It is impossible to lay down any general rule as to what
constitutes multifariousness in a bill in equity. Every case must
be governed by its own circumstances, and the court must exercise a
sound discretion.
A bill filed against the executors of an estate and all those
who purchased from them, is not, upon that account alone,
multifarious.
Under the Louisiana law, the court of probate has exclusive
jurisdiction in the proof of wills, which includes those disposing
of real as well as personal estate.
In England, equity will not set aside a will for fraud and
imposition, relief being obtainable in other courts.
Although by the general law, as well as the local law of
Louisiana, a will must be proved before a title can be set up under
it, yet a court of equity can so far exercise jurisdiction as to
compel defendants to answer, touching a will alleged to be
spoliated. And it is a matter for grave consideration, whether it
cannot go further and set up the lost will.
Where the heir at law assails the validity of the will by
bringing his action against the devisee or legatee who sets up the
will as his title, the district courts of Louisiana are the proper
tribunals, and the powers of a court of chancery are necessary in
order to discover frauds which are within the knowledge of the
defendants.
Express trusts are abolished in Louisiana by the law of that
state, but that implied trust, which is the creature of equity, has
not been abrogated.
The exercise of chancery jurisdiction by the circuit court of
the United States, sitting in Louisiana, does not introduce any new
or foreign principle. It is only a change of the mode of redressing
wrongs and protecting rights.
This case was a sequel to that which came before the court twice
before, and is reported in
38
U. S. 13 Pet. 404, and
40
U. S. 15 Pet. 9.
It came up again from the Circuit Court of the United States for
the Eastern District of Louisiana, sitting as a court of equity, on
a certificate of a division of opinion in that court, upon the
three following questions:
Page 43 U. S. 620
1. Is the bill multifarious? and have the complainants a right
to sue the defendants jointly in this case?
2. Can the court entertain jurisdiction of this case without
probate of the will set up by the complainants, and which they
charge to have been destroyed or suppressed?
3. Has the court jurisdiction of this case? or does it belong
exclusively to a court of law.
The case was this, as set forth by the complainant, the
defendant not yet having answered the bill.
It is stated with some particularity, because the counsel for
the complainants dwelt strongly upon the injustice that would
follow if such a case (supposed in the argument to be admitted by
the demurrer) should prove remediless in a court of chancery. It is
proper to refer to the report of the argument of the counsel for
the defendants, in which he affirmed that the important facts
alleged to exist by the complainant would be denied and disproved,
if the court should be of opinion that the cause should go on. Some
of the circumstances mentioned came out upon cross-examination.
In the year 1796 there was a French family by the name of
Carriere, residing in New Orleans. One of the daughters was named
Zuline, and about sixteen years of age. A person by the name of De
Grange came there and married her; they continued to live together
for several years, until about the year 1800, when it was reported
that De Grange had another wife living. A separation took place
between him and Zuline. In 1802, she went to New York (where it was
said De Grange's former marriage had been celebrated) to obtain
proof of it, but the registry of marriages having been destroyed,
the proof was not obtained. She then went to Philadelphia, where
Mr. Gardette was living, who was one of the witnesses of the prior
marriage, and confirmed it. Whilst she was there, she had a
daughter, to whom the name of Caroline was given, and who is the
same person spoken of in the proceedings in this suit, by the name
of Caroline Barnes. Clark treated her as his child, and afterwards
placed her to live with his mother.
In 1803, De Grange's first wife came from France to New Orleans,
and he, being there also, was seized and prosecuted for bigamy. He
was arrested and thrown into prison, but effected his escape, and
never afterwards returned. Clark was married to Zuline in
Philadelphia, in the same year, but required the marriage to be
kept secret
Page 43 U. S. 621
until judicial proof could be obtained of the nullity of her
marriage with De Grange.
In 1805, Clark having returned to New Orleans and established
Zuline in a separate establishment from his own, the commercial
firm of Davis & Harper was formed, and rested almost entirely
upon the credit furnished by Clark. In 1806, Zuline was about to
give birth to another child, and, at the instance of Clark,
arrangements were made by Davis for its being received into his
(Davis') family. It proved to be a daughter, and was called Myra.
She was suckled by Mrs. Harper, who put out an infant of her own to
enable her to do so. Clark treated her as his daughter, furnished
her with expensive clothing and playthings, and purchased a servant
for her use.
Shortly afterwards, Clark became a member of Congress, and was
absent from New Orleans for a considerable length of time. During
his absence, a report reached New Orleans that he was about to
contract a marriage at the north, and Zuline, whose feelings were
fretted and irritated by his refusal to promulgate their marriage,
sailed for Philadelphia, to obtain the legal proofs of her own
marriage. When she arrived there, she was told that the priest who
had performed the ceremony, was gone to Ireland. Being informed by
counsel, whom she consulted, that she would not be able to
establish the validity of her marriage, she determined to have no
further communication with Mr. Clark, and soon afterwards married
Mr. Gardette, of Philadelphia.
Clark returned to New Orleans. In 1811, being about to visit
Philadelphia on a special emergency, he made a provisional will, as
follows:
"Daniel Clark. In the name of God: I, Daniel Clark, of New
Orleans, do make this my last will and testament."
"
In primis. I order that all my just debts be
paid."
"Second. I leave and bequeath unto my mother, Mary Clark, now of
Germantown, in the State of Pennsylvania, all the estate, whether
real or personal, which I may die possessed of."
"Third. I hereby nominate my friend, Richard Relf and Beverly
Chew, my executors, with power to settle everything relating to my
estate."
"
Ne varietur. New Orleans, 20 May, 1811."
Signed,
"J. PITOT,
Judge"
"DANIEL CLARK"
Page 43 U. S. 622
About the time of executing this will, he conveyed to Joseph
Bellechasse about fifty lots in the City of New Orleans, in the
suburbs or faubourg St. John, near the bayou of that name, in fee
simple, with the confidential understanding that they were to
remain under his control for the use and benefit of his daughter
Myra.
