New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1870-06-14

Myra, all the estates, whether real or per-
sonal, of which may die possessed, SUBJ
ject only to the payment of certain iegacles
hereinafter named" 80,
But it is said the probate of the will in dis
pute can not stand, because there was 20
direct action by the Louisiana court annui-
ing the probate of the will of ISL. This
was not necessary. The probate OF the will
of 1918, by the mere fact OF Its probate,
necessarily annulled the will of 1911, so far
as its provisions were inconsistent and so
far as the estate was legally administered
under it. And this precise point was de-
cided in the Hennen case.
= We find, therefore, Rs further fact in
this case that Daniel Clark contracted mar.
rage with Zuline Carriere in good faith. As
Clark was in good faith when he married the
mother of the complainant, it follows that
she can take the estate under the Olagraphic
will of 1913. 1t is conceded the property in
dispute, and which the defendants admit
estate of Daniel Clark, left at his de-
cease, and devised to complainant IN his
late will. She is therefore entitled to the
relief sought by her bill, unless prevented
by some of the special defenses lnterposed,
which we will now proceed to notice. 1t IS
claimed as question of law that the decree
of this court in Gaines VS.. Relf az Howard)
is res judicata, both as to the present claim
| for the property and the civil status OF the
complainant. But this point was met and
disposed of adversely in the Hennen case,
and will not be further considered.
Two defenses have been prominent
throughout this litigation, and as they are
both applicable to some of the cases now
before the court, and as one opinion will, in
fact, dispose of all the cases, we will Con-
slider in this case all substantial defenses to
the recovery by Mrs. Gaines OF her fathers
estate.
In bar of the claim Of the coinplainants'
titles acquired under Relf and Chew, ex-
ecutors of the will of 1911, are set up. But
these titles cannot avail the defendants, be-
cause Relf aud Chew, as executors OF the
will of 1911, had no authority to make the
sales, and could, therefore. pass no interest
to the purchasers. This is not OILY clear
from the law itself, but also from the judi
cial decision of the State Court. Chief JUS
tice Martin, in Donaldson VS.. Hall, Mar
tin, N. S., page lI3, says: "a sale by execu.
tors without an order Of court, and by pri-
vate contract, is void;" and to the same
effect ie the case of Lanfear vs. Harper, Ii
Annual, page 548. The defendant having
failed to prove that any order of court was
ever given to make these sales, they are
utilities and convey no titles. And this Is
the decision in Patterson vs.. Gaines, IN
IL
Hennen, "a Howard. 1t is useless to discuss
the point further as we see no reason to
question the correctness of the conclusion
at which the court arrived in these cases.
It is insisted that the defendants are pro.
tected by reason of conveyances from Relf
& Chew, attorneys of Mary Clark, the uni
versal legatee under the provisions of the
will of 1911. The invalidity of this defense
has been also sustained by this court in the
.,,ek 70 .affnnf
probate of the will of 1913, if Myra Clark
Gaines is legitimate, and that we have found
to be true, is to make her sole heir of Daniel
Clark, and, as a consequence, Mary CLARK
could in law have no title as heir, and could
convey none.
This brings US to the only remaining
defense which we shall notice, and that is
the bar by prescription. But the title OF
the complainant is not barred by prescrip.
ton according to the laws of Louisiana.
This defense was made in the case OF Gaines
VS.. Hennen, so often referred to, and dis
posed of adversely to the defendant, and is
no longer an open question in this court.
The prescription relied upon in this case Is
the same that was relied upon by the de.
fendant in that, and as the proofs are CON-
mon to both, it follows, as the plea of
prescription was not available in the one, 1t
is not IN the other.
10 the QlSCTeUlL Vi tuo VI
Clark, this child grew to womanhood in ut
ter ignorance of her rights and parentage,
and did not ascertain them until 1884, (then
not fully, since which time she has been
endeavOring to obtain her rightful inherit
ance. Owing to the lapse of time. i. was
difficult to reach the truth, and necessarily
for many years she CROPPED her way in dark
ness but finally. she was able to show the
gre 1t fraud,perpetrated against; her fol, in The
judgment of the Supreme Court OF LoulsI-
ana, she established the validity OF that
very will, which forty three years before
her father had executed in her favor. This
action of the court settled, what was before
doubtful, her civil status, and removed the
difficulty she had formerly encountered in
pursuit of her rights. The questions of law
and fact to these rights were determined in
the case of Gaines vs.. Hennen. After argu.
ment by able counsel, and on mature con-
sideration, we have affirmed that decision.
Can we not indulge the hope that the rights
of Myra Clark Gaines in the estate of her
father, Daniel Clark, will noac be recognized?
The decree of the Circuit Court of the East
ern District of Louisiana is reversed, and
this cause is remended to that court, with
instructions to enter decree for complain
ant in conformity with this decision"
COPY OF THE MANDATE.
United States of Am erica, IS: The President of
the United States Of America to the honorabl
the judges OF the Circuit Court OF the United
States for the District of Lou siana, greeting:
WHEREAS, Lately in the Circuit Court of
the United States for the Eastern District
of Louisiana, in cause between Myra
Clark Gaines, complainant, and the City OF
New Orleans, H. E. Lamayre, Charles Hop.
kins, Dominique Lanata, L. Lalande Fer
rlere, defendants lin equity, wherein the
decree of the said Circuit Court entered in
said cause is in the following words, viz:
"This cause came on to be heard at this
term upon bills. answers and replications,
exhibits and proofs, and was argued by
counsel, and submitted to the court; where
upon, on consideration thereof, it is
ordered, adjudged and decreed that the bill
of complaint herein be dismissed with
COSTS" Decree entered nineteenth April,
1858; decree signed twenty.thjrd April,
1858, as by the inspection of the transcript
of the record of the said Circuit Court, which
was brought into the Supreme Court of the
United States, by virtue of an appeal agree
ably to the act of Congress in such cases
made and provided, fully and at large
appears; and
Whereas, in the present term of Deem
Der, in the year of our Lord one thousand
eight hundred and siXty-seven, the said
cause came on to be heard before the said
Supreme Court, on the said transcript
of the record court was argued by
counsel. On consideration whereof, it is
now here ordered and decreed by this court,
that the decree of the said Circuit Court in
this case be, and the same is hereby reversed
with costs, and that the said complainant
recover against the defendants, the city of
New Orleans, ct al, one thousand eight hun
dred and seventy-fve dollars and ffty-sx
cents for her costs herein expended. and
| have execution therefor. And it is further
| ordered that this case be, and the same is,
hereby remanded to the Circuit Court of the
United States for the District of Louisiana,
with instructions to enter decree for the
complainant in conformity with the opinion