THIS was an appeal from the Circuit Court of the United States for East Louisiana.
It was a branch of the case of Gaines and Wife v. Chew and others, which is reported in 2 Howard, 619.
In the history of that case it is said (2 Howard, 627), that in 1836, Myra (then Myra Whitney, and now Myra Gaines) 'filed a joint bill with her husband, in the Circuit Court of the United States for he District of Louisiana, against Relf and Chew, the executors in the will of 1811, the heirs of Mary Clark, and all the purchasers and occupants of the estate of which Clark died in possession, claiming to be the heir and devisee of Clark, and calling upon them all to account for the rents and profits of the several portions of the estate.'
The joint bill, thus filed against a number of persons, was treated differently by the respondents. Some pursued one course and some another. Relf and Chew, the executors, demurred generally, and upon the argument of the demurrers, some questions arose upon which the judges differed in opinion. These questions were consequently certified to the Supreme Court, and the answers to them constitute the case reported in 2 Howard, 619. Patterson was one of the occupants and purchasers of a part of the property of which Clark died seized, and he chose to answer the bill. The proceedings of the court under this answer are now under consideration.
The history of Zuline Carriere, the mother of Mrs. Gaines, is briefly given in 2 Howard, 620, and need not be repeated. The facts are there stated, of her marriage with a man by the name of De Grange; of her afterwards learning that De Grange had a former wife living; of her separation from him and journey to New York to obtain proofs of this first marriage of De Grange; of De Grange's first wife arriving in New Orleans from France; of De Grange being committed to prison on a charge of bigamy, and subsequent escape from the country; of Clark's marriage with Zuline in Philadelphia; of the birth of Myra, the complainant in the present suit; of Clerk's placing her in the family of Mr. and Mrs. Davis; of the circumstances attending the making of the will of 1811; and some of the testimony relating to a subsequent will made in 1813, leaving all his property to his daughter Myra. The statement of these things in 2 Howard is referred to, as being a more particular narrative than the mere outline which is here given. We propose to take up the case where that report left it.
The record in the present case was in a very confused condition. Papers were misplaced, and the entire record of proceedings in the Court of Probates, from 1834 to June 8, 1836, was introduced as evidence by the defendant, Patterson, in the Circuit Court; and also the proceedings of that court at a much earlier date. From them the following facts appear.
Clark died on the 16th of August, 1813. On the 18th of August, two days afterwards, the following petition was presented to the Court of Probates.
To the Honorable the Judge of the Court of Probates of the Parish of New Orleans.
The petition of Francisco Dusuau de la Croix, of this parish, planter, respectfully shows:
That your petitioner has strong reasons to believe, and does verily believe, that the late Daniel Clark has made a testament or codicil, posterior to that which has been opened before your honorable court, and in the dispositions whereof he thinks to be interested. And whereas it is to be presumed that the double of this last will, whose existence was known by several persons, might have been deposited with any notary public of this city.
Your petitioner, therefore, prays that it may please your Honor to order, as it is the usual practice in such cases, that every notary public in this city appear before your honorable court within the delay of twenty-four hours, in order to certify on oath if there does or does not exist, in his office, any testament or codicil, or any sealed packet, deposited by the said late Daniel Clark.
And your petitioner, as in duty bound, will ever pray, &c.
(Signed,) D. SEGHERS, Of Counsel for the Petitioner.
Francisco Dusuau de la Croix, the above petitioner, maketh oath that the material facts in the above petition set forth are true, to the best of his knowledge and belief.
(Signed,) DUSUAU DE LA CROIX.
Sworn to before me, August 18th, 1813.
THOS. BEAL, Reg. Wills.
The court ordered the notaries of the city to appear before it on the next day, when seven appeared and deposed that no testament nor codicil, nor sealed packet, had been deposited in their office by the late Daniel Clark, nor had any deposition, mortis causa, been made by him.
The will of 1811 was then admitted to probate. It was as follows:--
Daniel Clark. In the name of God: I, Daniel Clark, of New Orleans, do make this my last will and testament.
Imprimis. I order that all my just debts be paid.
Second. I leave and bequeathe unto my mother, Mary Clark, now of Germantown, in the State of Pennsylvania, all the estate, whether real or personal, which I may die possessed of.
Third. I hereby nominate my friends, Richard Relf and Beverly Chew, my executors, with power to settle every thing relating to my estate.
(Signed,) DANIEL CLARK.
Ne varietur. New Orleans, 20th May, 1811.
J. PITOT, Judge.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse