# Case of Broderick's Will

* related portals: Supreme Court of the United States.
* sister projects: Wikidata item.

## Dissenting Opinion

    Clifford
United States Supreme Court
88 U.S. 503
Case of Broderick's Will
APPEAL from the Circuit Court for the District of California.
This was a suit in equity brought by the alleged heirs-at-law of David C. Broderick, late United States Senator from California, to set aside the probate of his will, and have the same declared a forgery, and to recover the said Broderick's estate, much of which consisted of lands now comprised in the thickly settled portions of the city of San Francisco.
The complainants were John Kieley and Mary, his wife, George Wilson and Ann, his wife, and Ellen Lynch, all residents of Sidney, in New South Wales, and subjects of Great Britain and Ireland. They alleged that Mary Kieley, Ann Wilson, and Ellen Lynch were, at the death of Broderick, his next of kin and only heirs-at-law, being daughters of Catharine Broderick, sister of Thomas Broderick, the father of the said David.
There were several hundred defendants, who were in possession of and claiming as owners the property in question. John A. McGlynn, one of the executors who propounded the will and procured its probate, was also one of the defendants.
The bill was filed on the 16th of December, 1869, and stated that Broderick died on the 16th of September, 1859, intestate, being at the time a citizen of the United States and a resident of San Francisco, in California, seized and possessed of real and personal property in said State. Then, after stating the relationship and status of the complainants, the bill proceeded to allege that at the time of his death, Broderick was seized of the real estate set out in the schedule annexed to the bill, and was possessed of personal property to the amount of $20,500, also set forth in a schedule.
It then alleged that on the 20th day of February, 1869, the defendant McGlynn, on behalf of himself and one A. J. Butler, presented to the Probate Court of San Francisco a certain paper writing (a copy of which was annexed) which they falsely pretended was the last will and testament of the said Broderick, in which the said McGlynn, Butler, and one George Wilkes were named as executors, and, at the same time, presented their petition in writing, whereby they prayed the court to admit the said will to probate, and issue to them letters testamentary, knowing, at the time, that the said paper was a forgery. And the bill charged the fact to be that it was a forgery, and not Broderick's will; that it was forged about the 1st of January, 1860, after his death, for the purpose of defrauding his legal heirs, and that it was written by one Alfred Phillips, and that the name of Broderick was signed thereto by one Moses Flanagan. The bill then proceeded to state as follows:
'That the said Butler, well knowing that the said paper was a forgery, caused it to be presented as aforesaid, as the genuine, true, and valid will of the said Broderick, and caused a commission to issue under the seal of the said Probate Court, to a commissioner of the State of California residing in New York City, to take the testimony, reduce to writing, and return it to the said Probate Court, of John J. Hoff and Alfred A. Phillips, whose names appear as subscribing witnesses to said paper; and their testimony was so taken and returned, to the effect and purport that the name of the said Broderick signed to said instrument was the genuine signature of the said Broderick, and that he did sign, seal, publish, and declare the said instrument to be his last will and testament, in the presence of the said witnesses; and that they did sign the same, as witnesses, at his request, in his presence and in the presence of each other; and the said Butler did, also, procure and present to said court the testimony of certain experts in handwriting, who testified to said court that, in their opinion, the name of Broderick, subscribed to the said paper, was in the genuine handwriting of the said Broderick; he, the said Butler, well knowing that the same was not the genuine handwriting of said Broderick, and the same was not in truth and fact the genuine handwriting of said Broderick; and by means of such false testimony (your orators not having any notice in fact of said proceedings, and no one appearing in their behalf) they did obtain the order and judgment of the said court admitting the said will to probate, as the genuine last will and testament of the said Broderick, and granting letters testamentary to Butler (now deceased) and McGlynn, as executors of said last will and testament, and they proceeded to act as such executors, and allowed and procured to be approved by the probate judge claims against the said estate to the amount of $80,000.
