsequently an answer was filed by the said Relf & Chew. The case was brought before the Supreme Court of the United States on the demurrer by a division of the judges on certain points, which were certified under the act of Congress. The opinions of the judges were opposed on the-following points:
1. Is the bill multifarious? and have the complainants a right to-sue defendants jointly in this easel
2. Can the court entertain jurisdiction of this case, without probate of the will set up by the complainants, and which they charge to have been destroyed or suppressed 9
3. Has the court jurisdiction of this case, or does it belong exclusively to a court of law 9
The court said “ the demurrer is not before the court, but the points certified. In considering these points all the facts stated in the bill are admitted.”
This suit was finally decided against Myra Clarke Gaines in 1852. 12 How. 539. On the eighteenth of January, 1855, Mrs. Gaines filed in the Second District Court of the parish of Orleans, her petition praying for the probate and execution of the will of 1813. The city of New Orleans, P. D. De la Croix and Richard Relf filed interventions, and prayed to be allowed to contest the probate of the will. Mrs. Gaines excepted to their intervention, on the ground “ that a probate of a will is a proceeding to be had ex parte, a mere preliminary step in the administration of an estate not binding on third parties, and open to contestation in any proceeding based upon its validity, in which it is relied upon as the basis of title, or of any right asserted as against third parties; and on the further ground, that the intervening parties are without interest in the subject matter before the ■court, and therefore can not be permitted to embarrass the proceedings.” And the interventions were dismissed. Now the evidence objected to is the answers of Richard Relf to the bill in equity filed by Myia Clark Gaines, to obtain which the Supreme Court of the United ■States said it would maintain the jurisdiction of the Circuit Court,
The same author says: “And though the two trials were not between the same parties, yet, if the second trial is between those wlio represent the parties to the first, by privity in blood, in law, or in estate, the evidence is admissible. And if, iu a dispute respecting lands, any fact comes directly in issue, the testimony given to that fact is admissible to prove the same point or fact in another action between the same parties or their privies, though the last suit be for other lands.” 1 Greenl. § 164. 7 Rob. 440.
Relf had died before the institution of this suit. If he had been living he would have beeu a competent witness in the case. But his sworn declarations in answer to charges propounded against him by the said Myra C. Gaines, are in existence, in that suit. The Supreme Court said his auswers might be used as evidence to probate the will of 1813; andlthe said Gaines has had full power and opportunity to question an'dfcross-question him. It is difficult, therefore, to see any substantial reason, why the evidence can not be used, by those who have an interest to prove no such will existed at the death of Clark.
Over foity years after the death of Clark, long after his contemporaries had passed off the stage of life, the plaintiffs are obliged to attack the will set up by defendant as the muuiment of her title to lands in their possession under titles derived from his succession. We areot opinion that the answers should have been received.
Sixth — The plea of prescription vras properly overruled.
The prescription, upon which counsel in their briefs appear lo rely, is-that of one and five years, and they cite articles 1994 and 3542 Ray’s C. C. and article 613 Code of Practice. This article of the code of practice clearly refers to a judgment in a contested suit, but which has been obtained through fraud, or because the defendant had lost the receipt given him. by the plaintiff. Article 1994 of the Civil Code applies to acts made in fraud of creditors. Article 3542 refers to actions for the nullity of testaments, when the. instituted lieir is in possession of property under the will, and is sued by the heirs at law to annul the will,, and take from the instituted heir the property. It does uot apply to a case of this kind, in which a defendant in a suit in chancery is obliged, to come to the Probate Court to establish a part of his defense in consequence of the limited jurisdiction ot the Circuit Court oi the United States.
The maxim “ Quce temporalia sunt ad agendum, perpetua sunt ad ex-cipiendum” is applicable to this case. If the petitory action, instituted in the Circuit Court, had been filed in one of the district courts of this State, no one would pretend that the defendants could not attack the will and ask for judgment annulling it. She cannot deprive them of that right by suing in the Circuit Court. Their rights can be barred only by the laws of Louisiana, where they reside, and where their property i” controversy is situated, which are obligatory on the Fed
Seventh — The last assignment of errors presents the questions involved on the merits of this cause; those we deem important are the following. Did Daniel Clark leave a testament dated on the thirteenth July, 1813? Are the contents of that will proved by two credible witnesses, who read, or had had read to them, the will?
