John McLean

“ Can they be imprisoned for not producing the will of 1813? and if Relf should be imprisoned, how can that affect the title of the city of New Orleans to property which it has held for twenty-five years? It has been said that a party can be decreed to be a trustee for the benefit of the person really interested. But before you can do this, you must repeal the statute of Louisiana, abolishing all trusts. ”

“ In England there is a distinction in chancery between real and personal property. It will entertain a bill to establish a will, when repeated decisions have been made about it, which is called a bill of peace. But the chancellor does not decide a will without referring it to a jury. This is the measure of the power of this court; it cannot go further. But can it go this far? The probate courts of Louisiana have the exclusive power of establishing wills as to personal property. Why not real also? In England the probate courts have not the power, and, therefore, the chancellor comes in. ”

“ 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 must as the suppression of the last will, and the causing to be proved, a revoked one; still chancery has not assumed jurisdiction to set aside the probate of a will alleged to have been forged or to be fraudulent, after the testator's death ”

“ By the law of Louisiana, a will of real estate has the same effect that a will of personalty has in England. We admit this. And we admit, too, that a probate is necessary to vest a title to real estate, as much so as recording a deed is, to give it validity. If our claim would be good against a proved will in England, it is good here. The Code of Louisiana is made up of the civil law and Napoleon Code. But what power has a probate court to prove a will which is not produced. ”

“ It is a general principle that courts of equity have jurisdiction over all cases of fraud. Although courts of law have it, equity does not lose it. There are two exceptions recognized in the books, but neither of them includes this case. Generally, the heir need not go into chancery, because the title is case upon him by descent; but where there is a devisee who thus appears to have the legal title, the heir cannot resort to a court of law, but must apply to equity. ”

“ The court cannot lose jurisdiction because some of the parties reside abroad.
Is the bill mulifarious?
It is the nature of equity to bring in all parties who have an interest. It is said in the books that claims must not be joined together when they are different, nor parties who have not an entire interest. But it is esteemed a virtue in equity that all proper parties are brought in. Thus in the case of a fishery; all came in, although their rights were separate. A demurrer will not hold, if the plaintiff claims under a general right. ”

“ In Louisiana all trusts are abrogated. A cestui que trust cannot set up a title. Can this court say that any one shall hold land in trust there? Suppose that a devise of real estate were forbidden; could this court recognise it? In Louisiana, a probate is essential, and the courts which have charge of it have the same jurisdiction as the Court of Chancery in England. This court can neither revoke nor set up a will. If an executor sell property under a proved will, the title of the purchaser cannot be impeached, although the will be afterwards set aside for fraud. ”

“ The position that a state cannot enlarge or restrain the equity power of the Circuit Court of the United States, is laid down too broadly. The parliament of England might have placed the probate and jurisdiction over wills of real and personal estate exclusively in the ecclesiastical courts; and if so, why cannot Louisiana do the same thing? The sovereignty of a state over its domestic policy is complete, and especially over its land laws. ”

“ The practice in Louisiana is a complete equity; either party may arrive at the knowledge of facts in the possession of the other with more simplicity than the English chancery process. The district-attorney of the United States has preferred resorting to the state tribunals in a controversy between the government and Bank of the United States, rather than go into the federal court. To a case like the present, out system is peculiarly applicable. ”

“ It has as much right to do it as the Probate Court; not as an appellate tribunal, reviewing the decision of that court, but in the exercise of a separate jurisdiction. The will of 1811 may stand among the records, but its effect will be destroyed. So it is in England with spoliated deeds. Equity constantly sets aside law instruments when an equitable title is asserted.
What other remedy have we? We cannot go to the Probate Court and ask them to set up the will of 1813. They cannot do it. ”

“ It alleges that the executors conveyed the land, under a power of attorney, from Clark's mother. If the bill be true, then the possessors are merely tort-feisors, and this is not the remedy against them. All the English cases are those of devisees against heirs-the heir-at-law has a remedy at law. But the complainant here is under peculiar difficulties on account of state legislation. The tendency of this country is to assimilate real with personal property, and in ten states, courts of probate have jurisdiction over both species. ”

“ Our system has been called a mongrel system, but it is good enough for us. It does not follow that laws are unjust because they emanate from a despotic government. The Napoleon Code was not destroyed by the Bourbons. ”

“ 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 ”

“ 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, 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. ”

“ That a probate for personalty and realty, obtained by fraud, will make the party a trustee for the person interested leaving the probate to stand, provided the fraud be perpetrated by spoliation or destruction of papers. ”

“ 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 any thing about its contents ”

“ 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 to-morrow, she will go forth to society, to my relations, to my mother, acknowledged by 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 ”

“ 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. ”

“ 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. ”

“ 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 cases, the proper remedy is to be found in a court of law. ”

“ 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. ”

“ 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. ”

“ And so of the slaves; ninety-three are allotted amongst different owners, whilst one hundred and thirty-three are not accounted for. An interest in the mere question is not sufficient to authorize all these persons to be joined in one bill; they must all have an interest in the subject-matter. ”

“ 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. ”