The New Orleans daily Democrat. [volume], April 18, 1877, Image 2

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IMtPORTANT DEISION.
Mrs., 1jialnes in Victorious All Alor .Ilr
Inrla-Mny Bona Fide Property
Holders Thereby Broristi
To (rlef.
o. 8088-Joseph Fuentes et als. vy. Mrs. Myra
Clark Gaines. No. 2783--Myra Clark Gaines
vs M. J. iAzardi et asl. No. 8063-Myra
Clark Gaines vs P. II. Mousseaux et ale.
No. 400t-Myra Clark Gaines vs. D. Cronan
et als. No. 4081--Myra Clark Gaines vs. N.
Lonque eo ali. No. 6085-Myra Clark Gaines
vs. P. F. Agnilly et ahl. No. 5048-Myra
Clark G.ine vs. L. F. Compton et asl. No.
4010-Myra Clark Gaines vs. F. A. Brown et
ale. No 5099-Myra Clark Gaines vs. A.
Berman st ala.
These oames were all before me, the numerous
stlta for the recovery of real estate in which Mrs.
*n seemks to charge the respective defendants
na trustees, and for a discovery, and the case In
which Fuentes et al. ask for the revocation of the
probate of the alleged will of Daniel Olark, known
am the will of 1818.
The. e cases have been heard, are submitted,
and are to be decided together by agreement of
the parties. The full argument of counsel occu
glegd seventeen entire days and an examination
ofrthe records have satisfied me that the various
dcolsions rendered by the Suapreme Court of the
Ut..atd States have concluded me upon very
many of the questions of law which have been
presented. I shall Arst consider the suit for the
revocation of the probate of the will.
The Supreme Court of the United states in
their opinion pronounced in this case, 2d of Otto,
p, 17, in order to determine whether it wa, re
movable from the State to the United States
Courtt ha defined its naturoe and has character.
it as follows: "The action cannot be
as properly instituted for the revoca
Uon of the probate, but must be treated
as brought against the devisee by strangers
to the estate to annul the will as a muni
meat of title and to restrain the enforce
ment of the decree by which its validity was ee
tablished, so far as it affesot their property."
It il a snit which was instituted as an adjunct
and mans of defense to the numerous other
malts for the recover of real estate in which the
eomplainant rested her title upon a will, the sub
tanltial allegation being that the will was admit
ted to probate upon Islse and nsufficient testi
maony. It has now been cumulated with these
other actions. It is, therefore, to be viewed and
tried as if it were a pleading in these other sc
tions, presenting the issue derlsalit vlt non.. It
presents the broad question, was there a will on
isttered by the restrictions of the Code relating
to actions to annul the probate of wills? Before
eonadering the cause upon the merits, I will dis
ose of the plea of proscription of five years.
The(Oivil Oode, art. 8510 (3505). provides as fol
lows: "That actions for the nulliy, or rescission
of contracte, testaments or other acts are pre
slribed by five years."
I think this article refers to actions brought
against parties who are in possession under a will
and that it has no application to a will invoked, as
here by a party out of possession as a muolment
of ttle against those in possession not claiming
mader the same will, and that whenever by and
against such parties a will is relied upo, to
establish a link in the chain of title it may be
attacked. I think, therefore, the plea should be
ovearuled.
The other exception, vii: that the plaintiffs
(omplainants) Fuentes, et al., could not main.
tain their actions, as strangers to the estate of
Ianiel Olark, is disposed of by the fact that in the
supplemental petition they claimed to have de
rsivd title from Relf and Chew, executors, or as
attorneys in fact of Mary COmrk, universal lera
u noder the will of Daniel Clark, known as the
ill of 1811; and by the further fact that the con
sideration of this case with the others renders
the petition or bill of complaint in this action in
loet a plea interposed in the others, which
m be termed direct actions.
brings me to the question, was there, so
ialng to the evidence presented before me, a
will? Has the will of 1813 been established be
*re me as an instrument executed by Daniel
aLrk. and clothed with the requisite formalities
of a last will and testament according to the
laws of Louisiana ? It is urged by the complain
alte. luetest al.: 1. That the prooes verbal
which entitles this will to be received as a pro
bated will, is wanting. 2. That the will as pro
bated is not shown to have been dated,
and thus, does not, in that respect, com
ply with the requirements of the law in
respect to olographio wills. 3. That
the evidence disproves, or fails to prove, that
such a will ever existed; and fourth, that if such
a will was ever executed, since it was not found
ater the death of the testator, the presumption
of law is, that it was destroyed by the testator
aniTmo cancellani, and that this presumption
has not been rebutted by the proofs.
First, as to the absepoe of the proces verbal.
tileles 912 and 943, C. P. give the teotual pro
risions of the law as to what the proces verbal
shall contatu ; but it is clear they cannot, with the
exception "f that provision which relates to the
order for executing and recording the will, apply
to wills, which, as in this case, are lost.
The reasoning of the Supreme Court of Louis
iana an I their decree in which they order the re
cordiug and t xi cution of this identical will with
out any such process verbal, and when in the
nature of things no such recital as is pointed out
Ii the r. quiremeuts of the Code of t ractice be
lre referred to could exist, is an athoritative de
.iato n ,~ the law of Louisiana on his point.
cemgaton of Clark, 11 Annual, pages 124, 131.)
