Patterson v. GainesPatterson v. Gaines
delivered tire opinion of the court.
The history of this case will be found in. the report of the case of Gaines
v.
Relf and Chew, in
This is the fourth time that the cause has been before this court. Its' decision', in each instance hitherto, has been in favor of the complainants.
. The third time, it was brought here upon points upon which the judges in the Circuit Court were divided in their opinions. They arose upon the argument of demurrers, filed by several of the defendants.
It was said there was a want of equity in the bill; that there was a complete remedy atT law ; that the bill was multifarious, and that there was a misjoinder of parties; that the will of 1813, upon which the complainants relied for a recovery, had not been admitted to ^probate; and that if the complainants relied upon Mrs. Gaines being the forced, heir of Daniel Clark, whatever that right might be, it was recoverable at law.
Upon the argument of the demurrers, three points were made upon which the judges could not agree, and they were certified to this court for its decision.
Those points were, —
1st. Was the bill multifarious, and have the complainants a right to sue the defendants jointly in this case ?
Whether the court could entertain urisdiciion of the cause, without probate of the will set up by the complainants, which they charge to have been destroyed and suppressed ?
3d. Has the court jurisdiction Of this cause, or does it belong exclusively to a court of law ?
. On the first point, this court, for reasons which are as satisfactory to us as they were to the judges who then heard the argument, decided that the bill was not multifarious; that there was no misjoinder, excepting that the purchasers of the property of Daniel Clark had no interest in the rendition of the accounts by the . executors, under the will of 1811, nor any with what
Upon thé second point, this court, upon a full review of the authorities, came to this conclusion, — that both .the general and local law require the will of 1813 to be proved in the Court of -Probates before any title can be set up under it; but that this result, did not authorize a negative answer to the second point.
. The court said, that, under the circumstances of. the case, the complainants were entitled to full and explicit answers from the defendants in regard to the wills of 1813 and 1811, and that such answers, being obtained, might be used as evidence before the Court of Probates to establish the will of 1813; and to revoke that of 1811. The answer was pertinent to the inquiry, and nothing beyond it. We have adverted to it. to .show that the decree,of the Circuit Court now under consideration has no' connection with the will of 1813, and that it was made, by that , court under the answer.given by the court to the third, point.
The third point was," Has the court jurisdiction of the, cause, or does it belong exclusively to a court of law.?.
This, point involved, the jurisdiction of the court in every aspect in which the bill could be viewed. So the court considered it. The, claim made'in the bill for Mrs. .Gaines did not rest aloné upon the alleged will of 1813, but also upon the ' allegation, that she was the legitimate child of Daniel Clark, and.,under the' law of Louisiana, was his forced-heir. The court said, “ The complainants, in prosecuting their rights upon tlje ground of Mrs, Gaines being the heir at law, no probate of the will of 1813 will be required. They must , rest upon the heirship of Mrs. Gaines, the fraud charged upon the executors to the will-of 1811, aiid 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 thé court to givé proper relief without decreeing the revocation of the will of 1811."
Such were.; the answers given by. this court to the points which had been certified-to it.
, The Circuit Court, in the. subsequent trial, of the cause .between the complainants and the appellant, Mi?. Patterson, has decreed that Mrs. Gaines is the forced heir of Daniel Clark, or in other words, that, being his legitimate child, she was entitled, under the laws of Louisiana, to her Ugitime in his estate at the'time of his death.
The practice, of granting issues is limited to cases in which the court, in the fair exercise of its discretion, considers that justice will best be obtained by . that course, Discretion, we mean, as it is guided by what has been the practice of courts of chancery. Gardner
v.
Gardner,
In the English chancery, except in the case of an heir at law or of a rector or vicar, it is not a matter of right. In the American courts of equity we know of no practice establishing an issue as a matter of right. In Virginia and others óf our States, the heir’s right to an issue is given by statute. As the English chancery, in the exceptions mentioned as a matter of right, has allowed them, upon the ground that the common law “invests a party filling a particular situation.with certain rights, of which it is the object of the suit to divest him, we presume that where, by operation of the law, in either of'the States, particular persons, have ah interest in the property of an ancestor, whatever might be the evidence in favor of the authenticity and genuineness of the will, if the heirs at law object to its being done, the court will not establish the will, without the opinion of a jury upon a devisavit vel non.”