In proving a lost olographic will, with a view to its probate and execution, is it necessary to prove all the essentials of an olographic will? Or, is a paper, containing testamentary dispositions, wholly wiitten and signed by the testator, but dated in July, 1813, without specifying any day, an olographic will? Is it dated?
Can an olographic will be proved, except by those who have a knowledge of the handwriting of the testator, from having often seen him write, and sign his name? And must that knowledge and the source of that knowledge be stated by the witness ?
In deciding these questions we would have less difficulty if this court had not, in an ex parte proceeding, passed upon several of them.
Daniel Clark died in the city of New Orleans on the sixteenth day of August, 1813. The proc&s verbal ot the magistrate who affixed the seals upon the effects declares: “ This day, the sixteenth of the month of August, 1813, and the thirty-eighth of American iudep. ndence, we, Gallien Preval, one of the justices of the peace for the city and parish of Orleans, were present at the decease of Daniel Clark, this day, at six o’clock in the afternoon, and we were requested by Richard Relf to affix the seals on all the papers belonging to the estate of the said Daniel Clark, for the accomplishment of which, we in the presence of James Pitot and Dussuau de la Croix, the said Richard Relf, having been requested by us to show us the papers of said estate, and having’ conducted us to the room of said deceased, proceeded, in the presence of the witnesses above named, to remove all the said papers and to place them in a desk and armoir, which we found in the room of deceased, after which we affixed the seals on the doors of the room, and placed Mr. Francisco Morales as guardian of the said room, who promised, under oath, to fulfill well and faithfully the duties of his charge, and has, together with us and the witnesses named, signed the same on the day, month and year above mentioned.
his
“FRANCISCO M MORALES, mark.
“At the moment of the closing the ■proees verbal, the said Richard Relf having found in a trunk of the deceased the olographic will, we removed it in presence of the witnesses above named for the purpose of delivering it to the honorable judge of the Court of Probates.
“(Signed)
“JAMES PITOT.
“DUSSUAU DE LA CROIX.
“RICHARD RELF.
“GALLIEN PREVAL,
“ Justice of the Peace.”
Thus it appears that James Pitot, the parish judge, de la Croix, Relf and Francisco Morales, and the justice of the peace, Gallien Preval, were present immediately after the death of Clark — nay at his death — and that the justice of the peace affixed the seals on the effects of the succession according to law.
On the seventeenth day of August, 1813, tire olographic will of Clark, dated twentieth of May, 1811, was probated by James Pitot, the parish judge.
The notaries were summoned and they certified that they had no will or codicil of the said Clark. It is not pretended that any body ever saw the alleged last will after the death ot Clark. And Boisfontaine alone testifies that Clark spoke of the will in his last illness. Boisfontaiue states that Clark spoke to him of his last will repeatedly during his last illness, and he said “his will must be taken care of on her (Myra’s) account.” Again, “he told Lubin, his confidential servant, to be sure, as soon as he died, to ca ry his little black case to Chevalier de la Croix.” Is it probable that Clark ever made such statements to this witness? If he lelt any uneasiness or doubt about the safety of his will, would he not have had it deposited where it could not have been tampered with. It is proved that the parish judge, Pitot, was named as one of the executors of this will, and that he lived near by Clark. How easily he might have relieved his mind of anxiety about the safety of the will. Is it probable that he could have directed his slave to take his black case and carry it to De la Croix, after his death? He knew that the slave would not have been permitted to take away anything of value from the house after his death. And if he had desired De la Croix to have the will, he would have sent it by his slave during his life.
Again he says, “ when, after the death of Clark, the disappearance of his last testament was the subject of conversation, I related what Clark had told me about his will, in his last illness. Judge Pitot and John Lynd told me that they read it not many days before Mr. Clark’s last sickness; that its contents corresponded with what Clark had told me about it,” etc.
