Lead Opinion
delivered the opinion of the court.
This case is brought before the court from the eastern district of Louisiana, by a division of the judges on certain points, which are certified under the act of Congress.
The complainants in their bill state that Daniel Clark, late of the city of New Orleans, in the state, of Louisiana, in the year 1813 died, seised in fee-simplé, or otherwise well entitled to and lawfully possessed of, in the district aforesaid, a large estate, real and personal, consisting of plantations, slaves, debts due, and other property, all of which' is described in the bill.
That-the said Myra was the only legitimate child of the said Clark. That about the month of July, 1813, he made his last will and testament,..according- to law, and in which he devised to his daughter Myra all his estate; real and personal, except .certain bequests named. Col. Joseph Deville, Degoñti'ne Bellachasse, James Pitot, and Chevalier Dusuau de la Croix were appointed. executors of .the will, and the said. Chevalier, de la .Croix was also appointed tutor to the said Myra, who. was then about seven years .of age. • In. a few days after making the will the said Clark, died.
From her birth, .the said Myra was- placed, by her father, in' the family of Samuel B. Davis, who at the time resided in New Orleans, but in 1812 removed to Philadelphia, where the said Myra resided until her first marriage, being ignorant of her rights and her parentage.
In the year 1811, being about to make a journey to Philadelphia, and fearing some embarrassments from a partnership transaction, the said Clark conveyed property to the said Samuel B. Davis and others, to the amount'ofseyeral hundred thousand.dollars to be held in trust for'the use of the said Myra. And about the same time he' made a will devising to his .mother, then residing out of Louisiana, his property, and appointed Richard Relf and Beverley Chew, two of the defendants, his executors-.. That afterwards, on his return from Philadelphia, he received back a portion of the properly conveyed in trust as aforesaid; and by the will of 1813 revoked that, of 1811.
It is further charged that the said Relf- fraudulently set up the revoked will of 1811, and obtained probate of the same; that he-, with, the said Chew, being sworn as executors, fraudulently took possession of the real and personal estate of the deceased, and also his title papers and books. That they appropriated to their own use large sums of money and a large amount-of property of 'the estate, and in combination with the defendants named, who “had some knowledge, notice, information, belief or suspicion, or reason for belief or suspi-' cion and did believe,”' so that the said Relf and Chew had' acted fraudulently in setting up and proving the will of 1811. And the complainants pray that effect may be given to the will of 1813, and-that the will of 1811 may be revoked; and that the defendants may be decreed to deliver up possession of the lands purchased as aforer said, and account for the rents, See.; and that the executors may be decreed to account The complainants ■ also represent thát the said Myra is the only heir-at-law of the said Clark; and that his properly descended to her, &c. In addition to the'special relief asked, the complainants pray for “ such other and further relief in the premises, as the nature of the case may require.”
To the bill, several of the defendants filed .a special demurrer. On the argument of the demurrer, the opinions of the judges were opposed on the following points.
1. Is the bill multifarious? and have the complainants a right to sue the defendants jointly in this c'ase.
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.
3. Has the court jurisdiction of this case, or does it belong exclusively to a court of law. The demurrer is not before the court, but the points certified. In considering these points, all the facts stated in the bill are admitted.
Whether the bill be multifarious or not is the first inquiry.
' The complainants have made defendants, the executors named in the will of 1811, and all who have come to the possession of pro
It is well remarked by Lord Cottenham, in Campbell v. Mackay, 7 Simon, 564, and in 1 Mylne and Craig, 603, to lay down any rule, applicable universally, or to say, what constitutes mullifariousness, as an abstract proposition, is, upon the authorities, utterly impossible.” Every case must be governed by its own circumstances; and a§ these are as diversified as the names of the parties, the court must exercise a -sound discretion on the subject. Whilst parties should not be subjected to expense and inconvenience, in litigating matters in which they have no interest, multiplicity of suits should be avoided, by,uniting in one bill all who have an interest in the principal matter in controversy, though the interests may have arisen under distinct contracts.
In a course of reasoning in the above-cited case, Lord Cottenham observes, «If, for instance, a father executed three deeds, all vesting property in the same trustees, and upon similar trusts, for. the benefit of his children, although the instruments and the parties beneficially interested under all of them were the same, it would be necessary to have as many suits as there were instruments. That is a proposition,
In the above case against Cradock, the chancellor says, “The object of the rule against multifariousness is to protect a defendant from unnecessary expense; but it would be a great perversion of that rule, if it were to impose upon the plaintiffs, and all the other defendants, two suits instead of one;”
The bill prays that the defendants, Relf and Chew, maybe decreed to account for moneys, &c., which came into their hands, as executors, under the will of 1811; and that the other defendants, who purchased from them real and personal property, may be compelled to surrender the same, and account, &c., on the ground that they had notice of the fraud of the executors.
The right of the complainant, Myra, must be sustained under the will of 1813, or as heir-at-law of Daniel Clark. The defendants claim mediately or immediately under the will of 1811, although their purchases were made at different times, and for distinct parcels of the property. They have a common source of title, but no common interest in their purchases. And the question arises on this state of facts, whether there is misjoinder or multifariousness in the bill, which makes the defendants parties.
On the part of the complainants there is no misjoinder, whether the claim be as devisee or heir-at-law. And the main ground of the de fence, the validity of the will of 1811, and the proceedings under it, is Common to all the defendant?. Their interests may be of greater or less extent, but that constitutes a difference in degree only, and not in principle. There can be no doubt that a bill might have been filed against each of the defendants, but the question is whether they may not all be included in the same bill.
The facts of the purchase, including notice, may be peculiar to each' defendant; but these may bé" ascertained without inconvenience or expense to co-deféndánts. In every fact which goes to impair or establish the authority of the executors, all the defendants are alike interested-. In its present form the bill avoids multiplicity of suits,
We come now to inquire “ whether the court can 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.”
The bill charges that the will of 1813 was fraudulently suppressed or destroyed by Relf; and that he fraudulently procured the will of 1811, in which he and-Chew were named as executors, to be proved.
It is contended that the Court of Probate in Louisiana has exclusive jurisdiction of the probate of wills, and that a Couft of Chancery can exercise no jurisdiction in such a case.
In the Code of Practice, art. 924, it is declared, that-“ Courts of Probate have the exclusive power
1. “ To open and receive the proof of last wills and testaments, and to order the execution and recording them.” There are.thirteen other specifications which need not be named. By art. 925, it is declared that, “the Courts of .Probates shall have no jurisdiction except in the cases enumerated in the preceding article, or in those which shall be mentioned in the remaining part of this title.” .
In regard “ to the opening and proving of wills,” after providing where application for probate shall be made, and the mode, the following articles are adopted.
Art. 934. “ If the will be contained in a sealed packet, the judge shall order the opening of it at the time appointed by him, and shall then proceed to the proof of the will.”
Art. 936. “ If the petitioner alleges under oath in his petition, that he is informed that the will of the deceased, the opening of which and its proof and execution are prayed for, is deposited in the hands of a notary Or any other person, the judge shall issüe án order to such notary or other person, directing him to produce the will or the packet containing it, át .a certain ..time to be mentioned, that it
Art. 937. “If the notary or Other individual to whom the said order is directed, refuses to obey it, the judge shall issue an order to arrest him, and if he does not adduce good reasons for not producing the will, shall commit him to prison until he, produces it; and he shall be answerable in damages.to such persons as may suffer from his refusal.”
From the above provisions it is clear that, in Louisiana, the Court of Probates has exclusive jurisdiction in the proof of wills; and that its jurisdiction is not limited, like the ecclesiastical court in England, to wills which dispose of personal property. Has a court of equity power to set up a spoliated will, and carry it into effect ?
Formerly it was a point on which doubts were entertained, whether courts of equity could not relieve against a will fraudulently obtained. And there are cases where chancery has exercised such a jurisdiction. Maundy v. Maundy, 1 Chan. Rep. 66; Welly v. Thornagh, Prec. Chanc. 123; Goss v. Tracy, 1 P. Williams, 287 ; 2 Vernon, 700. In other cases, such a jurisdiction has been disclaimed, though the fraud was fully established, as in Roberts v. Wynne, 1 Chan. Rep. 125; Archer v. Moss, 2 Vernon, 8. In another class of cases the fraudulent actor has been held a trustee for the party injured. Herbert v. Lawnes, 1 Chan. Rep. 13 ; Thynn v. Thypn, 1 Vernon, 296; Devenish v. Baines, Prec. Chan. 3; Barnesly v. Powell, 1 Ves. 287, These cases present no. very satisfactory result as to the question under consideration. But since the decision of Kenrick v. Bransby, 3 Brown’s P. C. 358, and Webb v. Cleverden, 2 Atkyns, 424, it seems to be considered as settled, in England, that equity will not set aside a will for fraud and imposition. The reason assigned is, .where personal estate is disposed of by a fraudulent will, relief may be had in the ecclesiastical court; and at law, on a devise of real property. Bennett v. Vade, 2 Atkyns, 324 ; 3 Atkyns, 17; Gingoll v. Home, 9 Sim. 539; Jones v. Jones, 3 Mer. 171.
In the last case the Master of the Rolls says, “ it is impossible that, at this time of day, it can be made a serious question, whether it be in this court that the validity of a will, either of real or personal estate, is to be determined.”
In cases of fraud, equity has a concurrent jurisdiction with a court •of law, but in regard to a will charged to have been'obtained through fraud, this rule does not hold. It may be difficult to assign any very
By art. 1637 of the Civil Code, it is declared that« no testament can have effect unless it has been presented to the judge,” &c. And in Clappier et al. v. Banks, 11 Louis. Rep. 593, it is held, that a will alleged to be lost or destroyed and which has never been proved, cannot be set up as evidence of title, in an action of revendication.
In Armstrong v. Administrators of Kosciusko,
In Tarver v. Tarver et al.,
The American decisions on this subject have followed the English authorities. And a deliberate consideration of the question leads us to say, that both the general and local law require the will of 1813 to be proved, before any title can be set up under it. But this result does not authorize a negative answer to the second point. We think, under the circumstances, that the complainants are entitled to full and explicit answers from the defendants, in regard to the above wills. These answers being obtained may be used as evidence before the Court of Probate to establish the will of 1813 and revoke that of 1811.
In order that the complainants m&y have the means of making, if they shall see lit, a formal application to the Probate Court, for the proof of the last will and the revocation of the' first, having the answers of the executors, jurisdiction as to this matter may be sustained. And, indeed, circumstances may arise, on this part of the case, which shall require a more definite and efficient action by the Circuit Court. For if the Probate Court shall refuse to take jurisdiction, from a defect of power to bring the parties before it, lapse of time, or on any other ground, and there shall be no remedy in the higher courts of the state, it may become the duty of the Circuit Court, having the parties before it, to require them to go before the Court of Probates, and consent to the proof of the will of 1813 and the revoca
This view seemed to be necessary to show on what ground and for what purpose jurisdiction may be exercised in reference to the will of 1813, though it has not been admitted to probate.
The third point is, “ has the court jurisdiction in this case, or does it belong exclusively to a court of law?”
Much that has been said in relation to jurisdiction on the second point,-equally applies to this one. Indeed, they might have been considered under the same general head.
The bill is inartificially drawn, and, to reach its main objects, may require amendment in the Circuit Court. It presents the right of the complainants in two aspects:
1. Under the will of 1813.
2. As heir-at-law of the deceased.
The first has been examined, and we will now consider the second.
In prosecuting their rights as heir-at-law by the complainants, no probate of the will of 1813 will be required. The complainants must rest upon' their heirship of the said Myra, the fraud charged against the executors, in setting up and proving the will of 1811, and notice of such fraud by the purchasers. In this form of procedure, the will of 1811 is brought before the court collaterally. It is not' an action of nullity, but a proceeding which may enable the court to give the proper relief without decreeing the revocation of the will. Such a proceeding at' law in regard to real estate is one of ordinary occurrence in England. And it is upon the ground that, such a remedy is plain and adequate, that equity will not give relief. There can be no. doubt, as between the heir-at-law and devisee, in ordinary
The district judge held, “ that as the will sought to be annulled had been admitted to probate, and ordered to be executed, the court had no jurisdiction, but that the Probate Court had exclusive jurisdiction of the case.”
After stating the above decision of the District Court, the Supreme Court say, “ The plaintiff sets up a claim under the law of inheritance to lands, slaves, and a variety of movable property; that these are proper subjects for the exercise of the jurisdiction of district courts cannot Be doubted. But the petitioner proceeds further, and alleges the nullify of the will, which constitutes the very title under which the defendant holds the property in controversy. Before what court then must the validity of this will be tested ?”
The court consider the jurisdiction of the Court of Probates, and then proceed to say, “ It appears that the jurisdiction of the courts of probates is limited to claims against successions for money, and that all claims for real property appertain to the ordinary tribunals, and are denied to courts of probate. The plaintiff in this case was, therefore, compelled, in suing for the property of the succession, to seek redress in the District Court, and whether she attacked the will, or the defendant set it up as his title to the property, the court having cognisance of the subject must of necessity examine into its legal effect.”