On 27 May, 1811, Clark, being so far upon his voyage, wrote to
his friend Mr. Davis, the following letter:
"Dear Sir: We are preparing to put to sea, and I hope I shall
have a pleasant passage, my stay will be but short in Philadelphia
unless a forced one. In case of any misfortune to me, be pleased to
deliver the enclosed to General Hampton; I count on him as a man of
honor to pay the amount of notes mentioned in my letter to him,
which in that case you will dispose of as I have directed. It will
naturally strike you that the letter to the general is to be
delivered only in case of misfortune to me. Remember me kindly to
Mrs. Davis and all your family."
"Yours,"
"[Signed] DANIEL CLARK"
"P.S. Of the enclosed letter you will say _____ unless in case
of accident, when you may communicate it to Chew and Relf."
"S. B. Davis."
The direction alluded to in the above, was to place the amount
of the notes to the best advantage for his daughter Myra's
interest. Having arrived safely at Philadelphia and remained there
until July, he addressed the following letter to Mr. Davis, on the
eve of his sailing for New Orleans, on his return:
"Philadelphia, 12 July, 1811"
"My dear Sir: In case of any accident or misfortune to me, be
pleased to open the letter addressed to me, which accompanies this,
and act with respect to the enclosures as I directed you with
respect to the other affairs committed to your charge before
leaving New Orleans. To account in a satisfactory manner to the
person committed to your honor, will, I flatter myself, be done by
you when she is able to manage her own affairs; until when, I
commit her under God to your protection. I expect to said tomorrow
for New Orleans in the ship
Ohio, and do not wish to risk
these papers at sea."
"Yours,"
"[Signed] DANIEL CLARK"
"S. B. Davis, Esq. "
Page 43 U. S. 623
Upon Clark's safe arrival in New Orleans, Davis returned to him
the package enclosed in the above letter, and also the letter
addressed to General Hampton in the letter which he had written
from the Balize.
Upon Clark's return, Bellechasse also offered to reconvey the
lots, which Clark declined, and Bellechasse continued to hold them
until Clark's death, when he conveyed them in equal portions to
Myra and Caroline, being influenced to include the latter by the
representations of some of Clark's friends.
In 1812, Davis removed to the north with his family, carrying
with him Myra, who passed for his daughter, and bore his name. He
had then in his hands funds of Clark to the amount of $2,360, the
interest of which, by arrangement between them, was to be applied
towards her education.
In 1813, Clark died. It was alleged that before his death he
made an olographic will, leaving the bulk of his fortune to his
daughter Myra. The circumstances under which he is represented to
have made it, are thus detailed by some of the witnesses.
Dusuau de la Croix says,
"That he was very intimate with the late Daniel Clark for a
great many years, and up to the time of his death; that some few
months previous to the death of Daniel Clark, he visited deponent
on his plantation and expressed a wish that he, deponent, should
become his executor; deponent at first refused, but after a little,
from the persuasion of said Clark, he consented to become his
executor; that in this conversation, Clark spoke of a young female
then in the family of Captain Davis named Myra, that said Clark
expressed a wish that deponent should become tutor to this female,
and that she should be sent to France for her education, and that
Mr. Clark would leave her a sufficient fortune to do away with the
stain of her birth; that a month or two after this conversation at
the plantation of deponent, he, deponent, called to see Clark at
his house on the Bayou road, he there found him in his cabinet, and
had just sealed up a packet, the superscription of which was as
follows: 'pour etre ouvert en cas de mort.' Clark threw it down in
the presence of deponent and told him that it contained his last
will and some other papers which would be of service; deponent did
not see the will, nor does he know anything about its contents; he
only saw the packet with the superscription on it as before
related. "
Page 43 U. S. 624
Bellechasse says:
"A very short time before the sickness that ended in his death,
he, Clark, conversed with us about his said daughter Myra in the
paternal and affectionate terms as theretofore. He told us that he
had completed and finished his last will. He, Clark, therefore took
from a small black case his said last will, and gave it open to me
and Judge Pitot to look at and examine. It was wholly written in
the handwriting of said Daniel Clark, and it was dated and signed
by the said Clark in his own handwriting. Pitot, De la Croix, and
myself were the executors named in it, and in it the said Myra was
declared to be his legitimate daughter, and the heiress of all his
estate. Some short time afterwards I called to see him, Clark, and
learned from said Relf that the said Clark was sick in bed, too
sick to be seen by me; however, I, indignant at an attempt to
prevent me from seeing my friend, pressed forward into his room.
He, said Clark, took him by the hand, and with affectionate
reprehension said, 'How is it, Bellechasse, that you have not come
to see me before since my sickness? I told Relf to send for you.'
My answer was that I had received no such message or account
whatever of his sickness from Relf. I said further, 'My friend, you
know that on various occasions I have been your physician, and on
this occasion I wish to be so again.' He looked at me and squeezed
my hand. Fearful of oppressing him, I retired and told Relf that I
would remain to attend occasionally to Clark. Relf said there was
no occasion for it, that the doctor or doctors had ordered that he,
Clark, should be kept as quiet as possible, and not be allowed to
talk. I expressed apprehension for the situation of Clark, but Relf
expressed a different opinion; and on his, Relf, promising to send
for me if there should appear to be any danger, I departed. On the
next day, without receiving any message from Relf, I went and found
Clark dead."
Mrs. Harper (afterwards Mrs. Smyth) says:
"In 1813, some few months before Mr. Clark's death, he told me
he felt he ought no longer to defer securing his estate to his
daughter Myra by a last will."