Judg, .. a, sitting as a Probate Judge, while
flnding the pruote qu.fieient to establish the will,
decreed against its being admitted to probate on
the ground that the proof was not, inmanner and
form, such as the statute required. There was,
therefore no probate of the will in the lower
.art, bat ioappeal the Bapreme Court reversed
be reer and ordered t i executed. What
the did in that ease is a paot oonatrvoetton o,
the law upon the point al to how a on t will may
be probated, and of its admlseIblity when so
TL. eees d obrojeOat "31a the will is not
ire bgtybq *t ed drMie U"
trely written, dated and signed by the hand of
the testator." on this point of date the testi
mony adduced before me is precisely the same as
that brLfore the Supreme Uort of Lionisman at
the time tie will was probated. They found it
sufficient, that is. they must have found that the
will was dated; that the year, month and day
were written by the testator.
Again, the two witnesses who read the will
were Mrs. Bmythe and Mr. Belleo asee. Mrs.
ISmythe, at page 141, Probate Record, in answer
to the 26,h interrogatorY, says: "'he whole of
bhis will was in Mr. Clarke's handwriting; it was
dated and signed by Mr. Clarke at the time I
read it." At page 143, in answer to the 32d inter
rogatory, she sae: "It was dated in July. 1813."
rlellechasse, at page 162, Probate Record, says
In answer to interrogatory 13:
'The last will of Clark, tb wit, the will of 1813,
was legal in form because it was written wholly
in his (Clark's) handwriting, and was dated and
signed biy htn." These witnesses both testify
that the will was dated. and one of them adds,
"it was dated in July, 1813." The fair meaning
of their language is that it bore the year,
month and day: and the meaning of the lan.
gusge of Mrs. Hmvthe is that it bore date on a
particular day of July, Anno Dimini 1813.
If a jury had founl as aspecial verdict that the
will Ib ire date on same day in July, 1813, though
they did not specify what day, so long as being in
July left it the last will of Clark, would not a
court be bound to give judgment that the will
wns dated ? And the testimony of these two wit
nesses, uncontraditoed, is on this point equiva
lent to a special verdict. It is proven that the
will bore date on some one of the lays in July,
1813, and this is sufficient.
The third objecti n, that the evilence dis
proves, or falls to prove that this will ever or
inted; ail fourth, that if it was ever executed,
since it was not found after the death oif the
testator, the presumption of law is that it was
destroyed by him for the purpose of cancelling,
aind thet this presumption has not been rebutted.
The testimony which has been read before tue
is in 4lmost all respects identical with that ad
duced baeore the Supreme Court of Louisiana
(11 An. 125, 126, 127), and is there stated with
clearness and fairness by Judge Lea and by the
Supreme Court, as follows:
"In looking for the testimony which might.
solve the question whether such a will had ever
been executed or not, a roesonable inquirer would
naturally turn for information to those who were
most with the deceased in the latter part of his
life, and especially (if they could be found) to
those who were with him in the last moments of
his existeonce, when the hand of death was on
him. buich witnesses, if they had no interest in
d verting his property into any particular chan
nels, might be considered as the best and most
reliable that could be produced, and it appears to
be precisely testimony of this character that the
peiitioner presents in support of her application.
It appears that Bolsfonuaine had business rela
lions with the deceased, which brought him into
frequent intercourse with him, and that for the
last two days of his life and up to the moment of
his dleath, he was with him; that De Ia Croix and
Belleihaese were intimate personal friends and
that they were with him shortly before his death.
Now these witnesses all concur in stating that
Clark said he had executed a will posterior to
that of 1811. They also testify that within a few
months prior to his death he was making arrange
mnents for the disposal of his property by a last
will. He called on De Ia Croix to get his consent
to act as executor and also as tutor to his daugh
ier Myra, expressing his intention of making a
generous provision for her in his will. De Ia
Croix further states that Clark afterwards pro
sented to him in his (Clark's) cabinet a sealed
packet which he declared to be his last will, in
forming him at the same time that in case of his
(eath it would be found in a small black trunk
which he had there.
Dolsfoutaine, who was with Clark when he
died, says that Clark, in his last illness, spoke of
executing his last will ; said it was to be found
in a room down stairs, in a small black trunk;
that he had left the greater portion of his prop.
erty Slshis child, Myra; that Bellechasse, De isa
Crolx and Pitot were to be his executors; and
that about two hours before be died he instructed
his confidential servant, Lubin, that in case of
his death the small black trunk above referred
to was to be delivered to De Ia Croix, and en
joined on him as soon as he (Clark) was dead, to
be sure and take it to him. lie states that
Clark expressed his satisfaction that he had pro
vided for his daughter Ilyrs, leaving her all his
estate, and that De Ia Croix bad consented to act
as her tutor. He also states that he was present
about fifteen days before Clark's death, when
Clark took from the small black case a sealed
p.ckage and presented it to De la Croix, stating
that it was his last will, recapitulating some of
its provisions, and reminding him of his promise
to act as tutor to his daughter. He further states
that several persons, shortly before Clark's death,
had seen the will, and corroborated Clark's
statement as to its contents, and that Judge
Pltot, Lynd, the notary, the wife of William Har
per and Belleohasse were among the persons
refirred to. "Now" the Judge -i quo proceeds,
" I think there can be no doubt, setting aside the
testimony of Bellechasse and Mrs. Wm. Harper,
that Clark did execute a will shortly before his
death; that the principal object of making this
will was to recognize as his daughter the present
applicant and to make suitable provision for
her; that the executors of this will were Pitot,
elleobhase and De Ia Croix, and that Do la Croix
was apoointed tutor of his daughter Myra ; that
this will must have been in existence until within
a very short time previous to Clark's death, if
not after that event, and that Clark himself died
believing it was in existence.