It appears from his testimony and that of Harriet Harper and Bellechasse, that Pitot was one of the executors named in the will, and that in the will was a legacy of five thousand dollars in favor of Judge Pitot’s son.
Is it not most wonderful that Judge Pitot who was thus interested, and who believed, according to this witness, that a will had been left by Clark other than the one dated the twentieth of May, 1811, should have probated the said will of 1811 immediately after Clark’s death,
What amount of reliance is to be placed in the testimony of a witness, who is uncontradicted, who undertakes to give the details of conversations, in themselves not probable, which occurred over twenty years before, it is very difficult to determine. This witness, however, speaks of the conversations which occurred during the last sickness of Clark, and after his death, with a positiveuess and certainty that few persons would, in regard to conversations, after the lapse of only a few months. And to him alone did Clark speak of his will during his siclcness. The improbability of the facts detailed by him, and the great length of time which intervened between the period when he testified and the conversations which he details, incline us to attach but little credit to his testimony.
Another remarkable fact is, that although Bellechasse and De la Croix (who were named as executors in the lost will) were with Clark during his last illness, one of them on the day before his death, yet he never mentioned the subject to either of them. They were his cherished personal friends. Boisfontaine was his employe or overseer. De la Croix testified “that after the death of Clark witness was not much surprised that the last will of Clark was not produced or found, for it is to his knowledge that Clark had requested several other persons, as he had deponent, to become his executor.--,” etc. We may fairly infer from this testimony that after De la Croix had had the notaries cited to produce any will or codicil of Clark, deposited with them, and the said notaries had declared under oath that they had no will or codicil of Clark, he and the other friends of Clark adopted the legal presumption that he had destroyed it himself.
That other witnesses had seen a will posterior in date to that of 1811, and that Clark spoke to others about such a will is proved. But it was beforehis sickness that these witnesses saw the will, or that Clark told them of it.
It is not proved, nor has any attempt been made to prove, that Clark could not have destroyed the will, even after the conversations with Boisfontaine, if they occurred, in which he spoke to Boisfontaine about the will.
The presumption of the law in such a case is, that the testator destroyed it animo canoeilandi, and the onus of rebutting this presumption is cast upon those seeking to establish the will. 1 Redfield on the Law of Wills, 350; 10 Yerger 84; 11 Ala. 596; 6 Wend. 174; 41 Wend. 227; 3 Pick. 67.
There is not a particle of proof in the record to rebut this presumption.
The theory of the witness Bellechasse that Relf destroyed the will ■is not supported by any evidence. That Bellechasse himself could not have believed the stor.i at the time of the death of Clark and for •several years after is abundantly siiown, we think, Bom the confidence he himself reposed in Relf and from the friendly and confidential manner in which he corresponded with him during the year and later after the death of Clark. Either Bellechasse washimselí a villain and hypocrite, or he did not believe that Relf was the spoliator he represents him to have been in his testimony, given upwards of twenty years alter the occurrences concerning which he testified.
On the ninth of October, 1814, he wrote a letter to Relf, which commenced thus :
“ My friend, I have never forgotten yon, and your last mark of friendship shows me that the constancy of the misfortune that attaches to everything that relates to you, does not equal your own •constancy.'1 * * He concludes the letter thus: “Should you be persuaded that what I have written or said will compromit me, seek an interview with L — , and together engage my family to await me at Pensacola. Neither you, my friend, nor L— shall suffer from advances made for this purpose, as I am iu a position to be infinitely useful to you. * * * In the meantime receive my thanks, and believe in the ..gratitude of your sincere and devoted friend.”
In a letter of a subsequent date, he says, “You have yourself to blame, my dear friend, if I have not made a reconveyance of the property that our friend Clark sold to me. I have offered to do so on many occasions, and under some pretext you have always put it off, aud permitted me to go without speaking about it.” This was in relation to the property placed iu Bellechasse’s name for the benefit of Myra.