We have recurred to what has been hitherto decided in this cause concerning jurisdiction, to prevent hereafter, in the further progress of it against any of the defendants, any doubt about it; and that the principles upon which this court has asserted it might be better understood than they seem to have been at the bar.. The Circuit Court, in rendering its decree, understood it perfectly. We have been particular, too, in repeating what was decided by this court ^in
The cause is now before this court upon the appeal of Mr. Patterson.
The argument of the learned counsel, Messrs. Brent and May, in favor of- the reversal of the decree may be condensed as follows: —
1. There is no circumstantial evidence in favor of the marriage between the mother of Mrs. Gaines and Daniel Clark.
2. The testimony of Madame Despau, who declares that she was present at the marriage, is not entitled to belief on many accounts.
3. Mr. Clark’s acknowledgments that Myra, Mrs. Gaines, 'was his legitimate child, even if admissible, are contradictory, if De la Croix has spoken the truth, as he spoke differently
4. Conceding, exempli gratia, that there was a factum of. the alleged marriage, still, there is proof of the marriage, of .the mother of Mrs. Gaines with De Grange, and no legal or satisfactory proof of the nullity of .that' marriage'; because De Grange’s confessions that he had a wife alive at the time he married the mother of Mrs. Gaines are not evidence, — particularly not so in this case, as the appellant' does not claim the property for which he is sued. under De Grange. The argument of counsel upon the point' of a previous and. subsisting marriage was this : — There is direct proof of a marriage between Zuline Carriere; the mother of Mrs. Gaines, and De Grange. To annul it, there is no other testimony than the hearsay of De Grange’s confessions, and Gardette’s declarations, that, when De Grange married Zuline, he Was then a married man, — that it was. a common rumor in New Orleans, that such was the fact, — that a woman calling herself Mrs. De Grange; and claiming to be the wife of De Grange, came, to New Orleans in pursuit 6f him, as her husband, . It is said, if she did, her assertions were equally hearsay. Reputation in New Orleans that the marriage .with Zuline was null would be no evidence of the fact. Further, it is said thé attempt to prove De Grange’s conviction for bigamy is a failure. But even if. the record of his conviction had been produced, which was not done, it is res inter alios, acta, and could not be admitted' against the appellant, who does net claim under De Grange, but under conveyances from the executors to the will of 1811;
The counsel also contend; whether they are right or wrong in the foregoing positions is a matter, of no consequence,‘except as showing the history of the case, and tending to prevent further litigation, because, by the code of Louisiana of 1808, reenacted in this particular in. the code of 1825, it is declared that a person holding property by sale from a donee of an excessive donation is only liable to the forced heir,. after an execution first had. against the property qf the- donee. Under both codes, too, the third possessors are only liable in theordér of their purchases. . That the
legitime
of the forced hen . is not to be recovered" in the specific property, but in the value of the Ugitime,'as it may be ascertained under the Louisiana codes. For these last positions, counsel "rely upon the language of the codes, and upon the case of Hodder Shepherd et al., 1 Louis. R. 505. That was a casé which arose under the code of 1808, but. is cited in the new code as a
The statute of limitations, it was also said, barred a recovery by the complainants.
Wé have stated more particularly than we would otherwise have done the arguments urged by the counsel of the appellant,. and in the strongest way in which they were presented. It was due to the importance of the case, to the interest of all concerned in this , controversy, and because the arguments of both of the counsel command our respect; Parts of some of these-objections have our acquiescence, others Have not.
Our conclusions relating to the marriage of the mother of Mrs. Gaines to her father, the lawfulness of the marriage, and that she is the legitimate offspring of that marriage^ differ from all that has been urged against them..
The marriage, the' legitimacy of Mrs. Gaines, and the-.validity of the sales made by the executors, make the substance of this case put in issue by the pleadings. Were, those pleadings different from.whajt they are, there would be enough to prove the marriage and the . legitimacy of Mrs. Gaines. But as the pleadings, are, We cannot, .upon the evidence, exclude, such conclusions.
The' marriage must be proved, according to what would be proof of it where .it took place. This marriage took place in Pennsylvania, at. Philadelphia, in the presence' of a witness who says she was present, and that the ceremony was- performed by a Catholic priest. “ Marriage- is a civil contract ixi Pennsylvania, to be completed by any words in "the present tense, without regard to form.” Hantz
v.
Sealy, 6 Binney, 405. “Marriage is to be decided by.the laws of the place where celebrated.” Phillips
v.
Gregg,
The bill asserts the marriage, its lawfulness, and that Mrs..
In the case of the Union Bank
v.