"Near this period, he stopped one day at my house, and said to
me he was on his way to the plantation of Chevalier de la Croix,
for the purpose of requesting him to be named in his will one of
his executors, and tutor to his daughter Myra. On his return, he
told me with much apparent gratification that De la Croix had
consented to serve, and that Judge Pitot and Col. Bellechasse had
consented to
Page 43 U. S. 625
be the other executors. About this time he told me he had
commenced making his last will. Between this period and the time he
brought his last will to my house, Mr. Clark spoke very often of
being engaged in making his last will; he always spoke of it in
connection with his only and beloved daughter Myra; said he was
making it for her sake, to make her his sole heiress, and to insure
her being educated according to his wishes. At the times Mr. Clark
spoke of being engaged in making his last will, he told me over and
over again, what would constitute its contents; that he should in
it acknowledge the said Myra as his legitimate daughter, and
bequeath all his estate to her, but direct that an annuity of
$2,000 a year should be paid his mother during her life, and an
annuity of $500 a year to a young female at the north of the United
States, named Caroline De Grange, till her majority; then it was to
cease, and $5,000 were to be paid her as a legacy, and that he
would direct that one year after the settlement of his estate
$5,000 should be paid to a son of Judge Pitot, of New Orleans, as a
legacy; at the same period $5,000 as a legacy to a son of Mr. Du
Buys, of New Orleans; that his slave Lubin was to be freed, and a
maintenance provided for him. In his conversations respecting his
being engaged in making his last will, he talked a good deal about
the plan of education to be laid down in his will for his daughter
Myra; he expressed frequently his satisfaction that the Chevalier
de la Croix would be the tutor in his will; he often spoke with
earnestness of the moral benefit to his daughter Myra from being
acknowledged by him in his last will as his legitimate daughter,
and he often spoke of the happiness it would give his mother; he
expressed the most extravagant pride and ambition for her; he would
frequently use the emphatic language, that he was making her a bill
of rights; he mentioned at these times, that this would contain a
complete inventory of all his estate, and explanations of all his
business, so as both to render the administration on his estate
plain and easy to his friends, Chevalier de la Croix, Judge Pitot,
and Col. Bellechasse, and as a safeguard to his estate, in case he
should not live long enough to dissolve and adjust all his
pecuniary relations with others. About four weeks before his death,
Mr. Clark brought this will to my house; as he came in, he said,
'Now my will is finished,' my estate is secured to Myra beyond
human contingency,"
"now if I die tomorrow, she will go forth to society, to my
relations, to my mother, acknowledged by
Page 43 U. S. 626
me, in my last will, as my legitimate daughter, and will be
educated according to my minutest wishes, under the superintendence
of the Chevalier de la Croix, and her interests will be under the
care of Chevalier de la Croix, Judge Pitot, and Col. Bellechasse;
here is the charter of her rights, it is now completely finished,
and I have brought it to you to read;"
he left it in my possession until the next day; I read it
deliberately from beginning to end. In this will, Mr. Clark
acknowledged Myra Clark as his legitimate daughter and only heir,
designating her as then living in the family of S. B. Davis; Mr.
Clark in this will bequeathed all his estate to the said Myra, but
directed that an annuity of $2,000 should be paid to his mother
during her (his mother's) life, and an annuity of $500 should be
paid to Caroline De Grange, till she arrived at majority, when the
annuity was to cease, and $5,000 were to be paid her as a legacy.
He directed that one year after his estate was settled, $5,000
should be paid as a legacy to a son of Judge Pitot, of New Orleans,
and that one year after his estate was settled $5,000 should be
paid as a legacy to a son of Mr. Du Buys, of New Orleans; he
provided for the freedom and maintenance of his slave Lubin; he
appointed Mr. Dusuau de la Croix tutor to his daughter Myra; he
gave very extensive instructions in regard to her education; this
will contained an inventory of his estate, and explanations of his
business relations; he appointed Mr. Dusuau de la Croix, James
Pitot, and D. D. Bellechasse, executors; the whole of this will was
in Mr. Clark's handwriting; it was dated in July, 1813, and was
signed by him; it was an olographic will; it was dated in July,
1813, and was signed by him; I was well acquainted with said
Clark's handwriting. The last time Mr. Clark spoke to me about his
daughter and his last will, was on the day he came out for the last
time (as far as I know) from his house, which was the last time I
saw him; he came to my house at noon, complained of feeling unwell,
asked leave to have prepared for him a bowl of tea; he made his
visit of about two hours' duration, talking the whole time of his
daughter Myra, and his last will; he said a burden of solicitude
was removed from his mind from the time he had secured to her his
estate beyond accident, by finishing his last will; he dwelt upon
the moral benefit to her in society from being acknowledged by him
in his last will as his legitimate daughter; he talked about her
education, said it would be the greatest boon from his God to live
to bring her up, but what was next to
Page 43 U. S. 627
that were his comprehensive instructions in his will in regard
to her education, and her being committed to the care of the
Chevalier de la Croix, who would be a parent to her.
After Clark's death, the will of 1811 was presented to the court
of probate, and proved; letters testamentary were issued to the
executors; a power of attorney was given to them by Mr. Clark's
mother, and various pieces of property were sold under it and under
the will.
In 1832, Myra married William Wallace Whitney, and about the
time of her marriage became acquainted with her true name and
parentage, and in 1836 filed a joint bill, with her husband, in the
Circuit Court of the United States for the District of Louisiana
against Relf and Chew, the executors in the will of 1811, the heirs
of Mary Clark, and all the purchasers and occupants of the estate
of which Clark died in possession, claiming to be the heir and
devisee of Clark, and calling upon them all to account for the
rents and profits of the several portions of the estate. The bill
charged that the will of 1813 was fraudulently suppressed, that its
existence and suppression were notorious, and that all the
purchasers did, in their consciences, believe that the will of 1811
had been fraudulently admitted to probate. In addition to the
prayer for an account, it prayed for general relief.
In the progress of the suit, Whitney having died, Edmund P.