Continuing the letter, he says: “I have, therefore, considered it my duty to write to you, which I now do, and send you the accompanying ■document, iu order to prove that my declaratory act was made before I left Louisiana, and placed in the hands of Pedesclaux. I have preferred this, persuaded that you can do, at little expense, all that can be done; and iu order that he can not, in case of a requisition, do any evil, obtain an interview with him, recover from him the documents, for which you will give him your receipt, and all will be finished,” etc.
But be that as it may, there is no evidence whatever to establish the truth of the hypothesis, that Relf destroyed the testament. But a letter written by Beliechasse to Relf, in 1822, would seem to indicate more than a doubt as to whether even he believed that the will had been destroyed by Relf, for he saj s: “Je ne doute pas que si le testament de Clark ne s’était perdu, que Pon aurait vu que la partie de ces biens confiés au Chevalier de la Croix, était designee á M’lle Caroline, comme peut l’affirmer Mr. et Mde. Harper qui assurent que Clark leur en avait fait Paveu.” But if it be conceded that Beliechasse believed or suspected that Relf destroyed the will, surely the opinions or suspicions of a witness can not overcome the presumption raised that' the testator himself destroyed the will. 3 Phillimon 128. There are other facts in this ease which corroborate this presumption. One fact is that Clark left the will of 1811, which was found in his trunk, as stated in the proccs verbal before mentioned. Another is, that he left in force the secret trusts in favor of Myra. If she was his legitimate child, and he had made a will wherein he had acknowledged her to be such, and constituted her his universal legatee, why did he leave those trusts in her favor unrevoked, and why did he not destroy the former ■will? The record shows that Clark was an intelligent gentleman. He must have known that the property left for Myra, in the name of Bellechasse and De la Croix, would be subject to judicial mortgages and legal mortgages against those gentlemen, in spite of themselves. Why would he have unnecessarily subjected that property to such risks ?
The probability is that he would have destroyed the will of 1811 and the secret trusts aforesaid if he had intended to leave the alleged lost testament. Another fact, which corroborates the presumption of the law, is the absence of any motive on the part of Relf to-destroy the will of 1813. The will of 18! 1 was a sealed will, and until it was opened for the purpose of its probate, Relf could not know what its provisions were. On the whole, we are of the opinion that the-presumption that Clark himself destroyed the will has not been rebutted by the evidence offered to establish the will. And we have arrived at this conclusion without giving effect to the answers of Richard Relf or-to the letter of Mazureau. In the answers of Relf, however, it is emphatically denied that he ever destroyed, or that he ever saw the-will; and his answers repel the idea of the existence of such a will,, while the letter of Mazureau shows the motive or reason which may have influenced him in destroying the will.
Are the contents of the lost testament of Clark proved by two-credible witnesses, who had read, or had had read to. them, the lost will ?
The Chevalier de la Croix said: “ Deponent called to see Clark at his house on Bayou Road ; he there found him in his cabinet, and lie-had just scaled up apaclcet, the superscription on which was as follows :■ ‘ Pour étre ouvert en cas de mort.’ Clark threw it down in the presence of deponent, and told him that it contained his last will, and some other papers which would be of service; deponent did not see the will; does not know anything about its contents; he only saw the packet with the superscription as before related.”
Boisfontaine says : “ Deponent never saw the last will of Clark; he only saw the package when Clark showed it to Mr. De la Croix.”
Bellechasse saw the will, but he never read it. We infer this from his own testimony. He says, in his testimony given in December, 1834. “He (Clark) told the deponent, that he had completed or finished his last will, that the deponent, Judge Pitot, then present, and the Chevalier de la Croix were his executors named in it (the deponent having given his consent before), and that apart from some legacies for his friends, and a due pension for his mother, his said daughter, Myra, was the heiress of his fortune, duly habilitated for that purpose,, and gave the said will open to us to look at and examine. The deponent saw that it was all in his own handwriting and signed by him, the said Daniel Clark.” To cross-questions he answered, “That the-aforesaid last will of 1813 of said Daniel Clark was shown by him, of his own accord to deponent, and also Judge Pitot at the time mentioned in his answer in chief,” etc. And again, he answered, “that although he took neither note nor copy of said will of 1813, yet from’ the interesting nature of those details that he (Clark) had given of it, he had those details strongly impressed on his memory.”
