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

t,rely written, dated and signed by the hand 81
the testatorn On this point of date the test
moay addueed before me is precisely the same az
that before the Supreme Court Of Lousiana o.
the time the will was probated They found IL
sufficient, that is, they must have touna 'hss Inc
will was dated; that the year. month ana Gay
were written by the testator
Agaip the two witnesses who read the Will
we're Mrs. Bmythe and Mr.. Belize asse. MRS.
smythe, at page al, Probate Record, in snswef
his will was in MIR. Clarke's handwriting; 1t was
dated and signed by MIR. Clarke at the time l
read it," At page 143, in answer to the 3zd inter-
rogatory, abe says: ut was dated in July, 1913.
Bellechssse, at page l61, Probate hecora, says
in answer TO ipterrogstory IL:
sSThe last will of Clark, to wit, the will OF 1918,
was legal in form because ii was written wholly
in his (CIsrksl handwriting, and was dated ana
signed by him." These witnesses both testify
that tho will was dated. and one of them adds,
at was dated in July. 1873" The fair meaning
OF their language is that it bore the year,
month and day. and the meaning OF the Ian.
gusge OF Mrs. smythe is that it bore date on
particular day of July. Ammo Dlmni 1913.
II a Jury had found as special verdict that the
will bore date on came day in July. 1913. though
they did not specify what day, so long as being in
July left it the last will of Clark, would not q
court DO bound to give judgment that the will
was dated2 And the testimony OF these two wit
nssses uneonradieted, is on this p9int equivI
lent to special verdict. II Ia proven that The
will bore date on some one of the days in July,
1918, and this il sufficient.
The third objection, that the evidence dis
proves. or fails to prove thas thls WI. ever ed
eipce it WAS not found after the death OF the
teetator the presumption OF law is that it was
destroyed by him for the purpose OF oapoelllng
aud that this presumption has not been rebutted
The testimony which has been read before me
ia in almost eli respects Identical with that adj
duoed before the Supreme Court OF Louisians
N An. 125, 126, 1870, and is there stated With
clearness and fairness by Judge Lea and by the
Supreme Court. as follows:
"In locking for the testimony which might
solve tho question whether such will had ever
been executed or not, reasonable inquirer would
naturally turn for information to those who were
most with the deceased in the latter part of his
life. and especially Git they could be found) to
those who were with him in the last moments OF
his existence when the hand OF death was on
him. such witnesses, IL they had no interest in
dlverting his property into any particular chan
nels, might be considered as the best and most
reliable That could be produced, and it appears to
be precisely testimony of this character that the
petitioner presents in support OF her application,
II appears that Bosfontaine had business rela-
lions with the deceased, which brought him INTO
frequent intercourse with him, and that Tor the
last two days OF his life, and up to the moment OF
hls death, no was with him; that De la Croix and
Bellsc,asse wore intimate personal friends and
that they were with him shortly before his death.
Now these witnesses all concur in stating that
Clark said he had executed will posterior to
that of 1911. They also testify that within q few
months prior TO his death he was making arrange
mens for the disposal of his property by last
will. He called on De Ia Croix to get his consent
to act as executor and also as tutor to his daugh-
ter Myra, expressing his intention OF making
generous provision for her in his will. De Ia
Groix further states that Clark afterwards pre-
scented TO him in his (Olarksl cabinet sealed
packet which he declared to be his last will in
forming him at the same time that in case OF his
death it would be found in q small black trunk
which he had there.
Boiefontaine, who was with Clark whom he
died, says that Clark in his last illness, spoke Of
executing his last will said it was to be found
in room down stairs, in q small black trunk
that he had left the greater portion Of his prop
erty te.his child, Myra that Bellechasse, De Ia
Cro;x and Pilot were to be his executors and
thai about two hours before he died he instructed
his confidential servant, Lubin, that in case OF
to was to be delivered to De Ia Croix, and en-
Joined on him as soon rs he (Clark) was dead, to
be sure and take it to him. He states that
CLARK expressed his satisfaction that he had pro-
vided for his daughter Myra, leaving her all his
estate and that De la Croix had consented to act
as her tutor. He also states that he was present
about fifteen days before Clark's death, when
Clark took from the small black case sealed
package and presented it to De In Oroix, stating
that 1t was his last will, recapitulating some OF
it's provisions, and reminding him of his promise
to act ne tutor to his daughter He further states
that several persons, shortly before Carks death,
had seen the will, and corroborated Clark's
statement AZ to its contents, and that Judge
Pilot, Lynd the notary, the wife of William Har-
per and Bellechasse were among the persons
referred to. "Now," the Judge u quo proceeds,
II think there can be no doubt, setting aside the
testimony of Bellechasse and Mrs. VIM. Harper,
that Clark did execute will shortly before his
death; that the principal object Of making this
will was to recognize rs his daughter the present
applicant, and to make suitable provision for
her that the executors of this will were Pilot,
Bellechasse and De Ia Croix, and that De Ia Croix
was appointed tutor Of bis daughter Myra; that
this will must have been in existence until within
q very short time previous to Cark's death, ii
not after that event. and that CLARK himself died
believing il was in existence.
"That such was the opinion OF De la Croix him
self at the time, is evident from the fact that
twenty -four hours had scarcely elapsed after the
probate of the will of 1911, before he made oath
that he verify believed that Daniel Clark had
made testament posterior to that OK 1911, that
It's existence was known to several PERSONS and
he accordingly applied for and obtained an order
Of the court commanding every notary in the city
to declare whether such document had been de-
posted with him.
If the foregoing facts may be considered as
proved, independent of the testimony of Belle
chase and Mrs VIM. Harper, the additional
testimony of these last named witnesses with
TO the form OF the execution OF the will
and its contents will rest upon basis Of proba-
blity, which must strengthen ii II does not
the conviction of its truth for 1t is to
be remembered that Clark knew how to draw an
Geographic will in due form. having already done
30 in the execution Of 3 previous will, AMI know
ing what WAS necessary to its validity it would be
improbable in the extreme that he would omit
any of the few necessary formallties.
When Bellechasse and Mrs. Harper, there
fore, testify directly to the execution of the
will as having been written, dated and signed
in the proper handwriting of the testator, they
least, probable, and, upon the assumption that
the will was executed, are matters approaching
to certainty Independent Of their testimony; 80
with regard to the appointment OF executors, OF
the tutor and Of the general dispositions OF the
will as described in the petition.
They state Clark did what he tcld others he
intended to do. and what, from the whole tenor
of his conduct, it Was very probable he would do
1t does not appear, however, that all the contents
os the will as sworn to nv Mrs. William Harper