'And afterward the said Butler and McGlynn caused application to be made to said Probate Court for, and obtained, an order of sale of the estate of the said Broderick, deceased, under which they sold the whole of the said estate. That at the time of said sale, which took place in the city and county of San Francisco, it was a matter of public and general notoriety that the said pretended last will and testament of said Broderick, under and by virtue whereof all said probate proceedings were taken and said property sold, was not the will of said Broderick, but was a forged and simulated paper, and all of those who purchased at the said sale, and the defendants and those through whom they deraign title subsequent to the said sale, purchased and acquired whatever interest they have or had with full notice of the frauds hereinbefore alleged.'It appeared by a subsequent statement that the will was admitted to probate on the 8th of October, 1860, and that the sale referred to took place November 7th, 1861.
The bill then alleged that the complainants had no knowledge or information of Broderick's death, nor of the forgery of the will, nor of its presentation for probate, nor of the probate or order of sale, nor of any of the proceedings, until the last day of December, 1866, within three years of filing the bill; and that since that time they had been diligently endeavoring to discover the facts and the evidence relating thereto.
The bill charged that the defendants claimed as owners or were in possession of some portion of Broderick's estate, deriving their only title or claim thereto by or under the probate sales and conveyances as made by the said pretended executors by virtue thereof; that Butler was dead, and that Wilkes no longer had any interest.
It then prayed an answer to several specific interrogatories, as, namely, whether the several defendants did not know, or had not been informed, that the probated paper was a forged instrument? Whether it was not, in fact, forged, and not the will of Broderick? Whether it was not fabricated after his death, as stated in the bill? Whether Butler did not cause it to be propounded for probate, knowing it to be a forgery? Whether he did not procure the testimony and probate, and sell the property by virtue of orders of said Probate Court, as stated? And that McGlynn and others, who took part in the probate sale of the property, might set forth the details thereof, the time when sold, the amounts received, and the disposition of the proceeds.
It prayed further that the will might be declared a forgery; that the probate and all subsequent proceedings might be set aside and annulled, including the decrees of probate, sale, &c., or that the defendants, purchasers of lands and lots under the said orders of sale, or deraigning title therefrom, might be charged as trustees for the complainants, and might be compelled to convey to them, or that a commissioner be appointed to make such conveyance, and for general relief.
By the will in question, a copy of which was annexed to the bill, the testator, after payment of his debts, gave to his friend, John A. McGlynn, $10,000, and all the residue of his estate to George Wilkes, of New York, and made Wilkes, McGlynn, and Butler executors. It purported to be dated at New York, January 2d, 1859.
Many of the defendants answered the bill, denying all knowledge or belief of any fraud or forgery in the will, and claiming to be bon a fide purchasers without any notice of any such fraud or forgery. Many other defendants demurred to the bill.
In August, 1871, an amended bill was filed, whereby the complainants reiterated with much particularity the facts that they never resided in California or the United States, and never heard, or had any opportunity of hearing of Broderick's death, or the events connected with the probate of the will, until more than eight years after its being filed for probate, being illiterate, and living in a remote and secluded region in Australia, and stating other facts of the same general character to account for their not having sooner taken any proceedings to assert their rights.
Demurrers were also filed to the bill as amended, and upon the argument of these demurrers the bill was dismissed by the Circuit Court. From that decree the present appeal was taken.
The grounds relied on by the defendants on the demurrer, and by the appellees here, were—
1st. That a court of equity had no jurisdiction of the subject-matter of this suit, the same being vested exclusively in the Probate Court of the City and County of San Francisco.
2d. That the action was barred by several statutes of limitation of the State of California.
3d. That the defendants were purchasers at a judicial sale, made under the orders of a court of competent jurisdiction, never reversed or set aside, and not impeached by the bill.
4th. That the complainants were non-resident foreigners, incapable of taking or holding property in California.
The special character of the Probate Court of the City and County of San Francisco, and the provisions of the several statutes of California about it, and also as to limitations, are set forth in the opinion of the court.
Mr. I. T. Williams (a brief of Mr. S. H. Phillips being filed), for the appellants; Mr. S. M. Wilson, contra.
Mr. Justice BRADLEY delivered the opinion of the court.

## Notes

* ↑ Infra, p. 515-519.
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