In answer to another set of interrogatories filed in 1837, Bellechassesays: “A very short time before the sickness that ended in his death, he (Clark) conversed with us about his said daughter, Myra, in the-paternal and affectionate terms as theretofore; he told us he had completed and finished his last will. He (Clark) therefore took from a-small black case his said last will, and gave it open to me and Judge Pitot to look at and examine. It was wholly written in the handwriting of said Daniel Clark, and was dated and signed by the said Clark-in his own handwriting. Pitot, De la Croix aud myself were the executors named in it, and in .it the said Myra was declared to be his-legitimate daughter, and the heiress of all his estate.” In answer to a cross-interrogatory he answers : “ My knowledge of English is limited ;• but as I have three daughters, one son, and two sons in law, who understand it, and some of them perfectly well, when I require an English translation I avail myself of the services of some or more of my
■been able "to find the will, which lie had very certainly made before his departure for Natchez, some time before his death, telling me that I was one of his executors, as well as Messrs. Relf, De la Croix and Pitot.” And again, in the same letter he says: “She (Caroline) may have been mentioned in the will of which he spoke to me, and which disappeared God knows how.” This visit to Natchez must have occurred upwards of a year before Clark’s death, as will appear from his letter to Coxe, in which he speaks of challenging one Minor to fight a ■duel, and would correspond with the date, at which Mazureau says ■Clark talked with him about his will. It seems sufficiently proved that Bellechasse did not read the will, and this fact appears to be admitted by Mrs. Gaines in her bill in equity, filed in 1836.
“Your orator and oratrix further show unto this honorable court, and expressly charge, that the said will was wholly written and signed ■with the proper hand of the said Daniel Clark, and that the said will was shown by the said Clark to, and its contents read by the said ■Judge James Pitot, the late John Lynd, notary public in and for the .parish and city ol New Orleans, Mrs. Harriet Smith and others; and -that the said will was shown also, and its contents communicated by the said Daniel Clark to the said Colonel Bellechasse, Chevalier de la ■Croix, Mr. Pierre Baron Boisfontaiue and others.”
Mrs. Harriet Harper (or Smythe) swears she read the will. It is ■urged, however, that a woman can not be a witness to establish a lost will; and article 1584 of the Civil Code, which declares that “women ■are abolutely incapable of being witnesses to testaments,” is relied ■upon. That prohibition is to women attesting wills, as clearly appears from the French text of the article “sont absolument incapables d’etre •témoins dans les testaments.”
Mrs. Harriet Harper (or Smythe) is the only witness who read the ■will. Boisfontaine and Bellechasse, the other witnesses who speak of the contents of the will, derived their knowledge from the testator. We do not think this competent evidence to establish the contents of a lost will. It would practically authorize the making of verbal testaments, which is not recognized by our laws. Besides, if the declarations of the testator could be received to prove the contents and the verity of a lost olographic will, a lost testament could be proved by •evidence, which would be incompetent to prove the will if produced ■in court.
We are of opinion that it is necessary to prove that the lost will contained all the essentials of an olographic will before it can be admitted 'to probate, to wit: That it was wholly written, dated and signed by ■the testator; and the witnesses must state the facts, which are necessary to enable the court to determine whether or not the will is valid. JVIarcadó, vol. 4, p. 11.
In this case two witnesses, Harper and Bellechasse, state that the will was wholly written, dated and signed by Clark. Bellechasse states it ■was dated in 1813; Harper says it was dated in July, 1813. Is this .■sufficient'? Is a testament, which is dated A. D. 1813, or July A. D. ’1813, to be deemed dated in the sense of the law ¶ Certainly not, if •the term dated is to be understood in its “ common and usual signification.” C. C. art. 14, 1946.