" That such was the opinion of De Ia Croix him
self at the time, is evident from the fact that
twenty-four hours had scarcely elapsed after the
probate of the will of 1811, before he made oath
that he verily believed that Ilaniel Clark hail
made a testament posterior to that of 1811, that
Its existence was known to several persons, and
he accordingly applied for and obtained an order
of the court commanding every notary in the city
to declare whether such document had been de
posited with him.
it the rorTgoUig Iraci y is ounruwesu MS
proved, independent of the testimony of Belle
chasse and Mrs. Wmn. Harper, the additional
testimony of these last named witnesses with
reference to the form of the execution of the will
and its contents will rest upon a basis of proba
blilty, which must strengthen if it does not
anticipate the conviction of its truth, for it is to
be remembered that Clark knew how to draw an
olographic will in due form, having already done
so in the execution of a previous will, and know
in what was necessary to its validity It would be
improbable in the extreme that he would omit
any of the few necessary formalities.
When Belleohasse and Mrs. Harper, there
fare, testify directly to the execution of the
will as having been written, dated and signed
in the proper handwriting of the testator, they
testify to the existence of facts which are, at
least, probable, and, upon the assumption that
the will was executed, are matters approaching
to certainty independent of their testimony; so
with regard to the appointment of executors, of
the titor, and of the general dispositions of the
will as described in the petition.
They state Clark did what he told others he
intended to do, and what, from the whole tenor
of his conduct, it was very probable he would do.
It does not appear,however,that all the contents
of the will as sworn to by Mrs. William Harper
are;slso sworn to by Bellechassee, and though the
testimony of the latter does not contradict that
of the former, but confirms it, yet his testimony
does not relate to any portions of the will, except
such as relate to its form, the institution of his
daughter as universal legatee, and the appoint
ment of De Is Croix, Pitot and Bellechaebse as exe
cutors. Indeed, the examination of witnesses
does not appear to have been conducted with
any reference to a detailed description of the
will.
They, however, both state distinctlythat they
read the will; that it was wholly written, dated
and signed by Clark; that he thereby instituted
Myra Clark, his daughter, his universal legatee,
and appointed De Ia Croix, Pilot and Bellechasse
his executors. From an examination of the whole
testimony, and considering the conduct of the
deceased, his repeated deolarations up to the
very day of his death, together with Lie anxiety
po make ample provision for his daaghter, the
Judte of the lower court adds: "I feel satisfied
bhatthe legal presumption (which in the case of
a lost will would necessarily exist) that it was
destroyed or revoked by the teatater, must
be considered as satisfactorily rebutted."
In addition to the statement of facts and con
clusions in regard to them of the judre of the
lower court, it may be remarked that De 1º Croix
states that the endorsement upon the will which
h( saw sealed no were in these words : "Pour etre
ouvert en cas de mort." This endorsement does
not appear upon the till of 1811, and the will
which he saw was doubtless the will of 1813.
The chief testimony offered by the complain
ant in addition to that which is there cifered, is
the testimony of Masurean's probate record.
page 43J, and the answers of Belf and Chew.
Mamureau's letter cannot, in my opinion, be re
ceived as evidence. It is simply a statement in
writing of a person not a pary to, or a witness in
these eauses or in any sad not under caib.
saxd knowa asa_ E
Chew are an emphalo denial, but they do no1
outweogh the force of the direct and ciroumatano
tial evidence in favor of the execution of this
will. In this connection I will consider the tee
timony of Mr. Brown, which is urged to invali
date that of Mrs. Smythe, and the let'er of
Bellechassee to Mr. Cox, as tending tk
show uncertainty In his recollectiot
of the terms of the will. Mr. Browr
testifies that Mrs. Lmythe visited in hit
family the summer after Mr. Clark's death; thai
she spoke often and mist particularly about his
death and estate, and never referred to the will
of 1818. If these statements are to considered
as properly in evidence they are to be consid
ered as urged against the witness, to whose atten
tion they were never called, and who, therefore,
never had an opportunity to explain, or by other
testimony rebut them. Mrs. Smythe was tvi
dently attached to Myra, now Mrs. Gaines, whom
she had suck!ed, and may have considered that
there was no good then to be derived by her in
speaking of the will; or, what is equally possible,
she may have made reference to it which was not
understood or was forgotten by Mr. Brown. A
number of witnesses attest her entire respecta
bility and credibility, and taking Brown's testi
inony in the most favorable light, it does not ne
cessarily oontra-iot and cannot avail to materially
weaken the teetieony of a disinterested witness,
clearly intelligent, and proved by numerous wit
nesses to be trustworthy.