Geary,
Madame Despau says, — “ Daniel Clark was married in. Philadelphia, in 1803, by a Catholic priest'. I was present at the marriage. One child was born of this marriage, to wit, Myra Clark (now Mrs. Gaines), who married William Wallace. Whitney, son of General T. Whitney of the State of New York. I was present at her birth, and knew that Mr. Clark claimed' arid acknowledged her to be his child. -She was born in 1806. I neither knew, nor had' any reason to believe, any other child besides Myra was born of that marriage.” The witness then proceeds to relate what she terms the circumstances of the marriage, including the previous marriage of Zuline Garriere with De Grange, his subsisting marriage when he married Zuline, and the result of it, when that fact had been discovered
. Marriage, may be proved by any person who w¿s present, and can identify the parties. St. Devereux v. M. Dew Church, Burr, S. C. 506; 2 W. Black. 145.
If the marriage were in a foreign country, proof that it was. solemnized in the manner usual in that country will be good' presumptive proof that it was a valid marriage. Lacon v. Higgins, 3 Stark. 178.
Marriage by a person habited as a priest and being per verba de presentí,.the person performing the ceremony must be presumed to have been a clergyman. Rex v. Brampton, 10 East, 282.
In what- way is the attempt made to lessen the force of her testimony ? In no other than by negative declarations of other persons who .knew Clark, that théy do not believe he was ever married, and,by the witness De la Croix, who says, — and he is tl. <= only witness who says so, - — that Clark spoke to him of Myra as his natural child.. A hundred such witnesses would not be sufficient to impeach the testimony of one witness swearing positively to the ■ fact. of the marriage. And allowing that Clark, did so speak to De la Croix, a husband’s declarations of the illegitimacy of á . child when the marriage has been so proved is not .sufficient to rebut the presumption of its having been lawfully begotten, until the presumption is disproved by evidence showing the want of access between the husband and •wife. Bury v Phillpot, 2 M. & K. 349.
Once the marriage is proved, nothing shall be allowed to impugn the legitimacy of the issue short of the proof of facts showing it to -be impossible that the husband could be the father. See opinion of the' judges in Banbury Peerage case by Le Marchant. Access is presumed, unless the contrary be plainly proved.
But all the other witnesses, some of whom were more in Clark’s confidence than De la Croix was, say that he spoke to them- of Myra as hip legitimate child, calling her such.
Pierre-Baron Bois Fontaine declares, that Clark treated him as a confidential friend in matters relating to Myra and to his affairs • generally; that he was with Clark when he died. He says Clark repeatedly , spoke to him of Myra as his legitimate child. Nearly his last words .were about her. And .further' he spoke of her mother with great respect, and frequently told him, after her marriage with Gardette,- that he would have made his
Mrs. Harriet Smith says, — “ Mr. Clark and my late husband, Mr. Harper, were ■ intimate friends, &c. I suckled in her infancy Mr. Clark’s daughter Myra. I did it voluntarily, in consequence of her having suffered from the hired nurses. Mr. Clark considered that this constituted a powerful claim -on his gratitude and friendship, and he afterwards gave me his confidence respecting her.” . The interesting and truthful narrative of this witness of the relations between the father and the child, from her birth to the time of his death, and his frequent declarations that he would acknowledge her as his legitimate child, must make strong impressions iipon any reader of it that she was such) Belle Chasse, the intimate and confidential friend of Clark for many years, and who proved himself, as the facts in the case show, worthy of that relation, says, —With much reflection and deliberation, Clark spoke of his being occupied in preparing his last will. On these occasions, in the most ‘impressive and emphatic manner, he spoke of Myra as the object of his last will, and that he should in it declare her to. be his legitimate child and heiress of all his estate.”
