The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1877-04-18
IMPORTANT DECISION.
Mrs. Gaines IL victorious All Asohg 'he
gine-Many Bona Eide Property
Holders Thereby Brought
To Grief.

10,
Clark Gaines. No. 273l-Myrs Clark Gaines
VI. NJ. J. Lizard ct ais. No. 1868 Myra
CLARK Gaines vs. P. II. Mousseaux ct ais.
No. 4oO6.Myra CLARK Gaines w, D. Cronan
No. sos M gInTn .rs Vs. a.
Va. +. +. Agniy ct ais. No. 5Oh8-Myra
CLARK Gaiuos Va. L. u, Compton ct ais. No.
4Ol0-Myra Clark Gaines va. +. A. Brown ct
ale. No 5099-Myra Clark Gaines vs.. A.
Herman ct ais.
The.e cases were ell before me, the numerous
quits for the recovery OF real estate in which Mrs.
Gaines seeks TO charge the respective defendants
a. trustees, and for discovery, and the case in
which Fuentes OF al ask for the revocation of the
probate of the alleged Will OF Daniel CLARK, known
as tho will Of 1918.
These cases have been heard, are submitted,
and are b. bs decided together by agreement Of
the parties. The full argument OF counsel oocu-
plying seventeen entire days and an examination
81 the records have satisfied me that the various
decisions rendered by the Supreme Court OF tho
United States have concluded me upon very
many of the questions Of law which have been
presented. shall first consider the suit for the
revocation OF the probate, q IT, the ,1 VIII; s,.
their opinion pronounced in this case, I'd OF Otto,
n. II. In order to determine whether IL waR re-
movable from the State to tho United States
Court, has defined it's nature and has character
Szed IL a. follows: "The action cannot be
trestod as properly instituted for the revoca-
zion of the probate, but must be treated
~ brought against the devsee by strangers
10 the estate TO annul the will as NUM-
ment Of title and to restrain tho enforce
ment OF the decree by which its validity was es-
tablished, so far as it affects their property"
III in suit which was instituted as an adjunct
and means OF defense to the numerous other
auits for The recovery OF real estate IN which the
complainant rested her title upon Will, the sub
stantal allegation being that the will was admit
led TO probate upon false and insufficient testi-
rnony. II has now been cumulated with these
other actions. 1t is, therefore. to be viewed and
tried ne il il were pleading in these other &C
lions, presenting the issue dertsduI ues nor, IL
presents the broad question, was there will I'M
feitered by the restrictions of the Code relating
10 actions TO annu the probate OF wills Before
considering the cause upon the merits, will dis
pose of the plea Of prescription OF five years
fhesUivil Uode art. $40 (3505l, provides as fol-
lows. ssThat actions for the nullity, or reHcssion
Of contracts, testaments or other acts are pre-
scyibed by Eve years"
think this article refers to actions brought
against parties who are in possession under will
and that IL has no application to will invoked, as
here by party out Of possession as muniment
nf title against those in possession not claiming
under the same will, and that whenever by and
aysiust such parties q will is relied upol to
establish link in the chain OF title It may be
attacked. think, therefore, the plea should be
veiruled.
The other exception. viz: that the plaintiffs
{complainants) Fuentes. ct al, could not main.
tain their actions, as strangers to the estate OF
Daniel Clark is disposed of by the fact that in the
supplemental petition they claimed to have de-
rived title from Relf and Chew, executors, or as
attorneys in fact Of Mary Ozark, universal lega-
Aee under the will Of Daniel CLARK, known as the
viii of 1911; and by the further fact that the con-
siaeraton of this case with the others renders
Abe petition or bill OF complaint in this action in
effect plea iuterposed in the others, which
may be termed direct actione.
This brings me to the question, was there, ac-
eording to the evidence presented before me, a
win !? Has the will of 1918 been estab lished be-
fore mo as an instrument executed by Daniel
Clark, and clothed with the requisite formlites
al q last win and testament according to the
laws Of Louisiana 1t is urged by the complain.
ants Fuentes ct al: 1. That the process verbal
which entities this will to be received as pro.
bs.ed will, is wanting. 2. That the will rs pro-
bssed is not shown to have been dated,
and thus. does not, 10 that respect, COM
ply with the requirements Of the law in
respect to Geographic wills. 3. That
he evidence disproves. or fails to prove, that
snch will ever existed; and fourth, that il such
will was ever executed, since 1t was not found
affer the death Of the teststor, the presumption
of law is, that it was destroyed by the testator
amino cdnceadndi, and that this presumption
has not been rebutted by the proofs.
FIRST, as to the absence of the process verbal.
Articles 9l2 and a43, G. p, give the textual pro.
visions of the law as to what the process verpai
shall contain but it is clear they cannot, with the
order for executing and recording the will, apply
10 wills, which, as in this case, are lost.
The reasoning of the Supreme Court OF Louis
lana and their decree in which they order the re.
cordipg and execution of this identical will with
out any such process verbal, aud when in the
nature OF things no such recital as is pointed out
II the requirements of the Code of Practice be-
fore referred to could exist, ia an authoritative de-
,.ssion uvoa the law OF Louisisns on his point
fglccession OF Clark, IL Annual pages ia, 1911
Judgs L., o. sitting as q Probate Judge, while
snfing the proofs sufficient TO establish the will
aacTeed against its being admitted toprobate OF
he ground that the proof was not, in manner snd
form, such rs the statute required There was
therefore. no probate OF the VIII in the lower
rourt but on appeal the Supreme Court reversed
4he decree and ordered the will executed. Wha
they did in that case is practical construction
she law upon the point as to how . lost wall may
be probated, and of its admissioiiify when sc
probated. IN !. =.
The second objection: THAT the viii is no
shown to have been dated. Article loss slool,