As to the letter of Bellechasse to Mr. Cox, Pro
bate Record, page 855, Vol. 1, he is recorded as
saying: "I was one of his i xecutors, as well as
Messrs. Relf, De Ia Cro(ix and Pitot." Thus ad
ding Relf in addition to the executors who hie
andl Mrs. Smythe say were named in the last will.
But in the next sentence, with reference to his
avowal of having received a conveyance of fifty
one lots in secret trust fhr Myra. now Mrs.
Gaines, he uses the same names and in the same
order. This all appears as a trans ation, the
French original having mysteriously disappeared.
Now it is quite possible that either in writing out
the translation of the letter the copyist may have
fallen into the error of using all the three names in
b ith collocations, though in the first, that of lteif
might not have stood in the original, or in the
original letter; if, as Bellechasse states, lie wrote
through an amanuensis and by dictation, the
name of lelfmay have by mistake slipped in in
one of the collocatious, although the writ, r never
designed it to be there, and never observed that
it was there.
Now as to Bellechasee, with the exception of
this letter to Cox, there is nothing in the r.-cord
to impugn or qualify what he says; his laengiage
and ideas through, ut are those of an car npost,
chivalrous man, who is entirely sincere. There
is a further fact, that upon the death of Cila k he
avowed that the fifty-one lots of ground had beien
placed in his name in secret trust for COlalk's
daughter, now Mrs. Gaines. It seems to me that
he appears not only as an unimpeached, but as a
thoroughly upright witness, and I have nevei
read testimony which has impressed me as utter
ing more frankly the truths.
I think then that the testimony of Mrs. Smythe
and that of Bellechasse is unshaken, and they es
tablish the will. But they are not alone. De Ia
Croix himself was a witness in favor of the sec
ond will, though subsequently he sought to vary
his testimony. On page 78 of the probate record,
he says: "Olark, some months previous to his
death, asked me to become titer to Mire;" that
a month or two after this conversation he, depo
nent, called to see Clark, who had his house on
the Bayou Road; lie found him in his cabinet and
had just sealed up a packet, the suprecrription
on which was as follows: "',Pat e,,ls ounert en P.oe
dtie nnti:" that Clark threw it down in presenoo of
deponent and told him that it contained his last
will and other papers whtih would be of service.
It is to be observed, as the Supreme Court of
Louisiana noticed, this superscription efftetually
proves that this envelope must have contained a
will other thab that of the will of 1811. The tee.
timony of Boisfontaine, at page 79of the probate
record, states that Clark, in his last illness, spoke
to him about his last will and testament, and told
deponent that he had left the greater part of his
property to his child, Myra, and that he had
made a disposition in his last will to that effect.
He says Clark always told him (deponent) that
Myra was his daughter; that he loved her, and
would leave her all that he could as a father. It
is to be observed that Bellechasse's testimony,
at page 162 of the probate record, in reply to
the 12th cross interrogatory, states that Judge
Pitot, the judge of the Court of Probates,
at New Orleans, examinetlithe will after it was
finished. Mrs. Marian Rose Daviy, at page 167
of the probate ieoord, In answer to tLe 1tlh
Interrogatory, sagye: "When we were about
to depart from Louisiana, in 1812, Mr. Clark
said that she, Myra, would be his heir; that he
intended to leave his estate to her. He spoke in
terms of great affection and pecuniary ambition
about her, and again said that he should leave
her all his estate; his ambition was st eulated
to make her very rich." Again, in answer to the
21st interrogatory, "he spoke of her as his
heir, and in speaking of her education said he
wished her educated in a manner suitably to take
in society the standing of the heir to his estate."
Samuel B. Davis, page 172, in answer to the
twelfth interrogatory, says: "Mr. Clark always
did manifest the warmest affection and deepest
interest towards his daughter he has repeatedly
told me that he intendl d to leave her his prop
erty, and I never doubted that he was entirely
sincere." To the eighteenth interrogatory, on
the same page, he says: "I heard him
(Clark) on all occasions express himself in favor
of her (Mrs. Gaines) as his daughter and heir;
it was an every day conversation when we
met." In answer to the twenty-first interroga.
tory, at page 173, he says: "It was impossiblo
for any lather to have manifested more solici
tude and affection than he did. In my last inter
view with Mr. Clark his conversation turned al
most exclusively on the subject of his child; it
was then that I received the instructions relative
to her education, about which he seemed to be
very solieitus,, and about the place he wished
her to take in society when she arrived at the
years of maturity."
Wm. Miller, at page 179 of thie Probate Record,
says, in answer to the twelfth, thirteenth and
fourteenth points: "that Clark frequently ex
pIress( d much affection for the said child Myra,
and stated that he intenled to make ample pro
vision for her as one of his heirs."