Gaines, sometime afterwards, married the widow and became a party
to the suit.
The defendants all demurred, but filed separate demurrers.
Barnes and wife demurred upon six grounds:
1. The want of equity in the bill.
3. That there existed a complete remedy at law.
3. Multifariousness and misjoinder.
4. That the will of 1813 was not probated.
5. That forced heirship gave title to but one-third, which was
recoverable at law.
6. That the New Orleans and Carrollton Railroad Company, with
whom they were conjoined, was not shown to be a corporation.
Chew and Relf demurred generally, and also pleaded to the
jurisdiction of the court.
Upon the argument of the demurrers, the three questions arose
which are mentioned at the commencement of this statement, and
Page 43 U. S. 628
upon which the court was divided. These questions were the
subject for consideration by this Court.
Page 43 U. S. 640
MR. JUSTICE McLEAN delivered the opinion of the Court.
This case is brought before the court from the Eastern District
of Louisiana, by a division of the judges on certain points, which
are certified under the act of Congress.
The complainants in their bill state that Daniel Clark, late of
the City of New Orleans, in the State of Louisiana, in the year
1813 died, seized in fee-simple, or otherwise well entitled to and
lawfully possessed of, in the district aforesaid, a large estate,
real and personal, consisting of plantations, slaves, debts due,
and other property, all of which is described in the bill.
That the said Myra was the only legitimate child of the said
Clark. That about the month of July, 1813, he made his last will
and testament, according to law, and in which he devised to his
daughter Myra all his estate, real and personal, except certain
bequests named. Col. Joseph Deville, Degontine Bellachasse, James
Pitot, and Chevalier Dusuau de la Croix were appointed executors of
the will, and the said Chevalier de la Croix was also appointed
tutor to the said Myra, who was then about seven years of age. In a
few days after making the will the said Clark died.
From her birth, the said Myra was placed, by her father, in the
family of Samuel B. Davis, who at the time resided in New Orleans,
but in 1812 removed to Philadelphia, where the said Myra resided
until her first marriage, being ignorant of her rights and her
parentage.
In the year 1811, being about to make a journey to Philadelphia,
and fearing some embarrassments from a partnership transaction, the
said Clark conveyed property to the said Samuel B. Davis and
others, to the amount of several hundred thousand dollars to be
held in trust for the use of the said Myra. And about the same time
he made a will devising to his mother, then residing out of
Louisiana, his property, and appointed Richard Relf and Beverley
Chew, two of the defendants, his executors. That afterwards, on his
return from Philadelphia, he received back a portion of the
property conveyed in trust as aforesaid; and by the will of 1813
revoked that of 1811.
Page 43 U. S. 641
The bill charges that immediately upon the death of the said
Clark, the will of 1813 came into the possession of the said Relf,
who fraudulently concealed, suppressed, or destroyed the same, and
did substitute in its place the revoked will of 1811; that the will
of 1813 was never afterwards seen except by the said Relf and Chew,
and their confederates.
It is further charged that the said Relf fraudulently set up the
revoked will of 1811, and obtained probate of the same; that he,
with the said Chew, being sworn as executors, fraudulently took
possession of the real and personal estate of the deceased, and
also his title papers and books. That they appropriated to their
own use large sums of money and a large amount of property of the
estate, and in combination with the defendants named, who "had some
knowledge, notice, information, belief or suspicion, or reason for
belief or suspicion and did believe," so that the said Relf and
Chew had acted fraudulently in setting up and proving the will of
1811. And the complainants pray that effect may be given to the
will of 1813, and that the will of 1811 may be revoked, and that
the defendants may be decreed to deliver up possession of the lands
purchased as aforesaid, and account for the rents &c., and that
the executors may be decreed to account. The complainants also
represent that the said Myra is the only heir-at-law of the said
Clark, and that his property descended to her &c. In addition
to the special relief asked, the complainants pray for "such other
and further relief in the premises, as the nature of the case may
require."
To the bill, several of the defendants filed a special demurrer.
On the argument of the demurrer, the opinions of the judges were
opposed on the following points:
1. Is the bill multifarious? and have the complainants a right
to sue the defendants jointly in this case.
2. Can the court entertain jurisdiction of this case, without
probate of the will set up by the complainants, and which they
charge to have been destroyed or suppressed.
3. Has the court jurisdiction of this case, or does it belong
exclusively to a court of law. The demurrer is not before the
court, but the points certified. In considering these points, all
the facts stated in the bill are admitted.
Whether the bill be multifarious or not is the first
inquiry.
The complainants have made defendants, the executors named in
the will of 1811, and all who have come to the possession of
property
Page 43 U. S. 642
real and personal, by purchase or otherwise, which belonged to
Daniel Clark at the time of his death. That a bill which is
multifarious may be demurred to for that cause is a general
principle; but what shall constitute multifariousness is a matter
about which there is a great diversity of opinion. In general
terms, a bill is said to be multifarious, which seeks to enforce
against different individuals, demands which are wholly
disconnected. In illustration of this, it is said, if an estate be
sold in lots to different persons, the purchasers could not join in
exhibiting one bill against the vendor for a specific performance.
Nor could the vendor file a bill for a specific performance against
all the purchasers. The contracts of purchase being distinct, in no
way connected with each other, a bill for a specific execution,
whether filed by the vendor or vendees, must be limited to one
contract. It has been decided that an author cannot file a joint
bill against several booksellers for selling the same spurious
edition of his work, as there is no privity between them. But it
has been ruled that a bill may be sustained by the owner of a sole
fishery against several persons who claimed under distinct rights.
The only difference between these cases would seem to be, that the
right of fishery was necessarily more limited than that of
authorship. And how this should cause any difference of principle
between the cases is not easily perceived.
It is well remarked by Lord Cottenham, in
Campbell v.