“ When in an action, of revendication a testament with probate becomes a subject of controversy, it will surely not be contended,” say the court; “ that a’court of ordinary jurisdiction, having cognisance .of the principal matter, shall suspend its proceedings until another court of limited powers shall pronounce upon the subject.” “ If the ordinary courts should examine into the validity of testaments, drawn in controversy before them, they will do no more than we have often said, a court of limited jurisdiction may do, even in relation to a question it could not directly entertain.” The court cite
The above doctrine is fully affirmed in Robert v. Allier’s agent, 17 Louis. Rep. 15. “ On the question of jurisdiction arising from the state of the case, we understand,” say'the court, “ the distinction repeatedly made by (his court to be, that whenever the validity or legality of a will is attacked, and put at issue,.(as in the present case,) at the time that an order for its execution is applied for, or after it has been regularly probated and ordered to be executed, but previous to the heirs or legatees coming into possession of the estate under it, Courts of Probate alone have jurisdiction to declare it void.” “ But when an action of revendication is instituted by an heir-at-law, against the testamentary heir or universal legatee who has been put in possession of the estate, and who sets up the will as his title to the property, District Courts are the proper tribunals in which' suits must be brought.” 6 Martin’s N. S. 263 2 Louis. Rep. 23
The functions of the executors under the will of 1811 have long since terminated, and the property of the deceased, both real, and personal, has passed -into the hands ’of purchasers. If the heir-at-law and the devisee were the only litigant parties, a suit at common law might afford-an adequate remedy. But the controversy is rendered complicated by the numerous parties and the various, circumstances under which their purchases were made. Besides, many facts essential to the complainant’s rights are within the knowledge of the defendants, and may be proved only by their answers. -Of this character is the fraud charged against the executors in proving the will and acting under it, and the notice of such fraud before their purchase, alleged against the other defa suits.
If the fraud shall be established against the executors, and a notice of the fraud by the other defendants, they must bp considered, though the sales have.the forms of law, as holding the property in trust for the complainants. Under these circumstances a suit at law could not give adequate relief. A surrender of papers and a relinquishment of title may become necessary. The powers of a Court of Chan-
This remedy under the Louisiana law, and before the Louisiana courts, of ordinary jurisdiction, would be undoubted. For, although those courts cannot annul the probate of a will, when presented collaterally, as a muniment of title, they inquire into its validity. Under the peculiar system of that state the forms of procedure being conformable to the civil law, are the same in all Cases. But the Circuit Court of the United States, exercising jurisdiction in Louisiana, as 'in eveiy other state, preserves distinct the common law and chancery powers. In either the state or federal court the relief is the same; the difference consists only in the mode of giving it.
It is insisted that trusts are abolished by the' Louisiana code, and that, consequently, that great branch of equity jurisdiction cannot be exercised in that state.
Art. 1507 of the Civil Code declares, “ that substitutions and Jidei commissa are and remain prohibited.” “ Every disposition by which the donee, the heir or legatee, is charged to preserve for, or to return a thing to a third person, is null, even with regard to the donee, the instituted heir, or the legatee,” &c.
This abolishes express trusts, but it does not reach nor affect that trust which the law implies from the fraud of an individual who has, against conscience and right, possessed himself of another’s property. In such a case the Louisiana law affords redress as speedily and amply as the law of any other state. There is, therefore, no foundation for the allegation, that an implied trust, which is the «reature of equity, has been abrogated in Louisiana. Under another name it is preserved there in it,s full vigour and effect. Without this principle, justice could not be administered. One man possesses himself wrongfully and fraudulently of the property of another; in equity, he holds such property in trust, for the rightful owner.
In answer to the objection, that the validity of the will of 1811, collaterally, can only be tested by an action at law and on an issue devisavit vel non, it may be said, that such an issue may be directed by the Circuit Court.
Complaint is made that the federal government has imposed a foreign law upon Louisiana. There is no ground for this complaint. The courts of the United States have involved no new .or foreign principle in Louisiana. In. deciding controversies in that state the local law-governs, the same as in every other state. Believing that
From the foregoing considerations, the court answer the first point certified in the affirmative, subject to the amendments of the bill, as suggested. And they answer the second and third points, with the qualifications stated, also in the affirmative.
Concurrence Opinion
I agree the points certified must be answered favourably to the complainants; but I do not altogether agree with the reasoning that has led a majority of my brethren to this conclusion.