If human testimony can establish a fact, it is
here proved by overwhelming testimony that it
was the settled purpose of Clark to make Myra
his heir by his last will; that for some reason,
probably that stated by the Sau reme Court in the
21th of Howard and 6th of Wallace, he did not
during his li:etime wish publicly to acknowledge
her as his child, or admit the marriage with her
mother, but that to all his friends he admitted
that she was to be his heir. Now, can any rea
son be suggested why Daniel Clark, when the
shadows of death gathered round him, should
have changed his purpose to have done this late
justice to a daughter to whom he was
so devotedly attached, and from whom
he had withheld the enjoyment of the rights to
which, as his child, she was entitled? It seems
to me not. It seems to me that as his years ad
vanced his attachment to his child and his pur
pose to provide for her by his last will, as was
natural, continued to increase. Now, when we
add to this the clear and undisputed testimony of
Mr. Smythe and Bellechasso as to the terms of
this will, that it was a will made in Myra's inter
est, and precisely such a one as a father, with the
settled purpose, which theother witnesses testify
he avowed to them with reference to her, would
have made, we have here conclusive tes
timony not only of his purpose to make
this will, but that he did make it. And this testi
mony is drawn from precisely the sources where
we would have supposed that it would be found
to exist, viz., from the intimate friends of the
testator.
I think if human testimony can establish this
will, it is found in this record, and that an olo
graphic will, such as is claimed to have existed
by Mrs. Gaines, was made, written, signed and
dated by her father, Daniel Clark. This brings
me to the last question of fact with reference
to the will.
The will not being found after his death, is the
presumption of law overcome by the evidence in
this case? Is it proved that the wih existed up
to and after the death of Clark? It does not seem
to me to be necessary to conclude that Self de
etro)edit. Clark may have deposited it with
some person who never produced it. What does
the evidence show as to the continuance of its
existence up to the time of his death? The mind
of any one familiar with the evid nec,
ii this case, it being established by ir
refragable testimony that he had made
the will of 1813, won d be reluctantto believe that
a father who had by a last wail given all hia
property to an only daughter, who trom tile rea
son probably that the acknowledgement of the
marriage with her mother would hwva inter
fered with his personal ambition, had during his
lifetime witwheld such acknowledgement from
the public; had in fact lived a twofold life, one
part of which was necessarily incons:stent with
the other, but who had centred upon this daugh
ter all the affection which a father is capable of
feeling I say the mind of any one won.dreluct
antly receive the coviealon that he, without
any change in his ciroumstancea, and
wtsout amy reason d or assignable,
inn 40aýTta smpii.
the pr ,vision which he nad made for her through
Belleohasse? I do not say that the presumption
trising from these central facts in Clarks life
would in law be sufficlentto show that the will
of 1813 survived him; but I do say they prepare
the mind to find in the record the testimony
which will establish that fact, such testimony
found in the statement of loisfontaine. Bois
fontaine, at pages 79 and 80, says that he was
with Clark during the last two days of his life
he never left i bedside, and that during
his last hours he spoke of this will and
of the gratifictlon it gave him that by means of
it he had provided for his daughter. What more
natural than this? What more credible? And it
is testified to by a witness who is nneontradicted,
excepting by a tcircumstance which has been at
tempted to be drawn fromt the testimony of De Is
Croix. De Is Croix was made the tutor of Myra
in the will of 1813, as well asone of the exet utors.
De Ia Croix, in his testimony in the case known
as No. 122, at page 531, states in substance, that
the day beforer Clark's death he called to bia
h ,use and had an interview with him; that noth
ing was said about the will of 1113.
'The srgunrent has been pressed with great
force by the solicitor for Fuientes et sia., that if
Clark then had the will he wotuld have dlivv red
it to De is Croix, and I am asked to Infer fromt
the silence of Clark in this interview on the suAn.
jeot of the will, that it had ceased to exist. The
onltnelsive answer t t that argument is that what
ever that interview was, it had not, in De Ia
Croix's mi ld, destroyed, or at all sbaken his bt.
liof that Clark had left the will of 1813 in exist
ntce at the time of his death, for at page 11 of
the probate secord, be presented to the Judge of
'robate a peotation sworn to by hitm, in which he
stated that he had strong reasons to
believe, and did verily believe, that
thete was a subsequent will doi
to that of 1811, whose existence was well known
by several persons and asked that the nrotaries
of New Orleans be stn)preaed to see if they
could not produce the dntllicate of this last will
-that is, the will of 1813. It is clear from this
aflirlavit, made witi in a day or two, or a few dlays.
after the death of Claik, that Lie la Croix not
only believed that the will ,r 1813 survived
Clark, but that it was executed in uiplicate, antd
the clar implietion is that he bieli'ved that one
of these duplicate copies had been destroyed
after the death rof Clark. It lurtlhcr appears
from this allidavit of lie la Criix that he was
eaxpressing not only his belief, but the belief of
the frienld of Clark.
Now I think the conclusion of the Hopremts
Court of the Uniterd hiates inl the case of (taintws
vs. De Ia Croix, as to the ( feot which should to
given to this staternenPt of Ilip, is unanswerable.