Mackay, 7 Sim. 564, and in 1 Myl. & C. 603,
"to lay down any rule, applicable universally, or to say, what
constitutes multifariousness, as an abstract proposition, is, upon
the authorities, utterly impossible."
Every case must be governed by its own circumstances, and as
these are as diversified as the names of the parties, the court
must exercise a sound discretion on the subject. Whilst parties
should not be subjected to expense and inconvenience, in litigating
matters in which they have no interest, multiplicity of suits
should be avoided, by uniting in one bill all who have an interest
in the principal matter in controversy, though the interests may
have arisen under distinct contracts.
In a course of reasoning in the above-cited case, Lord Cottenham
observes
"If, for instance, a father executed three deeds, all vesting
property in the same trustees, and upon similar trusts, for the
benefit of his children, although the instruments and the parties
beneficially interested under all of them were the same, it would
be necessary to have as many suits as there were instruments. That
is a proposition
Page 43 U. S. 643
(he says) to which I do not assent. It would indeed be extremely
mischievous if such a rule were established in point of law. No
possible advantage could be gained by it, and it would lead to a
multiplication of suits, in cases where it could answer no purpose
to have the subject matter of contest split up into a variety of
separate bills."
The same doctrine is found in Story's Equity Pleading sec. 534;
Attorney General v. Cradock, 3 Myl. & C., 85; 7 Sim.
241, 254.
In the above case against Cradock, the chancellor says
"The object of the rule against multifariousness is to protect a
defendant from unnecessary expense; but it would be a great
perversion of that rule, if it were to impose upon the plaintiffs,
and all the other defendants, two suits instead of one."
The bill prays that the defendants, Relf and Chew, may be
decreed to account for moneys &c., which came into their hands,
as executors, under the will of 1811, and that the other
defendants, who purchased from them real and personal property, may
be compelled to surrender the same, and account, &c., on the
ground that they had notice of the fraud of the executors.
The right of the complainant, Myra, must be sustained under the
will of 1813, or as heir-at-law of Daniel Clark. The defendants
claim mediately or immediately under the will of 1811, although
their purchases were made at different times and for distinct
parcels of the property. They have a common source of title, but no
common interest in their purchases. And the question arises on this
state of facts, whether there is misjoinder or multifariousness in
the bill, which makes the defendants parties.
On the part of the complainants there is no misjoinder, whether
the claim be as devisee or heir-at-law. And the main ground of the
defense, the validity of the will of 1811, and the proceedings
under it, is common to all the defendants. Their interests may be
of greater or less extent, but that constitutes a difference in
degree only, and not in principle. There can be no doubt that a
bill might have been filed against each of the defendants, but the
question is whether they may not all be included in the same
bill.
The facts of the purchase, including notice, may be peculiar to
each defendant, but these may be ascertained without inconvenience
or expense to co-defendants. In every fact which goes to impair or
establish the authority of the executors, all the defendants are
alike interested. In its present form, the bill avoids multiplicity
of suits
Page 43 U. S. 644
without subjecting the defendants to inconvenience or
unreasonable expense. There are, however, two exceptions to this
remark, one of which relates to Caroline Barnes and her husband.
She is represented to be a devisee in the will of 1813, and
consequently can have no common interest under the will of 1811.
The other exception is the prayer of the bill that the executors
may account. In the rendition of this account the other defendants
have no interest, and such a matter therefore ought not to be
connected with the general objects of the bill. The bill in these
respects may be so amended in the circuit court as to avoid both
the exceptions.
We come now to inquire
"whether the court can entertain jurisdiction of this case,
without probate of the will set up by the complainants, and which
they charge to have been destroyed or suppressed."
The bill charges that the will of 1813 was fraudulently
suppressed or destroyed by Relf, and that he fraudulently procured
the will of 1811, in which he and Chew were named as executors, to
be provided.
It is contended that the court of probate in Louisiana has
exclusive jurisdiction of the probate of wills, and that a court of
chancery can exercise no jurisdiction in such a case.
In the Code of Practice, art. 924, it is declared, that "courts
of probate have the exclusive power: 1. To open and receive the
proof of last wills and testaments, and to order the execution and
recording them." There are thirteen other specifications which need
not be named. By art. 925, it is declared that
"the courts of probate shall have no jurisdiction except in the
cases enumerated in the preceding article, or in those which shall
be mentioned in the remaining part of this title."
In regard "to the opening and proving of wills," after providing
where application for probate shall be made, and the mode, the
following articles are adopted:
"Art. 934. If the will be contained in a sealed packet, the
judge shall order the opening of it at the time appointed by him,
and shall then proceed to the proof of the will."
"Art. 936. If the petitioner alleges under oath in his petition
that he is informed that the will of the deceased, the opening of
which and its proof and execution are prayed for, is deposited in
the hands of a notary or any other person, the judge shall issue an
order to such notary or other person, directing him to produce the
will or the packet containing it, at a certain time to be
mentioned, that it
Page 43 U. S. 645
may be opened and proved, or that the execution of it may be
ordered."
"Art. 937. If the notary or other individual to whom the said
order is directed, refuses to obey it, the judge shall issue an
order to arrest him, and if he does not adduce good reasons for not
producing the will, shall commit him to prison until he produces
it; and he shall be answerable in damages to such persons as may
suffer from his refusal."
From the above provisions it is clear that, in Louisiana, the
court of probates has exclusive jurisdiction in the proof of wills,
and that its jurisdiction is not limited, like the Ecclesiastical
Court in England, to wills which dispose of personal property. Has
a court of equity power to set up a spoliated will and carry it
into effect?
Formerly it was a point on which doubts were entertained,
whether courts of equity could not relieve against a will
fraudulently obtained. And there are cases where chancery has
exercised such a jurisdiction.