The answer to the second question, controls the answers to the others; it is, “ Can the Circuit 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?”
The will of 1813, cannot be set up, without a destruction of. the will of 1811; this will has been duly proved,, and stands as a title to the succession of the estate of Daniel Clark; nor can the Circuit Court of the United, States set the probate aside:■ this can only be done by-the Probate Court.
Nor can the will of 1813, be set up in.chancery, as an inconsistent and opposing succession to the estate, .while the will of 1811, is standing in full-force. Such is the doctrine in the English Court of Chancery, as will be seen by the cases of Archer v. Mosse, 2 Vern. 8; Beale v. Plume, 1 P. Wms. 388—and which are confirmed by the case of Kenrick v. Barnsby in the House of Lords, 7 Bro. P. Cases, 437. Nor do the doubtful suggestions of Lord Hardwicke in Barnsby v. Powel, 1 Ves. sen., 119, 284, conflict with the previously settled doctrine, as I understand that-case. The argument that a fraudulent probate is a fraud on the living, and therefore Chancery can give relief by setting aside such probate, is «.mistaken idea of the chancery powers. Surely the probate of á fraudulent or forged paper, is a fraud on the living, as much as the suppression of the last will, and the causing to be proved, a revoked one; still chancery has not assumed
It by no means follows, however, that the court below has no jurisdictión of the case made by the bill-in one of its aspects. Mrs. Gaines claims,to be the only child and lawful heir of ’Daniel Clark. This we must .take to be true. By the Civil Code of 1808, ch. 3, sec. 1, art. 19, p. 212, it is declared “ That donations either inter. vivos, or mortis causd, cannot exceed the fifth, part of the property of the disposer, if he leaves at his decease one or more legitimate children or descendants, born or to be bom.”
By the case made in the bill, Mr. Clark could only dispose of one-fifth part of his property at the time of his death; provided he had no wife living; and if she was living, then only of the one-fifth part of one half. It follows, if the will of 1811, is. permitted to stand as Daniel Clark’s last and only will, that Mrs. Gaines can come in as heir for the four-fifths. On this aspect of the bill she can proceed to establish, and enforce her rights as heir, without making probate of the will of 1813 — and the second question must be answered in the affirmative.
. By the will of 1811, Mary Clark is the principal devisee. Shfc made her will and died; by this will, Caroline Barnes is entitled to part of Daniel Clark’s estate, and ought to be before the court to maintain her rights. I, therefore, do not concur that as to her the bill is multifarious. As to the purchasers from the executors, I have more difficulty. I agree, where there is one common title in the complainant; and this could only be the true source of all the titles in all the defendants, and they have not obtained the first link in the chain of title; that than the true owner may sue them together in chancery, although they claim by separate purchases from a spurious source. Such is the genefal rule; nor do I think the purchasers frcm Chew and Relfe, are exempt from its operation, on the ground that they have no concern with the settlement of the accounts growing out of the 'administration. I therefore concur in answering the first question — that the bill is not mfiltifarious.
The third question presents no difficulty as to the executors; they are properly sued in chancery for distribution beyond doubt: and so I imagine are the devisees of Mary Clark; they being'by the will- of
The purchasers are charged with having purchased with knowledge of Mrs. Gaines’s superior title; and with having fraudulently purchased from the executors with such knowledge; there being jurisdiction to grant relief against the. executors, in chancery, thé same court can grant' relief against the purchasers, involved in the fraud of the executors. If they could be compelled to account in regard to the real estate when it remained in their hands; purchasers with .notice of Mrs. Gaines’s rights; and who purchased with the intention to defeat her rights and deprive her of them, can stand in no better situation than the executors, and must account .likewise; both being held in a court of equity equally as trustees for the true owner. Therefore, on the face of the bill, a-court of equity has jurisdiction; and a court of law has not exclusive jurisdiction, and thus the third point ought to be certified.
ORDER.
This cause came on to be heard- on the transcript of the record from the Circuit Court of the United States for the eastern district of Louisiana, and on the points and questions which-were certified to this court for its opinion agreeably to the act of Congress in such case made and provided, and was argued by counsel. On consideration whereof, It is the opinion of this court that the first question should be answered in the affirmative; but that the bill should be so amended in the Circut Court as to avoid both of the exceptions stated in the opinion of this court, and that the second and third questions should also be answered in the affirmative, ’’Cvith the qualifications stated in the opinion of this court. Whereupon, it is now here ordered and adjudged, that it be so certified to the judges of the said Circuit Court.