The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1848-04-01

code OF ls0S in this particular in the code of
SALE from donee Of excessive Donation IL only liable
to the forced heir after execution arst had against
third are only liable in the order Of their pur
chssss That the egitime of tho forced neir is not to
recovered in the specific property but in the value OF
the legtime II be ascertained under the Lousi-
codes For these last positions counsel rely upon
the language of the codes and upon the Of Holden
VS. shepard OF al Louisiana r. 5o5. That was q case
which under the code of $685. but is cited in the
new code judicial exposition of both the old and
the S the Gods undsr the
cited, Mary Clark the mother Of Daniel Clark, and
grandmother of Mrs Gaines rs universal legatse OF her
by the will OF 1871 accepted the succession OF his
estate, tho law of Louisiana required 1t to be done
That her power Of attorney to the executors Chew and
Ref authorized them to make sales Of the property Of
Daniel Clark they made, and gave to the pur-
chssers valid titles without any order Of tho Probate
Court or any Judicial sale being necessary That the
forced heir exhauss the property or In ether words dis
cusses the rights property of the grandmother in her
The statute of limitation, it was also said barred
coyery by tho oomplainants
We have stated more particularly than we would
otherwise have DONE the urged by the
sci Of tho appellant and in the strongest way In which
they were presented IL was due to the Importance OF
the ceseto the interest OF all concerned In this
roversy because the arguments of both of the couu
sci command respect Parts OF some of these obec-
tions have our acquiescence; others have not.
Our conclusions relating to the marriage of the mother
Of Mrs Gaines to her fsherthe lawfulness of tho
riagc and that she is the legitimate oGpring 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 msdo by the executors make the
Were those pissdinss disrsut from What they are,
there would be enough to prove the marriage and the
legitimacy of Mrs Games. But the pleadings
cannot, upon the evidence, exclude such conclusions
would be proof Off, where 1t took place This marriage
took place in Pennsylvania at Philadelphia in tho pre-
sencs of witness who says she was presents and that
the ceremony was performed by Catholic priest Mar.
risge s civil contract in Pennsylvania to be completed
by any words In the tense with regard to form
Hantz and Sealy, Binney, 4O5. Marriage to be do
cded by the laws of the place where oelebrated Phil
lips and Gregg 10 Watts 1853 Every intendment made
ia favor of legitimacy Ssnssr and Bower, Penn Reps
453
The bill asserts the marriage its lawfulne and that
Mrs. Gaines the issue of the marriage the answer Is
repcsoD. But as the appellant accepted the waiver
offered in the bi that their might be put in
is not entitled have the benefit Of his answer,
deAal Of the plaintiffs case unless the denial is con-
tradicedby the evidence of two Witnesses or by one
and oorroborating circumstances.
In the OF the Union Bank Geary, Peters 80,
this court said Indeed, inclined to adopt as
general rule that not under oath, is to be
considered merely denial of the allegations Of the
BILL analogous to the general issuo at law as to put
the complainant to the proof Of such allegations" In
Bartlett Gale, 4th Paigs CHI Rep. the Chancellor
says-" But where an answer on oath is waived, al
though as pleading the complainant may avail him
self OF admissions and allegations Ia the answer which
20 to establish the made by the BILL such is
no evidence in favor of the defendant for any
An answer always under oath unl0aH the plAlnfln
chooses to dispense with it, and thon tA> court will
order the Of the defendant to he taken without
oath But whether the answer is not sworn to by tho
order OF the court when the plaintiff valves it, or the
waiver has been voluntarily accepted by the de-
fndan is not evidence in his favor for any purposes
this said in 6th Peters just cited IL analogous
to the general issue at law sna single undiscredited
witness will be sufficient to prove the allegations In the
this We do not intend, however, to put the con-
oiuson to which have respecting the marriage
solely upon her testimony 1t strongly corrobora-
led by other proofs that the would be dsprov-
ed, II IL hao been sworn to.