Maundy v. Maundy, 1 Ch. 66;
Welly v. Thornagh, Pr.Ch. 123;
Goss v. Tracy, 1
P.Wms. 287; 2 Vern. 700. In other cases such a jurisdiction has
been disclaimed though the fraud was fully established, as in
Roberts v. Wynne, 1 Ch. 125;
Archer v. Moss, 2
Vern. 8. In another class of cases, the fraudulent actor has been
held a trustee for the party injured.
Herbert v. Lawnes, 1
Ch. 13;
Thynn v. Thynn, 1 Vern. 296;
Devenish v.
Banes, Pr.Ch. 3;
Barnesly v. Powell, 1 Ves. 287.
These cases present no very satisfactory result as to the question
under consideration. But since the decision of
Kenrick v.
Bransby, 3 Bro.P.C. 358, and
Webb v. Cleverden, 2
Atk. 424, it seems to be considered as settled in England that
equity will not set aside a will for fraud and imposition. The
reason assigned is, where personal estate is disposed of by a
fraudulent will, relief may be had in the ecclesiastical court, and
at law, on a devise of real property.
Bennett v. Vade, 2
Atk. 324; 3
id. 17;
Gingoll v. Horne, 9 Sim. 539;
Jones v. Jones, 3 Meriv. 171.
In the last case, the Master of the Rolls says
"It is impossible that at this time of day it can be made a
serious question, whether it be in this court that the validity of
a will, either of real or personal estate, is to be
determined."
In cases of fraud, equity has a concurrent jurisdiction with a
court of law, but in regard to a will charged to have been obtained
through fraud, this rule does not hold. It may be difficult to
assign any very
Page 43 U. S. 646
satisfactory reason for this exception. The exclusive
jurisdiction over the probate of wills is vested in another
tribunal is the only one that can be given.
By art. 1637 of the Civil Code, it is declared that "no
testament can have effect unless it has been presented to the
judge," &c. And in
Clappier v. Banks, 11 La. 593, it
is held that a will alleged to be lost or destroyed and which has
never been proved cannot be set up as evidence of title in an
action of revendication.
In
Armstrong v. Administrators of
Kosciusko, 12 Wheat. 169, this Court held that an
action for a legacy could not be sustained under a will which had
not been proved in this country before a court of probate, though
it may have been effective, as a will in the foreign country where
it was made.
In
Tarver v.
Tarver, 9 Pet. 180, one of the objects of the bill
being to set aside the probate of a will, the Court said,
"the bill cannot be sustained for the purpose of avoiding the
probate. That should have been done, if at all, by an appeal from
the court of probate, according to the provisions of the law of
Alabama."
The American decisions on this subject have followed the English
authorities. And a deliberate consideration of the question leads
us to say that both the general and local law require the will of
1813 to be proved before any title can be set up under it. But this
result does not authorize a negative answer to the second point. We
think, under the circumstances, that the complainants are entitled
to full and explicit answers from the defendants, in regard to the
above wills. These answers being obtained may be used as evidence
before the court of probate to establish the will of 1813 and
revoke that of 1811.
In order that one complainants may have the means of making, if
they shall see fit, a formal application to the probate court, for
the proof of the last will and the revocation of the first, having
the answers of the executors, jurisdiction as to this matter may be
sustained. And, indeed, circumstances may arise, on this part of
the case, which shall require a more definite and efficient action
by the circuit court. For if the probate court shall refuse to take
jurisdiction, from a defect of power to bring the parties before
it, lapse of time, or on any other ground, and there shall be no
remedy in the higher courts of the state, it may become the duty of
the circuit court, having the parties before it, to require them to
go before the court of probates, and consent to the proof of the
will of 1813 and the revocation
Page 43 U. S. 647
of that of 1811. And should this procedure fail to procure the
requisite action on both wills, it will be a matter for grave
consideration, whether the inherent powers of a court of chancery
may not afford a remedy where the right is clear, by establishing
the will of 1813. In the case of
Barnesly v. Powell, 1
Ves.Sr. 119, 284, 287, above cited, Lord Hardwicke decreed, that
the defendant should consent, in the ecclesiastical court, to the
revocation of the will in controversy and the granting of
administration &c. If the emergencies of the case shall require
such a course as above indicated, it will not be without the
sanction of Louisiana law. The twenty-first article of the Civil
Code declares that
"in civil matters, where there is no express law, the judge is
bound to proceed and decide according to equity. To decide
equitably, an appeal is to be made to natural law and reason, or
received usages where positive law is silent."
This view seemed to be necessary to show on what ground and for
what purpose jurisdiction may be exercised in reference to the will
of 1813, though it has not been admitted to probate.
The third point is, "has the court jurisdiction in this case, or
does it belong exclusively to a court of law?"
Much that has been said in relation to jurisdiction on the
second point, equally applies to this one. Indeed, they might have
been considered under the same general head.
The bill is inartificially drawn, and, to reach its main
objects, may require amendment in the circuit court. It presents
the right of the complainants in two aspects:
1. Under the will of 1813.
2. As heir-at-law of the deceased.
The first has been examined, and we will now consider the
second.
In prosecuting their rights as heir-at-law by the complainants,
no probate of the will of 1813 will be required. The complainants
must rest upon their heirship of the said Myra, the fraud charged
against the executors, in setting up and proving the will of 1811,
and notice of such fraud by the purchasers. In this form of
procedure, the will of 1811 is brought before the court
collaterally. It is not an action of nullity, but a proceeding
which may enable the court to give the proper relief without
decreeing the revocation of the will. Such a proceeding at law in
regard to real estate is one of ordinary occurrence in England. And
it is upon the ground that such a remedy is plain and adequate,
that equity will not give relief. There can be no doubt, as between
the heir-at-law and devisee, in ordinary
Page 43 U. S. 648
cases, the proper remedy is to be found in a court of law.
Without enlarging on this point, at present, we will refer to the
doctrine on this subject as established by the Louisiana courts.
