New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-06-15

with regard to wills of either realty or per
sonalty in Louisiana. If the State courts
are not bound by the probate, do not SEE
why the United States courts should be
bound thereby. am referred to the opinion
of this court delivered in May term, 1870
| upon an application of Mrs. Gaines to re
| move into this court proceedings instituted
in the Second District Court for the parish
! of Orleans, by Fuentes and others, for the
revocation OF the probate of the will of 1913
| We then held that we had not probate jur;s.
! diction and could not entertain the aues-
tons which were raised in that case.
| Such is still my opinion. But that is
where the direct object of the proceeding it
the granting OF revocation of probate no.
when the validity of the will comes up in
cidentally on a question of property. The
probate of the will is granted for the pur-
| pose of administering the estate of the de-
ceased, and cOnfers authority upon the ex-
| ecut0r to do all things necessary to that end.
| But II the executor or any other person
claims, by virtue of the will, property in
the possession of third person, who was
not party to the probate proceedings, and
who claimed by a title adverse to the viii,
such third person is not concluded as to
its validity by the probate. s..tsy,.-
Such l understand to be the laws of
Louisiana, and when the validity of the
will is brought in question in this incidental
way 1t is open for investigation in any court
in which the title of the property may be
litigated, whether a State court or a court
of the United States
If, then, the defendants are not concluded
by the probate Of 1856. but have still the
right, unless barred by prescription, waiver,
estOppel or some other supervening cause,
to contest the will under which the COM
plainant Claims they ought in some way to
eft a hnnafit of fhn stnhf NIT
States courts, in attempting to admin ster
State laws must do so fairly, so as to secure
to suitors all their just rights under those
laws, otherwise they might be the means of
much injustice and oppression. g..
We then come back to the question
whether proceedings ought to be stayed in
this court in the several cases referred TO
until the defendants can bring to ter
mination the proceeding instituted by them
in the Second District Court of New Orleans
for revocation of the probate granted in
1856-Of course the application can not be
entertained In reference to the cases that
have gone to decree. They must be re-
garded as concluded. 1t can only be enter
tanned In reference to those eases which are
still undetermined, none of which, as | un-
it, are now at issue.
Answers are yet to be filed therein.
In view of the considerations which |
oSioiO Stotcu' IL 10 the
defendants to contest the validity of the
will, either by answer in these cases or by |
for revocation of the probate |
IN the parish court, or in both of the |
methods. Under these circumstances stay |
IF proceedings in this court is a matter en-
irely III discretion of the court Had the |
defendants promptly resorted to the dis
riot court for redress, / should have felt it nv
iuty to suspend proceedings here until they
,ould have had fair opportunity to get the
iecision of the parish court. But as the
supreme Court remarks in Gaines VS.. New
orleans, 8 Wall, 7O3, the probate has been
allowed to rest now for twelve years lnow
fifteen years.. and it seems to me unreason-
bile to tie the hands of the complainant. /
hink am bound to allow the causes to
'roceed if the complainant shall so elect;
nd If the defendants are successful in pro-
uring revocation of the probate in the
arish court before the closing of testimony
a this court, they will then have the bene-
t OF it; otherwise they must depend on a
Of the will in the causes pend
lg here.
The application is refused