Webster defines the word date thus: “ That addition to a writing ■which specifies the year, month and day when it was given or exer■cised.” Bouvier verbo date. Marcade says: “Dans l’usage, la date complete se constitue de l’indication du lieu, de l’année, du mois et du jour oir Tacte s’est lait; mais l’indication du lieu ne saurait étre exigée. En efifet, les dates, dans le sens propre de ce mot, ne sont que les indications des temps, non celles deslieux; les mots date, dater, dans la loi comme partout ailleurs, n’expriment que l’idée de temps, d’époque ; l’ordonnance de 1735, en exigeant pour les testaments olographes l’indi■cation des jours, mois et an, ne demandait nullement Tindication du lieu, et il parait evident que le Code a entendu la date comme l’enten,■dait cetto ordonuauce. Tout le monde est d’accord sur ce point.” Vol. 4, p. 7. Le principe nous parait étre que la date, qui est exigée par l’article 970, est celle du jour, du mois, et de l’année.” Demolombe, vol. 21, p. 77. Merlin verbo Testaments, vol. 13, p. 595; Serey Code Civil, art. 970, p. 427.
It is essential, therefore, to specify the day, month and year to give a date to a testament, in the sense of article 1588 of the Civil Code. It is insisted, however, that the said witnesses state “that the will was dated ” — that is true; but to hold that such a declaration in regard to a lost testament is sufficient would be to substitute the opinions or judgments of the witnesses for that of the court. If the will was dated, what was the date ? The witnesses fail to inform us, excépt as above stated. There is not a jot or tittle of evidence to prove the will
The witnesses do not state that they ever saw Clark write or sign his name — they do not even say that they were acquainted with- his handwriting. From the intimacy between Clark and Belleehasse it is probable that he was familiar with his hand-writing, but it is not probable that Mrs. Harper was so. There is nothing in the record to suggest that she ever saw any of his writing, except the will, which he gave her to read, and which she saw but once. But we are not permitted to imagine what their knowledge was, when the law requires proof to be made of the fact. Article 1655 of the Civil Code provides that “ the olographic testament shall be opened, if it be sealed; and it must be acknowledged and proved by the declaration of two credible persons, who must attest, that they recognize the testament as being entirely written, dated and signed in the testator’s hand-writing, as having often seen him write and sign during his life time.”
The tight to make a testament at all is derived from the law. The Legislature, which conferred the right, could undoubtedly impose such rules for the probate of wills as it deemed proper; and those rules or restrictions are obligatory upon courts. If we are at liberty to disregard one part of this article of 4he Code, we can disregard it entirely. And, instead of two witnesses, the court might be satisfied with one, or with no witness at all; substituting in lieu of witnesses, letters of the testator to enable the court to decide from a comparison of hand-writing; or, in case of the loss of the will, receiving the proved declarations of the deceased. That would be setting aside the provisions of article 1055 of the Code, and would certainly be legislation on the part of the court; and it is as certainly unauthorized, when-there exists positive legislation on the subject, upon which the court is required to act. That the provisions of article 1655 are obligatory upon the courts, was held in the following cases: 9 An. 149, Succession of Eubanks; 18 An. 444, Fox v. McDonogh’s succession; 23 An, 117, Sheppard will case.
But, if the court were permitted to infer that Harper and Bellechasse had seen Clark often write and sign, still the evidence would! fail to satisfy us that reliance could be placed in the testimony of Belleehasse. His letters written in 1814 and within a few years thereafter, can not be reconciled with his testimony given in 1834 and 1837., In his letter to Relf, dated twenty-third October, 1822, he writes :
“ Je ne puis done rien changer á ma déclaration, sans me parjurer te*109 •ouvrir la porte á un procos que M’lle Mira aurait droit de me faire; de plus, que puis-je vous dire dans un nouveau pouvoir? Surtout ne m’ayant pas renvoyé le premier: je ne puis avoir exactement présentes les expressions de Clark ; je pourrais m’en écarter involontairement, ce que je n’ai pu faire á l’ópoque de mou acte déclaratoire, oú elles se trouvaient encore gruvóes dans ma mémoire. Neamoins, et relativement a M’lle Caroline, je puis dire, et ruóme jurer, que Clark Clark avait une trop belle dine et le cceur trop bien placó pour avoir été capable, ayant deux enfans qu’il adorait, d’en avoir voulu favoriser une, en laissant l’autre exposée si mendier son pain et livrée aux vicissitudes qu’entraine la misére. Je ne doute pas que si le testament de Clark ne s’était perdu, que l’on aurait vu que la partie de ces biens eonfiós au Chevalier de la Croix était designee á M’lle Caroline, comme peut l’aflirmer Mr. et Mde. Harper, qui assure que Clark lenr en avait fait l’aveu,” etc.