Madame Caillaret, the sister of Zuline, says she was not present at the marriage of her sister with Mr. Clark, “ but I do know that Clark made proposals of marriage with my sister. Mr. Clark’s proposals of marriage were made after it became known that her marriage with Mr. De Grange was void, from the fact of his having then, and at the time of his marrying her, a living wife. . These proposals were deferred" being accepted until the record proof of De Grange’s previous marriage could be obtained, and Zuline, with her sister, Madame Despau, ¡sailed for the
North of the United' States,
to obtain the record proof.” Thus confirming-what Madame Despau likewise says of Clark’s proposals of marriage: — “ Mr. Clark made proposals of marriage to my sister, with the knowledge of all our family. It was considered essential first to obtain record proof of De Grange having a living wife at the time he married my sister, to obtain which from the records of the Catholic church in New York, (where Mr. De Grange’s prior, marriage was celebrated,) we sailed for that, city., Mr.. Clark arrived after us. We heard that a Mr. Gardette, then living in Philadelphia, was one of the witnesses of Mr. De Grange’s prior marriage. We proceeded to that city, and found Mr. Gardette. He answered,' that he had been present at the prior marriage of De Grange) and that' he afterwards knew De Grange and his wife by ..this marriage, — that .this wife had sailed for France. Mr. Clark then said, £You have no reason any ’longer' to refuse being
Now, rejecting all that Gardette is said to have said, all that Madame Despau says of the prosecution of De Grange, for bigr amy, and of the appearance of a female in New Orleans .claim-. ing De Grange fpr her husband, as not being within the allowable limits of hearsay testimony in a question of pedigree, the concurring testimony of two witnesses im ithe family as to Mr. Clark’s proposals of marriage is such a corroboration of the declaration of one of them, that the marriage took place in her presence, as to make a basis broad enough to receive the declarations of the father, and his affectionate treatment of his child from her birth to his death, as conclusive of his marriage with her mother, and of her legitimacy. Such declarations, ; where there are probable grounds of a marriage, are the best proof in a question of pedigree. Just such — though they are within what is termed hearsay — as experience has shown to be necessary, in cases of doubt, to establish conjugal relations and the legitimacy of children. Such declarations, unlike those which De la Croix says Mr. Clark made to him, have always been received to establish the legitimacy of a child, with or without proof of . marriage ; and when there is in a case the positive , testimony of one witness to a marriage, théy are conclusive proof of legitimacy-.
What is urged against such a conclusion in this case ?
The conduct. of the parties in, not -promulgating their marriage, and not occupying the same house upon their return to New Orleans. In connection with that conduct, the testimony of De la Croix,, that Colonel and Mrs. Davis, who reared Mrs. Gaines at the request of her father, knew nothing of his marriage.; that the witnesses, Mr. Coxe and Mr. Hulings, who were, for a long time the' intimates of Mr. Clark, — the former his partner in business, *— swear, to the best of their be
The first is a good objection, until it has been reasonably accounted for. We do not mean so accounted for as to make it proper, but enough so to separate such conduct from the suspicion of an illicit connection.
Madame Despau declares, when the marriage was contracted in Philadelphia and afterwards upon their arrival in New On leans, that Clark said the marriage could not be disclosed on account of Zuline’s previous marriage with De
Grange;
that legal proof must be obtained of the previous marriage of De Grange, and that an action would have to be brought by Zuline “against his name.” This is substantially confirmed. by Madame Caillaret, in her statement of the proposals for a marriage by Mr. Clark, and it having been deferred for the reason given by Madame Despau for its concealment. It is confirmed by what other ■ witnesses say, as well as Madame Despau, of the arrest and imprisonment of De Grange for bigamy, to which they all swear as within their own knowledge, and by the subsequent proceedings in. the City Court against De Grange. (Record, 206.) Connect the preceding with the mode of proceeding in Louisiana to impeach a marriage with one unable to contract marriage, its existing‘application to De Grange, and what might then have been its application to Mrs Clark if her marriage in Philadelphia had been disclosed before a sentence of the nullity of her marriage with De Grange hac been obtained, and we shall have facts from which motives fo concealment of it may be inferred diverse from and stronger than the usual suspicion of its having been caused by. an. illicit intercourse. It was not, necessary to the validity of the marriage in Philadelphia, that a sentence of dissolution should have been first pronounced in Louisiana against De Grange. -By the law of the latter, as well as, by the law of Pennsylvania, the marriage with De Grange was void from the beginning. A void marriage imposes no legal restraint upon the partyfimposed upon from contracting another, though prudence and delicacy do, until the fact is so generally known as not to be a matter of doubt, or until it has been impeached in a judicial proceeding, wherever that may be doné. -Mr. Clark probably knew what we have just stated concerning the validity of his marriage; but from his pride and temper, as his character has been disclosed in this record, was it not probable, not to say natural, that such a man, anticipating his return to Louisiana, would resort to the course which was pursued', to- keep his feelings from being wounded, until a judicial sentence had re
Time with him was near its end, and the truth was told.
De la Croix’s testimony, in the particular in which it is relied- upon, differs from that of all the other witnesses, who have deposed ‘to what Mr. Clark said to them, repeatedly, of the legitimacy, of his child.
