The New Orleans daily Democrat. [volume] (New Orleans, La.) 1877-1880, 1877-04-18

the pr vision which he rad made for her through
Bslleohssse2 do not say that the presumption
arising from these central facts in Clarks life
would In law be sufficient to show that the will
of 1878 survived him; but do cay they prepare
the mind to find in the record the testimony
which will establish that fact, such testimony
found in the statement Of Boisfontaine. Bois-
fontaine, at pages 70 and 80 says that he was
with Clark during the last two days of hia life
he never left his bedside, and that during
his last hours he spoke OF this will and
Of the qualification II gave him that by means OF
it he had provided for his daughter. What more
natural than tbis2 What more credible And 1T
is testified to by witness who is nneontradioted
| excepting by ercu stance which has been At
| tempted TO be drawn from the testimony OF De In
Croix De Ia Croi1 was made the tutor OF Myra
in the will OF 1913, well as one OF the eXe uors
De Ia Croiz, in bis testimony in the case known
as No. 49, at page 536. states in substance, that
the day before Clark's death no called 10 bis
hpuse and had an interview with him; that moth
| ing was said about the will of 1918.
The argument has been pressed with great
force by the solicitor for Fuentes ct sls that if
Clark then had the will he would have dsliy red
| ii to De la Croix, and [ am asked to infer from
the silence of Clark in this interview on the snb-
ieet of the will, that it had ceased to exist. The
conclusive answer tp that argument is that what
ever that interview was. it had not, In De 10
Crox's mi 3D. destroyed. or at all shaken his be-
lief that CLARK had left the will OF 1913 in exist
enee at the time Of hs death. for at page II OF
the probate record. be- presented to the Judge Of
Probate petition sworn to by him. in which he
stated that he had strong. reasons TO
there was subsequent will do
| to that of 1911, whose existence was well known
by several persons, and asked that the notsries
OF New Orleans be subpsuaed to see it they
could not produce the duplicate Of :his last will
that ia, the will of 1873 It is clear from this
| affidavit, made WITHIN day or two, or few days.
after the death of Clark, that De la Croix not
| only believed that the will OF 1918 survived
the clear implication is that he believed that one
| Of these duplicate copies had been destroyed
after the death Of CLARK. 1t further appears
| from this affidavit of De la Cfoig that be was
expressing not only his belief, but the belief OF
| the friends Of Clark.
| Now / think the conclusion Of the Supreme
Court of the United states in the case OF Gaines
| vs. De In Oroix rs to the { fleet which should be
| given to this statement Of his, 10 unanswerabie.
| / think his subsequent testimony given in 1913,
| after controversy had arisen between him and
Mrs. Gainfs g, goes t n nothing as oontrasted with
| his own affidavit made in 1918, and so far from
the statements OF De In Croix contradiotiDg Big
continuation Of his evidence upon this
point, and go far to establish not only that he be-
ieved that the will of 1918 existed after the death
of CLARK, but that be bell we'd it upon sufficient
| evidence. think therefore, that the presump-
ton which uoder the law Of Louisiana arises
from the non.production OF the viii OF lol3, and
it's disappearance, is most satisfactorily made by
| that the will known ~ the will OF 1913 was in
existence after the death OF the testator.
therefore 6rd as a fact that an geographic
will Of Daniel Clark. in which Mrs. Gaines was
recognized bis legitimate child, and with the
| exception OF The legacy to his mother, and some
other ANAL lsgaees was made his universal iega-
tee, was written. signed aud dated by him; that
tt il will was clothes with the requisite and legal
formalities of last will and testament according
to the laws of Louisiana.
Lot the decree, therefore, be, that the prayer OF
the petitioners in the case OF Fuentes ct al,
etc., against Mrs. Myra CLARK Gaines, be rejected
/ now come to decision upon what may be
termed the erect actions, viz: the suits in which
Mrs. Gaines seeks to charge these numerous de-
PENDANTS trustees, and to recover from them
certain real estate, alleging that she was the
legitimate child OF Daniel Ozark and under his
last will and testament his universal legatee. /
have found as o fact upon q fresh eonside alton
of all the evidence. that her allegations 90 to the
| will and her heirship are established. This find
ing carries with it all the consequences which are
ms glossary to establish her title to the property,
and leaves nothing remaining to be considered
but the plea of prescription.
The plea OF the respondents is to the effect
that they derived their title and have possessed
the property in good faith, and that the posses
sion has continued for longer than period of ten
years. They have thus sought to discover the
title from its origin and have sought to stand be
fore the court simply as possessors with what
they say seemed good title, and therefore they
are possessors in good aitb. Ii is claimed by
the solicitor OF the complainant and by his ar
alysis of the Chains OF tile under which the seve
raj defendants hold it, ia shown that the title Of
each and every one of them comes back, Or
traces itse back to the estate of Daniel Clark
through ReIf and Chew as the executors
of the first will, and as the attorneys in fact of
Mary Clark legatee, under the first will. Indeed,
in the supplemental petition OF Fuentes ct al
which has been adopted by all these defeDdan' o
under the agreement on file, they allege at page
4S of the Fuentes case, 160 and 16t OF the marg-
| \ l1..ll 49, Rnlf and fhHtu
were the testementary executors of the said D.
Clark under the will Of 1911, and were also the
| agents and attorneys in fact OF Mary Clark,
mother and sole documentary and legal heir of
the said d. Clark, and as such were the parties
through whom these petitioners derived title TO
| tia property now claimed by tho satd defendant"
1t is not necessary for me to comment upon
the effect of this judicial admission further than
to say that it 10 distinct aVOwai that they Cain
| under Ref and Cew as the executors and attor
| neys in fact under tho first will and this leaves
them in the situation OF having denied what they
were legally bound to know see Gaines Vs.
| Hennen, "a How. 6i5, GIG; Gaines Va. MeusBeaux.
| / Woods, 100. And what they admit in the
| Fuentes case they did know.
| These cases are undistmguishab'e in principle
| from that of Gaines ye. Hennen. That is both
proved and avowed in this case, which WAS ad-
mitted there, viz that the title WAS derived
| from Relf and Chew by the sales under the first
will. such title the Supreme COURT OF the
| United States, in the case of Gaines Vs. Hennen,
Gath of Howard decided WAS an illegal and vicious
title and that the vice OF the title took from the
vendees all pretense Of purchasers or possessors
| in good faith.
| In that case the Supreme Court took pains to
put into their decree after reciting tn convey
ance from Relf and Chew through these interme-
date grantees ands the conveyance to Hennen;
| that the defendant Hennen at the time when he
| purchased the property 30 described and claimed
by him as aforesaid, was bound to take notice of
the circumstances which rendered the acts and
doipgs Of the said Relf and Chewin the premises
| illegal, null and void that the said Hennen
ought to be deemed and held, and is hereby
deemed and hold, to have purchased the prop
erty in question with full notice" etc.
| This view is adhered to in Gaines vs. New Or
leans, 6 Wall, p. -, PIP. 7l6 TIT, where the court
declare that the question Is no longer an open
one.