I think his snbsetltuet testimony given in 1819,
after a controversy haid arisen between him antd
Mrs. (tain' ss,goes f *r nothing as orntrasted with
lis own allilavit mad min 1813, and so far fromt
the statements of Do la Croix cntradicting it ie
fontaine, they are a it neundoua
confirmation of his evidence iupon this
ioint, and go far to establish not ,tonly Ihat he bi,
loveil that the will of 1813 existed after the death
or Clark, but that he I.tli ved it upon eufllcie.t.
evidence. I think, therifitre, that tihe presump
tion which under the law of Louisana ariese
from the non producriiin of the will of 1813, and
its dislpparance, is most satisfactotily made ly
the evidrnl e in ltis case, snd that it is proved
that the will known as the will of 1813 was in
existentce after the dlath of the testator.
I therefore fird as a fact, that an oingraphio
will i'f Daniel Clark, in which Mrs. Gaines was
recognized as his legitimati, child, and with the
exception of Ihe legacy to his mrnther, and sme
other small legacies, was made his universal lega
toe, was written, signed and dated by him; that
tLi will was clothe 1 with the requisite and legal
formalities of a last will and testament according
to the laws of Louisiana.
Let the decree, therefore, 0e, teat toe prayer or
the petitioneers in the case of Fuentes ot al.,
etc., against Mrs. Myra Olark Gaines, be rejected.
I now come to a decision upon what may he
termed the rirect actions, viz: the suits in whione
Mrs. Gaines seeks to charge these numerous de
feonants as trustees, and to recover from them
certain real estate, alleging that she was the
legitimate child of Daniel lark, and under his
last will and testament his universal legatee. I
have found as a fact, upon a fresh conside ation
of all the evi lence, that her allegations as to the
will and her heirship are established. This find
ing carries with it all the consequences which are
ncessary to establish her title to the property,
and leaves nothing remaining to be considered
but the plea of prescription.
The plea of the respondents is to the fferct
that they derived their title and have poassessed
the property In good faith, and that this posses
sion has continued for longer than a period of ten
years. They have thus sought todissever the r
title from its origin, and have sought to stand be
fore the court simply as possessors with whit
they say seemed a good title, and therefore they
are possessors in good aith. It is claimed by
the solicitor of the etmnplaiuant, and by lis ar
alysis of the rsiains of title u!nder which the seve
ral defendants hold it, is shown that the title of
each and every one of them comes back, or
traces itae f back to the estate of Daniel Clark
through telf and Chew as the executors
of the first will, and as the attorneys in fact f
Mary Clark, legatee, under the first will. Indeed,
in the supplemental petition of Fuentes et al..
which has been adopted by all these defendan's
under the agreement on file, they allege at page
48 of the Fuentes case, 160 and 1t1 of the margi
nal paging "that the sa ItH. lelf and B. Chlew
were the testementary executors of the said I).
Clark under the will of 1811, and were also the
agents mnd attorneys in fact of Mary Clark.
mother and sole tetameontaryl and legal heir of
the said D. Clark, and as sech were the parties
through whom tiiese petitioners der.ved title to
th i property now claimed biy the said defendant."
It is not necessary for aeO to comment upon
the ( feet of this juticial admicsiol further than
to say that it, is a distiiect avowal that they cairm
under Itelf anad U( ow an the executors and attor
tneys in fact under the first will, and this le'aves
them in the situation of having denied what thi y
were legally bound to know. Boe G(aines vs.
Htennce, 21 flow. 615, 6;1t; Gaines vs. Meun-sc:ax,
1 Woods, 120. And what they adluit in the
Fuoentes case they did know.
'l'These cases are undisti giigl btih e in principle
from that of (laines vs. Ilennon. That is both
proved and avowed in this case, which was ad
mitted there, via: that the title was deirlved
from Belt and Chew by the sales under the first
w:ll. nuch a titles the Supreme Court of the
(United Stales, in the case of Gaines vs. loennen,
24th of Howard, decided was an illegal and vicinnous
title, and that the vice of the title took from the
vendees all pretense of Ilurchasers or possessors
in good faith.
In that case the Supreme Court took pains to
put into their decree, after reciting th, convey
ance from Belt and Chew through these interme
diate grantees andj the conveyance to IHFnnen;
that the defendant Hennen at the time when he
purchased the property so described and claimed
by him as aforesaid, was bound to take notice of
the circumstances which rendered the acts and
doings of the said Relf and Chew'in the premises
illegal, null and void; that the said IIennen
ought to be deemed and held, and is hereby
deemed and held, to have purchased the prop
erty in question with full notice," etc.
Tois view is adhered to in Gaines vs. New Or
leans, 6 Wall, p. -, pp. 716, 717, where the court
declare that the question is no longer an open
one.
The evidence here on both sides as to the mi
nority and the interruptions of prescription is
precisely what it was in the case last referred to.
Indeed, it is all taken fronm the record in that
case, and I think the Supreme Court of the United
States have settled in the most solemn and au
thoritative manner that this plea cannot be urged
by these defendants.
Let there be judgment, therefore, for the com
plainant.
COTTON SEED MEAL.
Pure and Freshly Ground Meal, of QUB OWN
manufacture, for sale by
CRESCENT CITY OIL COMPANY.
apt lm 21 Unton sreent.
NEW ORLEANS LAGER BEER.
CASPAR LUSSE,
Nos. 476 and 478 Chartrea Street,
Announces to the prorietors of BEER
SALOONS, antl to t11h public: that having to m
t,lete.d his immense auparatus for maiufac
turing LAGER BEER,
He is preparod to sell the same AT A LOWER
PRICE than auy other HOME-MADE AIITI
CLE, and of ai- good qpality ias any sirniar arti
cle produeod in th- United Stats. mh27 em
DENTISTRY.