■ We regard it the less, for notwithstanding his intimacy with Mr. Clark, and the confidence which he had in De la Croix’s, suitableness to be the guardian of Myra, he says Mr. Clark never spoke to him about her, except on the occasion when he was asked to become his executor and her tutor. Record, 233, 234. This declaration to De la Croix, supposing it to
In such a case-, we have not a choice of conclusions, but must take that which the positive proves.
Hitherto-, the testimony of De la Croix has been treated as if it was. altogether unexceptionable. It is not so. There is in it that cold hardness of a man of the world, unmindful óf the relations of former friendship whilst professing to regard them, but little in unison with kindness, and not at all so with . the. seriousness ..of! exact truth. Such men will not swear to
Again, suppose the fact of legitimacy in this case had been placed altogether upon the evidence of Belle Chasse and • De la Croix, that of the former would not have been proof of it. But if Belle Chasse’s testimony is fortified by that of others, speak-: ing as strongly as he does of Clark’s declarations of his daughter’s legitimacy, it would not be reasonable to discard it for the testimony of De la Croix, which is unsupported by any other witness..' Is the- conclusion one less of proof, because .Colonel and Mrs. Davis, who reared the child at the request of her father, were ignorant of his marriage ? because Mr. Coxe and Mr. Hulings, who knew him well, say that they knew nothing of Mr. Clark’s .marriage, the two last declaring so to the best of their belief? All of this is negative testimony, implying ignorance of the fact of which they speak, and not knowledge of it, — a fact susceptible of positive proof, or of proof by facts from which marriage may be inferred. The rest of the testimony, of. Mr. Coxe, Mr. Hulings, and - De la Croix, in respect to the marriage, is excluded from our consideration, from not being within the. rules, by which hearsay is admissible in cases of pedigree. Neither of them relate any thing as coming from the parents of Myra, or the relations on either side of the marriage. The only point in which the testimony of Mr. Coxe differs from that of Madame Despau is in his narrative of the arrangement made by him, at the request of Mr. Clark, for the birth of Caroline, now Mrs. Barnes. Madame Despau'says she was the child.of De Grange; Mr. Coxe, that Clark told him that she was his child. These declarations are at variance with each other as to the fact, but not contradictory. The fact.may.be asoné ,or the other witness has relatéd it. The difference,, therefore, does not at all discredit Madame ’ Despau. But the ignorance of Colonel and Mrs. Davis of the marriage, in connection with the arrange
' .The witnesses speak of the extraordinary affection manifested by Mr. Clark for this child, -c— his daily visits, parental and endearing fondness, — his costly presents and manifested pride mber, as time developed her mind and appearance, —and that he always called her Myra Clark. All of this' is ■not inconsistent with what men of generous temper-will and should do to repair as much as they can, in such cases, their indiscretion as. to.the birth of a child. But when a parent does it, with subsequent declarations, made over and over again, to several persons; of “a child’s legitimacy, they may well be united with the latter to remove the objection, that Mr. Clark had not mentioned his marriage to Colonel'and • Mrs. Davis. Besides, let it be remembered that the evidencé shows, up to that time, he had mentioned his marriagé to no one. Madame Despau, his wife, and himself .only knew the* secret, and his influence over them made it his own, until they could speak free from the apprehensions excited in them by his declaration, that, the marriage was not to be disclosed until the marriage with De Grange had been judicially annulled. He was a man of no ordinary character or influence upon those who were about Jiim. His natural fitness to control became habitual, as his wealth and standing increased, and it was exercised and involuntarily yielded to by all who associated, or who were in business with him. He was a man of high .qualities, but of .no rigor of virtue or self-control; — energetic., enterprising, courageous, .affectionate, and generous, but with a pride which had'.yielded ,tó no mortification until his affection subdued it .to a sense of justice in behalf of his child. As to Mrs. Clark’s subsequent connection.with Gardetté whilst she was the wife of Mr. Clark, considering it alone or with those reasons which
. But it is still said, admitting the marriage with Clark to have taken place in Philadelphia, that Mrs. Gaines cannot inherit from her father, his marriage with her mother being void, on account of. her previous marriage with. De Grange.
This will depend upon the marriage with De Grange having been a valid marriage. ■ Or upon its being void for one of those causes which disable persons from contracting marriage. The burden of proof in such a case is not upon the party asserting the validity of the second marriage, but on the other, who asserts its invalidity on account of the validity of the first. Both are affirmative declarations.
Ei incumbit probatio qui didt, non qui negat.