The case of
O'Donagan v. Knox, 11 La. 384, was
"an heir-at-law claiming a share of the succession of her
deceased sister, who was the wife of the defendant, who holds
possession of it under a will, as instituted heir and universal
legatee."
The defendant pleaded to the jurisdiction of the district court,
on the ground that the court of probates for the parish St. Landry
had exclusive jurisdiction of the matters and things set up in the
petition.
The district judge held,
"that as the will sought to be annulled had been admitted to
probate, and ordered to be executed, the court had no jurisdiction,
but that the probate court had exclusive jurisdiction of the
case."
After stating the above decision of the district court, the
supreme court said,
"The plaintiff sets up a claim under the law of inheritance of
lands, slaves, and a variety of movable property; that these are
proper subjects for the exercise of the jurisdiction of district
courts cannot be doubted. But the petitioner proceeds further, and
alleges the nullity of the will, which constitutes the very title
under which the defendant holds the property in controversy. Before
what court then must the validity of this will be tested?"
The court considered the jurisdiction of the court of probates,
and then proceed to say
"It appears that the jurisdiction of the court of probates is
limited to claims against successions for money, and that all
claims for real property appertain to the ordinary tribunals, and
are denied to courts of probate. The plaintiff in this case was,
therefore, compelled, in suing for the property of the succession,
to seek redress in the district court, and whether she attacked the
will or the defendant set it up as his title to the property, the
court having cognizance of the subject must of necessity examine
into its legal effect."
"When in an action of revendication a testament with probate
becomes a subject of controversy, it will surely not be contended,"
said the court,
"that a court of ordinary jurisdiction, having cognizance of the
principal matter, shall suspend its proceedings until another court
of limited powers shall pronounce upon the subject. . . . If the
ordinary courts should examine into the validity of testaments,
drawn in controversy before them, they will do no more than we have
often said a court of limited jurisdiction may do, even in relation
to a question it could not directly entertain."
The court cites
Page 43 U. S. 649
Lewis' heirs v. His Executors, 5 La. 387, and say there
is no conflict, as indeed there is none, between that case and the
one before it. It says that in the case before it, the functions of
the executor had expired, the probate of the will had taken effect,
and the devisee had entered into possession under it. The decision
of the district court was reversed on the ground that it had
jurisdiction of the case.
The above doctrine is fully affirmed in
Robert v. Allier's
Agent, 17 La. 15. "On the question of jurisdiction arising
from the state of the case, we understand," said the court,
"the distinction repeatedly made by this court to be that
whenever the validity or legality of a will is attacked and put at
issue (as in the present case) at the time that an order for its
execution is applied for or after it has been regularly probated
and ordered to be executed, but previous to the heirs' or legatees'
coming into possession of the estate under it, courts of probate
alone have jurisdiction to declare it void. . . . But when an
action of revendication is instituted by an heir-at-law, against
the testamentary heir or universal legatee who has been put in
possession of the estate, and who sets up the will as his title to
the property, district courts are the proper tribunals in which
suits must be brought."
6 Mart. N.S. 263; 2 La. 23.
The functions of the executors under the will of 1811 have long
since terminated, and the property of the deceased, both real and
personal, has passed into the hands of purchasers. If the
heir-at-law and the devisee were the only litigant parties, a suit
at common law might afford an adequate remedy. But the controversy
is rendered complicated by the numerous parties and the various
circumstances under which their purchases were made. Besides, many
facts essential to the complainant's rights are within the
knowledge of the defendants, and may be proved only by their
answers. Of this character is the fraud charged against the
executors in proving the will and acting under it, and the notice
of such fraud before their purchase, alleged against the other
defendants.
If the fraud shall be established against the executors, and a
notice of the fraud by the other defendants, they must be
considered, though the sales have the forms of law, as holding the
property in trust for the complainants. Under these circumstances,
a suit at law could not give adequate relief. A surrender of papers
and a relinquishment of title may become necessary. The powers of a
court of chancery,
Page 43 U. S. 650
in this view, are required to do complete justice between the
parties.
This remedy under the Louisiana law and before the Louisiana
courts of ordinary jurisdiction would be undoubted. For although
those courts cannot annul the probate of a will, when presented
collaterally, as a muniment of title, they inquire into its
validity. Under the peculiar system of that state, the forms of
procedure, being conformable to the civil law, are the same in all
cases. But the circuit court of the United States, exercising
jurisdiction in Louisiana, as in every other state, preserves
distinct the common law and chancery powers. In either the state or
federal court, the relief is the same; the difference consists only
in the mode of giving it.
It is insisted that trusts are abolished by the Louisiana code,
and that consequently that great branch of equity jurisdiction
cannot be exercised in that state.
Art. 1507 of the Civil Code declares
"That substitutions and
fidei commissa are and remain
prohibited. . . . Every disposition by which the donee, the heir or
legatee, is charged to preserve for, or to return a thing to a
third person, is null, even with regard to the donee, the
instituted heir or the legatee,"
&c.
This abolishes express trusts, but it does not reach nor affect
that trust which the law implies from the fraud of an individual
who has, against conscience and right, possessed himself of
another's property. In such a case, the Louisiana law affords
redress as speedily and amply as the law of any other state. There
is therefore no foundation for the allegation that an implied
trust, which is the creature of equity, has been abrogated in
Louisiana. Under another name, it is preserved there in its full
vigor and effect. Without this principle, justice could not be
administered. One man possesses himself wrongfully and fraudulently
of the property of another; in equity, he holds such property in
trust, for the rightful owner.
In answer to the objection that the validity of the will of
1811, collaterally, can only be tested by an action at law and on
an issue
devisavit vel non, it may be said that such an
issue may be directed by the circuit court.
Complaint is made that the federal government has imposed a
foreign law upon Louisiana. There is no ground for this complaint.