From this letter it is apparent that he did not know the contents of the will, for he expresses the belief that the lost will contained provisions which would have shown that the property confided to De la •Croix by Clark was intended for Caroline. It shows also that Mrs. Harper had assure I him that Clark liad told her the same fact. If she had read the will why did she have to state what Clark had told her about it? The letter shows that even at that date he himself could not trust to his memory in regard to the details of a trust confided to him; yet, twelve years later he undertook to tell the details of the will of Clark. In this letter he says Clark had two children whom he adored, while in his testimony he swears that he “never heard said Daniel Clark speak of having any other child besides the said Myra.” Again, in his letter to Daniel W. Coxe, he writes that Relf was one of the executors named in the will of 1813, and in his testimony he says he was not. He swears that Clark had lost confi lence in Relf, while Boisfontaine, Cannon and others swear he had not, aud all the written •evidence in the record, bearing on the subject, goes to contradict him.
But it is not necessary to expose further the unreliability of his testimony ; nor to comment upon the testimony of Mrs. Harper in regard to the will, given nearly a quarter of a century after she had read the will. The laws of Louisiana does not allow a lost will to be established by the “ dim recollections, imaginations or inventions of anile gossips,” as, we trust, we have shown already. Here, as elsewhere, those propounding a lost testament must prove by competent evidence that the will was duly executed by the testator, and that it was in •existence at the time of his death.
We have arrived at the following conclusions :
That the evidence does not rebut the presumption of law, that the
That in establishing a lost will all the essentials of a will must be-proved; and in this case one of the essentials, to wit, a date, has not been proved.
That two creditable persons, who- have often seen the testator write- and sign, are necessary to prove an olographic will;: and the witnesses-in this case are not shown to have had any knowledge of the handwriting of the testator.
It is therefore ordered, adjudged and decreed that the judgment of the court a qua be affirmed with costs of appeal.
Dissenting Opinion
dissenting. I am unable to concur in the opinion of the-'majority of the court on several important points in this case, two of which, I think, are fatal to plaintiffs’ demand.
The action is one to revoke a will and recall the probate thereof as-null, and I can find no interest in the plaintiffs sufficient to authorize them to bring suit in the probate court. They do not allege themselves to be heirs of the testator or (in direct terms) to have derived title to property from his estate through a forced heir or other person,, and therefore they have no right of action. .
But, if they have such interest as will maintain the action of nullity of a testament, they must be held liable to the law of Louisiana fixing the prescription of such actions. Their allegation that they can not contest' the validity of the will in the Circuit Cburt of the United States, where they say they are sued by the defendant for certain lands, on account of the peculiar jurisdiction thereof',, can not, in my opinion,, change the rules of pleading, the relations of parties and the laws-relating thereto and governing the rights of litigants, so as to maintain them in the attitude of defendants, using as a shield what in-their suit they wield as a weapon of attack. If the defendant had a right to sue them in the United States Circuit Court, common justice would accord to them there all the defenses to-which they are justly and legally entitled. But if it be true that they can not show in that court-, as they allege, that the will or its probate is not valid as to them, it is their misfortune, for which the laws and the courts of Louisiana are not responsible, and we are not authorized, in my opinion, to bend the law to meet their case.
I think the action, if properly brought, is prescribed by five years under article 3542 (3507) of the Civil Code, and that the judgment of the lower court should be reversed and plaintiffs-’ suit be dismissed.
Rehearing refused.
Writ of error granted March 31, 1873, by Hon. Joseph Bradley,. Associate Justice Supreme Court of the United States.