Madam Despair says Daniel Clark was married in
Pniladephis, in 1903 by Catholic priest / pre-
sent at the marriages. child was born of this
riage, to wit, Myra Clark (now Mrs Gsnes) who MAR
ried William Wallace Whitney, son of Gen T. Whit
nsy, Of tho State OF New York. present at her
BIRTH and knew that Mr.. Clark claimed and acknow-
lodged her to be his child. She was born In 1906
aether knew nor had any reason to believe any other
child besides Myra was horn Of that marriage The
witness then proceeds to relate what she terms the cir
cumstapces Of the marriage. including the previous
marriage of Zuline Carrers with De Grange; his sub
sistng marriage, when he married Zuline, and the
sult OF IT, when that fact had been discovered by Zune
and her family
Thin witness il not dscredied In any Of the ways
for any OF hs causss which can allowAby be used for
ness Marriage may be proved by any person who was
present and identify the parties. St Devereux
o. ors,.n ootru mro"r .hs
it solemnsed in the manner usual in that country
will be good presumpve proof that 1t was valid mar
riage. LaSon Us Higgins, Stark, IT'S.
Marriage by person habited ~ priest and being
per pe5a de present. person performing the ceremony
aust be presumed to have bcen 8 clergymau-R. v.
made to lessen the force Of her testimony In other
than by negative declarations of other perssns who
knew Clark, that they do not believe he mar
ried And by the witness, De Ia Croix, who sayeand
hs is the only witness who rays sohst Clark spoke to
him Of Myrs, rs his natural child. A hundred such
witnesses would be sufficient to impeach the test
mony of one witness swearing positively to the force Of
fhe marriage and allowing that Clark aid 80 speak to
# child when tho marriage has been proved Is not
sufficient to rebut the presumption Of its having been
lawfully begotteu until ths presumption is dsproved by
evidence showing the want of between the hus
band and wife. Bury and rhillpot, 2, M and X, 349
onoe the marriscs is proved nothing shall 20 allowed TO-
facts showing to be impossible that the husband could
the father See opinion of the judges, in Banbury
Peerage csse by LIE Aarchsnt. Accesss presumed I'M
less the contrary be plainly proved.
But all the other witnesses, scmo of whom
ia Cark confidence than De La Crox was say that he
spoke to them Of ayra his legitimate chd calling her
such
Pierre aron Bosfontans declares that Clark treated
him rs confidential friend, in matters relating to Myra
and to his Affairs generally That he was with Clark
shen he died He says, Clark repeatedly spoke to him
Of Myra his legitimate child Nearly his last words
With great respect and frequently told me after her
marriage with Gardette, that he would have made his
marriage with her public If that barrier had not been
made; but that she was blamelcss.
Mrs. Harriet Smith says, Mr. Clark and my lats hus
band, r Harper, were intimate friends, &c. sucked
in her infancy, MIR Clark's daughter, Myra did it
voluntarily Ia consequence Of her having suffered from
the nirad nurees Mt C.ark considered That thi6
situted powerful claim his gratitude and friend
ship; and he afterwards gave his confidence respect
Jag her.
The interesting and truthful narrative Of this witness
of tho relations bstwssn the father aud child from her
birth to he time Of his DEATH and his frequent dscara
lions that he would acknowledge her his Legitimate
child must make strong impressions upon any reader of
it, that she such.
Bellcchssse, the intimate and confidential friend of
Clark for usy years. and who proved HIMSELF as the
facts In the show worthy of that relation,
with much r.a.ction and elaboration Clark spoke OF
bis being occupied in preparing his last will On these
ocoasionr in the most impressive and emphatic manner
he spoke OF Myrs the object Of his last WILL AID that
he should n declare her to be his legitimate child and
heiress Of all bis sstate.n
Madame Caileret the sister OF Zuline, says she
not present at the marriage of her sister with Mr. Clark
but do know that Clark made proposals of marriage
with my sister. Mr.. Clark's proposals. Of marriage
msde after IL became known that her marriage
with Mr. De Grange void from the fact Of his hav
ipg then and at the time OF his marrying her living
Nrife " Mara deierred- heinQ