Shepherdstown register. [volume] (Shepherdstown, Va. [W. Va.]) 1849-1955, 1868-06-06
The Shepherd viii Case in New Or
leans.

n. By request we insert the lulIow-
ing article from the New Orleans Bee OF
May 5, in reference TO the "ShePherd
Will Case"
This suit, which has been on trial be-
fore Judge Thomas, of the Second Dis
rict Court of this parish, for some days
past, has attracted a great deal of ai'en-
lion on account Of the parties, who are
well known here. the value Of the estate
of the .esla,or, (aboul 5000, 900 in 1881
the principles of law involved in the case'
and the eminent counsel who were engag-
ed in its management.
The lesson to be drawn from this con-
leslation By Hose who have property TO
leave behind them at death is, that 1t Is
dangerous TO attempt 10 evade and cir
cumvent the law regulating the transmits
! sion of estates. This was exactly what
the evidence brought forward on the trial,
/ if we understand it, proves James II
/ Shepherd TO have done. He executed
1 two papcrs-one contradictory Of the 9th
er-on the same day, and sealed ihem up
together in the same envelope.
/ One Of these papers disposed OF his en-
tire properly to a universal lega!ee-hIs
brother. r. d. Shepherd, or, IN case OF
his death, 10 another brother, Abram
Shepherd, ignoring all his other relatives.
/ This will was in the proper form, and
doubtless was intended by him to be
nlaced on the records of the Probate
Court, and 10 be executed under It's sane
ton, which execution was ordered by the
Cour, and carried into effect. The 9th
er document, as the evidence goes TO
proye, contained his real intentions, be-
cause therein he set forth the names OF
various persons, among whom were his
sisters and his nephews and nIeces, to
whom he bequeshed the same property
and who were 10 be placed in possession
oft by his universal legstee, K. ID. Shep.
herd, who seems 10 have been appointed
simply as an Intermediary or trustee.
This document, we Judge from the iestl-
mony, was explanatory Of the other paper.
It's form has not been proved, because the
document itself has disappeared. the sue
cessors of 4. y. Shepherd swearing they
never saw il and never heard such a pa
per had been in existence. The original
envelope Of both the papers ls still on file,
however, in the Probate Court, and bears
the Endorsement Of James H. Shepherd,
which states that il contained his will and
"a Ie.ler Of instructions" 10 his universal
Iegotre.
A long correspondence Of the latter with
the heirs-atlaw, after the death Of the
testator, discoses tho fact that he was in
possession OF this letter. and that he ac-
knowlrdged 1t contained certain DISPOSE
lions, contradictory Of the will, obllgstO-
~ upon him to discharge. These dispo-
siIions be did partially execute, but the
bulk Of the property he appropriated 10
his own use always asserting that his
brother had ooqucathed the whole estate
to him and LEFT it 10 bis discretion wheth-
or to pay these Iegacies or not-in other
words, that the letter left with The will
was merely advisory and not obligatory.
The defendants contend that the letter
referred TO as accompanying the will was
morely advisory in its character and not
binding that at best, il only imposed
moral obligation upon K. d. Shepherd,
and not legal one. He was therefore,
cay they, al liberty 10 disregard ito
Judge for himself whether 10 carry out
his broihcE's wishes or not 4; but as they
have tailed to produce the letter, so that
the CouIl might determine lis character
and legal effect they must submit to The
rule that evidence thus withheld should
be taken as making againslthem, instead
Of being in their favor.
The object Of the plaintiffs and the
prayer Of their petition is. that the pro-
bate will Of James II. Shepherd be de-
clared null and void, as being contrary to
the law controlling donations morris eau
So,
The law prohibits anything like an in
erposilion Of trustee between tes'a'or
and his beneficiary heirs,and declares that
will is null and void in which such a
substitution turks. If James II. Shep-
herd intended his property TO be dis'ribu-
ted by his brother 10 these helrs during
that brothers lifetime, such intention was
contrary to law, and vas what is called 8
fdei commission. IT TO be distributed al
his brothcr's death, il was equally con.
,rary to law, and was what is called Pro-
hibiied substitution. In either event it
would seem that If we have stated the
law and the evidence correctly, the will
proba,ed ought TO be declared null and
void on the ground that it did not contain
the real intentions Of James II. Shep-
herd.
1t will be remembered that the will Of
Chief Jusllce Martin Of this State was al
tackled on similar ground, and ollhough
sustained b. the Supreme Court, many
members OF the legal profession doubt to
this day the correctness Of the decision.
Judge Martin unqueslionobly evaded the
law of Louisiana if he disposed las is be-
licved by some) Of his estate by universal
tile TO his brother. when he intended thai
brother to distribute his property among
his relatives in france and not retain il
for his own use. Such disposition was
clearly fdei cOmmjsSum which ought
10 have had the effect Of snnullhg the will.
James II. Shepherd seems 10 have plan
ned a similar scheme. His object, II is
thought. in making public will and X.
d. Shepherd hi, universal Iegaee, was 10
keep his succession out OF Court and thus
save the heavy charges OF the law. and 10