The courts of the United States have involved no new or foreign
principle in Louisiana. In deciding controversies in that state,
the local law governs, the same as in every other state. Believing
that
Page 43 U. S. 651
the mode of proceeding there in the state courts was adequate to
all the purposes of justice, and knowing with what pertinacity even
forms are adhered to, I was averse to any change of the practice in
the federal courts. But I was overruled, and I see in the change
only a change of mode which produces uniformity in the federal
courts throughout the Union. No right is jeoparded by this, and to
say the least, wrongs are as well redressed and rights as well
protected by the forms of chancery as by the forms of the civil
law.
From the foregoing considerations, the Court answers the first
point certified in the affirmative, subject to the amendments of
the bill, as suggested. And it answers the second and third points,
with the qualifications stated, also in the affirmative.
MR. JUSTICE CATRON.
I agree the points certified must be answered favorably to the
complainants, but I do not altogether agree with the reasoning that
has led a majority of my brethren to this conclusion.
The answer to the second question controls the answers to the
others; it is
"Can the circuit court entertain jurisdiction of this case
without probate of the will set up by the complainants, and which
they charge to have been destroyed or suppressed?"
The will of 1813, cannot be set up, without a destruction of the
will of 1811; this will has been duly proved, and stands as a title
to the succession of the estate of Daniel Clark; nor can the
circuit court of the United States set the probate aside; this can
only be done by the probate court.
Nor can the will of 1813 be set up in chancery as an
inconsistent and opposing succession to the estate, while the will
of 1811 is standing in full force. Such is the doctrine in the
English Court of Chancery as will be seen by the cases of
Archer v. Mosse, 2 Vern. 8;
Beale v. Plume, 1
P.Wms. 388, and which are confirmed by the case of
Kenrick v.
Barnsby in the House of Lords, 7 Bro.P.C. 437. Nor do the
doubtful suggestions of Lord Hardwicke in
Barnsby v.
Powel, 1 Ves.Sr. 119, 284, conflict with the previously
settled doctrine, as I understand that case. The argument that a
fraudulent probate is a fraud on the living, and therefore chancery
can give relief by setting aside such probate, is a mistaken idea
of the chancery powers. Surely the probate of a fraudulent or
forged paper is a fraud on the living as much as the suppression of
the last will and the causing to be proved a revoked one; still,
chancery has not assumed
Page 43 U. S. 652
jurisdiction to set aside the probate of a will alleged to have
been forged or to be fraudulent, after the testator's death; as
will be seen by the cases cited; although he who committed the
fraud, or forgery, procured the probate to be had of the paper, in
the probate court.
It by no means follows, however, that the court below has no
jurisdiction of the case made by the bill in one of its aspects.
Mrs. Gaines claims to be the only child and lawful heir of Daniel
Clark. This we must take to be true. By the Civil Code of 1808, ch.
3, sec. 1, art. 19, 212, it is declared
"That donations either
inter vivos or
mortis
causa cannot exceed the fifth part of the property of the
disposer if he leaves at his decease one or more legitimate
children or descendants, born or to be born."
By the case made in the bill, Mr. Clark could only dispose of
one-fifth part of his property at the time of his death, provided
he had no wife living, and if she was living, then only of the
one-fifth part of one-half. It follows, if the will of 1811 is
permitted to stand as Daniel Clark's last and only will, that Mrs.
Gaines can come in as heir for the four-fifths. On this aspect of
the bill she can proceed to establish, and enforce her rights as
heir, without making probate of the will of 1812 -- and the second
question must be answered in the affirmative.
By the will of 1811, Mary Clark is the principal devisee. She
made her will and died; by this will, Caroline Barnes is entitled
to part of Daniel Clark's estate, and ought to be before the court
to maintain her rights. I therefore do not concur that as to her
the bill is multifarious. As to the purchasers from the executors,
I have more difficulty. I agree, where there is one common title in
the complainant, and this could only be the true source of all the
titles in all the defendants, and they have not obtained the first
link in the chain of title; that then the true owner may sue them
together in chancery although they claim by separate purchases from
a spurious source. Such is the general rule; nor do I think the
purchasers from Chew and Relf are exempt from its operation, on the
ground that they have no concern with the settlement of the
accounts growing out of the administration. I therefore concur in
answering the first question -- that the bill is not
multifarious.
The third question presents no difficulty as to the executors;
they are properly sued in chancery for distribution beyond doubt,
and so I imagine are the devisees of Mary Clark, they being by the
will of
Page 43 U. S. 653
Mrs. Clark co-distributees with Mrs. Gaines under the will of
1811, as to the one-fifth part of Daniel Clark's estate.
The purchasers are charged with having purchased with knowledge
of Mrs. Gaines' superior title; and with having fraudulently
purchased from the executors with such knowledge, there being
jurisdiction to grant relief against the executors, in chancery,
the same court can grant relief against the purchasers, involved in
the fraud of the executors. If they could be compelled to account
in regard to the real estate when it remained in their hands;
purchasers with notice of Mrs. Gaines' rights, and who purchased
with the intention to defeat her rights and deprive her of them,
can stand in no better situation than the executors, and must
account likewise; both being held in a court of equity equally as
trustees for the true owner. Therefore, on the face of the bill, a
court of equity has jurisdiction, and a court of law has not
exclusive jurisdiction, and thus the third point ought to be
certified.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Eastern
District of Louisiana, and on the points and questions which were
certified to this Court for its opinion agreeably to the act of
Congress in such case made and provided, and was argued by counsel.
On consideration whereof it is the opinion of this Court that the
first question should be answered in the affirmative, but that the
bill should be so amended in the circuit court as to avoid both of
the exceptions stated in the opinion of this Court, and that the
second and third questions should also be answered in the
affirmative, with the qualifications stated in the opinion of this
Court. Whereupon it is now here ordered and adjudged that it be so
certified to the judges of the said circuit court.