J. B. WALKER, D. D.'S.,
No. 18a5 e1ad rStreet,
Latest Improvements and beet styles of both
R. M. & B. J. MONTGOMERY:S
Furniture Emporium,
ARMORY HALL, 87 CAMP STREET.
-0
The Largest and Most Centrally Located Furniture
Establishment in the City.
-0----
Constantly on hand, and at tho LOWEST MARKET PRIOEB. the largept and beet seleotet
assortment of
PARLOR G*OODS
To ho found In the South, coneslsting of
Suits Upholsw red ic Irocatel, Cotoline, Reps, Terry and Hair Cloth,
atnd Finished in 011i.
MARBLE T' )P INLAID CARD) and FANOY TA.
JELE; French PLATE MIRIU)R .- and Patent lag7
CIIAII8; line BEDIROOM BUl'", with French Plus
serrrnr, I'resrlr (iiis en" IrrnIre; ma aiftelA
Slu nch Plate lIALL R HTANI)DI, wvth HALLJJ'r i
to match; DINING-ROOM and ALIBA2Y SUITI d
every grade.
SA orn ilaee assor lmnt of MEDITIUMand 0011O0
FURNITURE, of every grad', asitable f oouaR
and plantation n"9.
A large stock of boxed and knoci, down Purni.g.
ind Chairs.
WPRING, HAIR and MORN MATTIUgtgS 13=
Sanrl FEATHER PILi (WR8 and DOL.1T JiB, a
LOUNGES, made to ordenr.
ALL OF OUR (OOl54 AtRE FROM THE: I'EST FA(TOI1rEN. BOTH EA1S
AND WEST, AN I OUt PRICES ARE THE LOWEST I:; THE CIT'.
Al! (o.nodel onek"d nii, thlit' d fro ,, orf 'thart',. Thainking ,our ry Ini and the pub. e
for th'lr tm-it pat ronnrua. ,. r-olilit a crontinuannii of tho Pnmeo li IIhI tturin.
R. M1. &. B. J. MOMNTGOMEI.',
Armory Hall. No. 87 Camp Street, Ncw Orleans.
tnh3 If
'NOlI NHIIISI0dI
One Whole Set of Irons in One.
ONE IRON, WITH TWO PLUGO, WILL DO
ALL THIE IRONING AND FLUTING
ONE HIAND CAN DO WITH ANY
NUMBER OF IRONS.
It is a Nikel-plated roan Iron. with a wooden
hand plae. hnato'l and continually
kept hot bIy two alst-iron plugs.
ITM ADVANTAGES.
r frst
Savee onn
half or
more of the
fNOl ordll
narily used
in Ironling.
R"econd
ýRav. three
fourths of
the walk
I ýhanging
1 - of the old
Sflat fron
I, It -. In Iron
propes.
S Third-
Can be heated with oithor coal or wood fire
stoves or grates.
Fourth--We use Pll stes of the iron and utl
Irwo all the heat, thus gaining one-half on the old
proress.
Fifth-Always clenn; never ruslting, never
being ox osed to soot.
Sixtht-One single I.eat will iron from thirty
mInutes to one hour. according to weight and
moisture of the goodls.
Seventh --Tho flire yon cook with can be used
for ironing, even while tIhe stove i covered
with vessels, thus saving the entire amount of
fuel used ordinarily in ironing.
EIgkth
Dooes better
work. im
parts more
I moothnoss
and gloss
If .rom the
inkled Aro
than any other Iron in the world.
Ninth-Haves time, fiol and labor thus sahs.
money; is the only prntlI P'atent Iron on the
man rket. nnd will eventually take the placo of
the old one-facod irons.
J. M. 3BRAU , Sole Agent,
202 Canal otreet.
mh24 im
BENEFICIAIi
TO
THE PUBLIC.
We. the nndersigned Photogra, hers In the
Uniltd tratne dto state and will boar tostimony
that PIOTUIt$8 made by
LAM1B;ERT'S PATEN PROCESSES
are bound to fade and biome worthless.
NARONY ................ ....New York.
W. KUB'TZ .................New York.
LEON VAN LOO ...... ......Clinclaa L
J. LANDY.. ................... nclenaatl.
F. GUTI KUNMT..........Philadelphia.
ALLEN & ROWELL............Bloot. .
C. OENTILE & CO............ hicagoe.
C. W. MOTES .............Atlanta, Ga.
E. KL U ER ...... ..........1 looivllle.
RUI.OeNON, President of the Photo
graphic Association of the United States
of America........ an Frameteo, U-I.
D. H. ANDERIN ......Richmond, Va.
TliEO. LILIaNTHAL,
Mtate of LI,.lslIas.
And others, too numerous to mention.
THEO. LILIENTHIAL,
1C1............. CANAL STREET ...........121
ft1 3m
Southern Shoe Factory
OF JOh IIANSEN,
$3 and St Canal street, New Orleans.
TO ALL SOUTHERN CITIZENR.