The argument is, the marriage with De Grange stands in the way of any right of Mrs. Gaines to in- ■ herit from her father, until the record of the conviction of De Grange for bigamy has been produced. We do not understand the law to be so. A bigamist may be proved so, in a civil suit, by any of those facts from which marriage may be inferred. Reputation of marriage is not. enough, but facts from which it .may be inferred are so. In a prosecution for the offence, there must be proof of an actual marriage. The confession of the bigamist will be sufficient in a civil suit, when made under circumstances which imply no objection to it as a confession. De Grange did make such a confession. Madame Benguerel says, in answer to the seventh interrogatory put to her, — “ My
But suppose Madame Benguerel had not given such testimony, or that her credit had been successfully assailed; what would then be the state, of the objection ? Just this: as all the other witnesses who speak of the prosecution of De Grange for bigamy speak of his conviction only as hearsay or common report, the defendant cannot call upon the plaintiff for record proof óf it, without placing himself in the inconsistent attitude of rejecting the hearsay to be proof- of its existence, but giving to him the right to call for its production. The testimony of Madame Benguerel was introduced by the plaintiffs. without any obligation upon them to have done so. It establishes the fact of De Grange’s previous marriage, for all the purposes of this controversy. The denial, in the answer of the defendant, that Mr. Clark was ever married, is the assertion of a fact, of which the defendant cannot, in the nature of things, have positive knowledge, and is therefore ho more than a declaration of his belief. One witnesá, therefore, overrules the' denial. But, there is no forcé in this objection for another reason. When; in the progress of a suit in equity, a question of pedigree arises, and there is proof enough, in the opinion of the court, to establish the marriage uf the ancestor, the presumption of law is, that a child, of the marriage-is legitimate, and it will be incumbent upon him who denies it to disprove it, though in doing so he may have to prove a negative.
..Further upon this point, the record of De Grange’s conviction cannot be called for, as there is proof that it could not be found in the proper office in New Orleans, where it should be. The complainants do not rely upon such proof to establish the f&et that De Grange was a married man when he married Zu
Before leaving this point, however, we will make a single remark upon what was said in the argument, that, if the record . of De Grange’s conviction had been produced, it would not have been competent testimony, from its being res inter alios apta.
The general rule certainly is, that a person cannot be affected, much less concluded, by any evidence, decree, or judgment, to which he was not actually, or in consideration of law, privy. But - the general rule has been departed from so far as that wherever reputation would be admissible evidence, there .a verdict between strangers, in a.former-action, is evidence also ; such as in cases of manorial rights, public rights of way, im- ' memorial custom, disputed boundary, and pedigrees. Duchess of Kingston’s case, 11 Howell, State Trials, 261; Davies, Demand., Lowndes, Tenant, 7 Scott, N. R. 141; Doe d. Bacon v. Brydges, 7 Scott, 333 ; Read v. Jackson, per Lawrence, J., 1 East, 355; Brisco v. Lomax, 8 Adol. & Ell. 198; Evans v. Rees, 10 Adol. & Ell. 151; Biddulph v. Ather, 2 Wel. 23; Tooker v. Duke of Beauford, 1 Burr. 146, as to manorial rights; Brisco v. Lomax, 8 Adol. & Ell. 198, as.to disputed boundary; Laybourn v. Crisp, 4 Mees. & Wels. 320, as to questions of immemorial custom ; Travers v. Challoner, Gwill, 1237, as to disputed modus and pedigree; Carr v. Heaton, Gwill, 1261. In Neal & Duke of Athol v. Wilding, Strange, 1157, -the court rejected a special verdict in a former suit, the defendants not having been parties to that suit, which was offered to "prove three of. the descents which were necessary to make out the Duke’s pedigree. Mr. Justice Wright differed from, the majority of the judges on that occasion, and in Buller’s N. P., 4th ed., p. 233, it is said that the opinion of that learned judge was generally approved, though the determination by the rest' of the court was contrary. And the point has been since repeatedly ruled in conformity with the opinion of Mr. Justice Wright.
But it may be said that the real fact was not what our conclusion is upon this point. Let it be remémbered by those who may say so, that possibilities are the enemies of-truth, in-, dicating more frequently than otherwise the unpreparedness of a mind to receive it, rather than its uncertainty. They have no standing in the law against a violent presumption, which is plena pfobatio, pi full proof.
Having disposed, of all the objections which were urged, or which can be. raised upon this record, against the most interesting and essential fact. in the case of the complainants, we
They were, that a‘suit at the instance of a forced heir cannot be maintained against a purchaser, until the donee’s property has been discussed.
It was said the decree was not final.
That the statute of limitations barred a recovery.
And last, that the decree directs the property for which the defendant is. sued to be • conveyed and surrendered to Mrs. Gaines, instead of making' it liable as a. portion of . Daniel Clark’s estate, out of which the forced heir’s Ugitime is to be calculated.
The first objection would prevail against the decree, if Mr. Patterson’s was such' a purchase. It is not so. -
The defendant is' the alienee of the purchasers who bought the property, at auction, in the year 1820, from the executors of Mir. Clark under the will of-1811. It is admitted that the property was a part of Mr. Clark’s estate when he died.
. These sales were made without any authority, judicial or otherwise. They were made after' the tinte when, by the law. of Louisiana, the relation of the sellers as executors had expired. Nor can it be said they were legal on account of the power of attorney given to Mr. Relf and Mr. Chew by Mrs. Clark, the mother and universal legatee of the testator. She could give no power to the executors to dispense with the law prescribing the manner for making the sale of .a succession. Her power of attorney was not of itself, nor was it treated by the executors', to make for her a legal acceptance of the succession. -It was neither an express nor a tacit acceptance of the succession, casting upon her the responsibilities resulting to a donee of a isuccession by its acceptance. It might have been used as an act done by her from which her intention to accept the succession might have been inferred, which would have been a legal acceptance. But it was not so treated. Until the acceptance was made as the law required it to .be, every act performed under it by the attorneys was void. *
The power, was also given when • the possession of the estate .was lawfully in the executor for the purpose of enabling them to discharge their functions according to law. ■ It could not invest them with any power, either when their connection with the estate as execu tors existed, or afterwards, to sell any part of it in a way not permitted by the law. >
One of the-executors, Mr. Relf, received letters testamentary on the 27th August, 1813. The other, Mr. Chew, on the 21st January, 1814. Without delay, on the same day that he received letters, Mr; Relf applied for leave to sell the movable
Under these decisions, and the view which we have taken <5f this point of the case, the fact of notice by the purchasers, and by the defendant from them, of the illegal- and fraudulent sale, cannot be denied. The defendant knew, from the titles which he received from the purchaser, Correjollas, and from that bought by him from the other alienee of Correjollas, that the sales had been made by Mr. Relf and Mr. Chew in a representative character, and • it was his duty to inquire if they legally filled it. Not having done so,-he has bought in his own wrong, and the title by which he claims the property must be annulled. We have confined our remarks strictly to the objection, that these sales were made by the donee, or universal heir of the will, without adducing other causes found in the proceedings of the executors, of which this record is but too fruitful, to show that the objection has no foundation in fact.
Of the statute of limitations we will only say, that the statute in force at the time the suit is brought determines the'
It is also said that the decree of the Circuit Court is not final,- in the sense contemplated by the law, to give to this court appellate jurisdiction. Indeed, we do not see how a decree could be more so. Nothing is left open between the parties; it embraces the pleadings as well as the proofs in the cause, and directs the property held by the defendant, as it is set forth in the pleadings, to be conveyed and surrendered to Mrs. Gaines. And it is only because the decree is subject to the objection, that the legitime of Mrs. Gaines in her father’s estate is to be calculated out of the whole of it, so as to ascertain and preserve distinct from the controversy the disposable quantum to which the donee is entitled under the will of 1811, that we shall direct it to be reversed.
Mrs. Gaines, as the forced heir of her father, is entitled to such a portion of his estate as he could not deprive her of, either by donations inter vivos or mortis causa. The will of 1811 is not null on account of its being a donation exceeding the quantum which the father could1 legally dispose of, but is only reducible to that quantum.
To determine the reduction to which the donation in the will of 1811 is liable, the 29th article of title 2d of donations inter vivos and mortis causa, ch. 3, sec. 2, of the code of 1808,- gives the rule. The disposable quantum in this instance would be one ‘fifth of the aggregate of the property of the decedent in Louisiana; the legitime- four fifths. Code of 1808, 212, tit. 22.
We shall direct the decree of the court below to be reversed, and adjudge that a decree shall be made in the said court, in this suit, declaring that a lawful marriage was contracted in Philadelphia,- Pennsylvania, between Daniel Clark and Zuline Carriere, and that Myra Clark, now Myra-Gaines, is the lawful and only child of that marriage. That the said Myra is the forced heir of her father, and is entitled to four fifths of his estate, after the excessive donation in the will of 1811 is reduced to the disposable quantum which the father could legally give to others.
That the property described in the answer of the defendant, Mr. Patterson, is a part of the estate of Daniel Clark at the time of his death, that it was illegally sold by those who had no right or. authority to. make a sale of it, that the titles given by them to the purchaser. and by the purchaser to the defendant, Mr. Patterson, including those given by the buyer
Order.
This appeal having been heard by this court, upon the transcript of the record from the Circuit Court of the United States for the Eastern District of Louisiana, and upon the arguments of counsel, as well. for. the appellant as for the appellees, this court, upon consideration of the premises, doth now here adjudge, order, and decree, that the decree of the said Circuit Court be and the same is hereby reversed, with costs, and that such other decree in the premises be passed as is hereinafter ordered and decreed.
And this court, thereupon proceeding to pass such decree in this cause as the said Circuit Court ought to' have passed, doth now here adjudge, order, and decree, that it be adjudged and declared, and is hereby adjudged and declared, upon the. evidence in this cause, that a lawful marriage was contracted and solemnized at Philadelphia,, in the State of Pennsylvania, between the same Daniel Clark, in the bill and proceedings mentioned, and the same Zuline or Zuliene Carriere, in the bill and proceedings mentioned; and that Myra Clark, now. Myra Clark Gaines, and one of the complainants in this cause, is the lawful and only issue of the said marriage, and was at the death of her said father, Daniel Clark, his only legitimate child and heir at law, and as such was exclusively invested with the character of his forced heir, and entitled to all the rights of such forced heir.
And this court doth further adjudge, order, and decree, that all the property described and claimed by the defendant .Patterson in his answer and supplemental answer, and in the exhibits thereto annexed, is part and parcel
6f
the property composing the succession of said Daniel Clark: that the defendants Richard Relfand Beverly Chew, at the time and times when, under the pretended authority of the testamentary executors of the said Daniel Clark, and the attorneys in fact of the said Mary Clark in the will and proceedings mentioned, they caused the property so described and claimed by the defendant Patterson to be set up and sold at - public auction, in December, 1820, and when they executed their act of sale, dated on the 18th February, 1821, *to Gabriel Corre
And the said, court doth further adjudge, order, and decree, that all the property claimed and held by the. defendant Patterson as aforesaid now remains, unaliened and undisposed of, as part and' parcel of the succession of the said Daniel Clark, notwithstanding such sales at auction and act of sale in the pretended right or under the pretended authority of the defendants Rélf and Chew.
And the court doth further adjudge, order, and decree, that the complainant, Myra Clark Gaines, is justly and lawfully entitled, as the only forced heir of said Daniel ■ Clark, to her legitimate .portion' of four fifths of the said succession, and ' to have four fifths of the property so claimed and held by the defendant Patterson, as aforesaid, duly partitioned, apportioned, and delivered or paid over to- her, together with four fifths of the yearly rents and profits accruing from the same, since the same came into the-said defendant’s possession; and for which the said defendant is.hereby adjudged, ordered, and decreed to account to the said, complainant.
And the court doth now here remand'this cause to the .said Circuit Court for such further proceeding as. may be proper and necessary to carry into effect the following directions; that ' is to say, —
1. To cause the said defendant Patterson forthwith to surrender, all, the property so claimed and held, by him as afore
2. To. cause four fifths of the property so claimed and helcl by the defendant Patterson as aforesaid to be duly partitioned, appropriated, and delivered or paid over, to the said complainant ; and to retain the residue subject to further directions for the appropriation of the same; whieh either party shall be at. liberty to move for; and if the same be proved and -found indivisible by its nature, or cannot be conveniently divided, to cause it to be sold by public auction, after the time of notice and advertisements, and as near as may be in the manner prescribed by law in the judicial sale of the property of successions : and, in case of such sale by auction, to apportion and pay over four' fifths of the net proceeds of such sale to the said. complainant, and to retain the residue subject to further directions, as aforesaid.
3; To cause -an account, to be taken by the proper officer of the court, and under the authority and .direction of the court, of the yearly rents and profits accrued and accruing from the said property since it came into the possession of the defendant Patterson; and four fifths of the same to be accounted and paid to the. said complainant, and the residue to be retained subject to such further directions as aforesaid.
4. To give such directions' and make such orders, from time to time, as may be proper and-necessary for carrying into effect the foregoing directions, and for enforcing the due observance of the same by the parties and the officers of the court.