I am of the same opinion as yohrselves and
am determined to help build up the manufac
turIng interest of our native State in order to
help the laboring classes aolnd keep the money,
whiob would otherwise go to the North, at home.
About a year ago I started my Factory, and by
using the best material and paying my hanad
Dromptly. I have been enabled to extend myV
business and support 00 women and chlidreD
that would have otherwise left the Btae. I
order still to increase my Ftory, I would
bnenes ad aoort#w woenandc~r0
IHKAT JACH 'on ..
NEW ORLEANE A ; 'J)UIAO0
DOUI1LE DAILY T'll ; i TRAINS,
will -It ,Lra1 if, ,i' r F,, ,. ,i, from Oa.lopI
Mr ' ,' de(vIot from March 2. I. r,:
DgPFABT. A llT..L.
Expres e .No. l.:30. m. I Ex preos No. .112" a.m
Exh rc4ss No,,. t 7:20 in. m. I Express No.. 4. :40,ta.
'is. , and 2 run daIly, 3 and 4 daily except
Sucnday.
PULLMAN PALACE SLEEPING CASO
through to ininnat. Louisville, Chicao. Ca.
ro and M n: Tenn., without change, anl forSt
Louis a sl(+eper is taken on at Milan, enabling
peasengors to go through without leaving tli
train.
Friday evening's train makes no conneetion
at Durnoin for (hilago.
Accommodation trains between New Orleans
and McComb (iftty:
Leave New Orleans 8:83 D. m. Saturday; 7:"d
a. in. and 3::10 V. m, Sunday.
Arrive, :15 a. in. and 9:20 p. m. Sunday, and
9:15 a. m. Monday.
Tickets for sale and Information aven at
Camp street, corner Common. nnde( Oty totel.
A._D. SELDOlI. Ass t6
E. . D. nos. general ianaer.
THE NWE O XT I g ILzS hAIL
THE BGREAT TBROiH rOUTE TO T?3
AST. NORTH AND WEST.
Via Louisville via Atlanta an St.Lroti.
OCARRYING THE U. S MALL.
Trains arrive and Depart from Dep(5. I 0t Of
Canal street, as fonllows:
DEPATr. I AaIIrv
Express...... 6:4. a.m. Express...... 11 a.
Exp.ress...... :oo p. m. Express...... 9:58 D, 0.
Pullman Palace Oars daily to Cincinn , LoU
isville, Nashville and St. Louis without olang.,
and only one change to Now Y'oftad a . .U
cities,
Ticket Office, corner of Camp and Oommos
streets, opposite OBIN Hotel.
mh2 tf J. W. OOLIMAN. Tieket Agent.
COMMISSION MERCHANTS.
ANT. CARRTcna. O. CA1inaU.
. L. CABURItu. CAES. J. OA1ama1,
A. CARRIERE & SONS,
COMMISSION MERCHANTS
Corner Royal and Customhouse.
Liberal Advances made on Consignments tO
our friends in
LONDON, LIVERPOOL,
jaRu sm HAVRE and BORDEAUX.
LEON QUEYROUZE. OSCAR BOIL
QUEYROUZE & BOIS,
Wholesale .iroeers,
DEALERS IN WINES AND LIQUOB8
And all kinds of WESTERN PRODUON,
At the Blue stores.
Corner Old Levee and Bienville streets,
de14 '76 lv New Orleans.
ALDERNEY DAIRY
- AND -
LADIES' LUNCII ROOM,
142 ..... Canal Street .... . 142
Refreshments in home style at living prices.
Open from Sa. m. to 9 p. m.
Closed on Sundays. mhIb im
THE NEW ORLEANS
Sanitary Excavating Co.,
(Incorporated by an act of the Legislature, with
exclusive privilege of EMPTYI5NG VAULI'S
PRIVIES, SINKS, Etc.)
Are now in full operation, and are prepared to
perform the above work with promptness and
dispatch. The advantages derived from the uas
of the
Odorless Excavating Apraratus.
as used by the company, are that the work eau
be performed at any hour of the day or night.
the thorough manner in which the deposits are
removed. the absence of all offensive odors, the
shortapace of time required (an ordinary sink
being emptied in from ten to fifteen minutes)
and, above all, ITS CIHEAPNE.S.
All orders left at the Comrany's office. No.
Common street, or sent to Postloflce box No. 91.
will renlve rromot attention. mhls im
EASTER.
HN HAND. A LARGE ANT) BLECT
r of Rhine Wines. Plr"nch. Hungarian and
California Win.:s. J;.a "a and Santa Or.s
tums, Kir-+h and Zwet.swasser, California
Fruits and Jellies.
For the Coming Holidays.
Also on hand, a laroge stock of WhilkieBrna
die. C,,gnc, G~ins. Sherries. ort, Abetsnth
and ermouth, French and derman Cordials
Pilsner's Bottled Beer and German tSeltzer.
Sole agent tor J. Kaunmandk Co.'s olncniag
Beer, in barrels, anad Star., Tafel and Uhrig
Bottled Beer. Also, for Creme de Bo~uxe er
nay OhsampsEgna
F. HOLLANDER,
in·~l~,~(~llaid+ 16118 B:.::.+I::++ +. "+'+:!.