Letters testamentary were granted to Relf on the 27th of August, 1813, and to Chew on the 21st of January, 1814, the latter being absent from New Orleans at the time of Clark's death.

Davis had removed to the North, with his family, in 1812, carrying with him Myra, who passed for his daughter and bore his name.

Things remained in this condition until 1832, when Myra married William Wallace Whitney, and about the time of her marriage became acquainted with her true name and parentage.

In 1834, Whitney and wife commenced a series of proceedings in the Court of Probates, which continued until the 8th of June, 1836, when the court dismissed their petition. It has been already stated, that this entire record was introduced into the case now under consideration by the defendant, Patterson, on the 13th of August, 1840. Many depositions were taken, which constitute a part of the mass of evidence in the case, although some of the witnesses were re examined under the authority of a commission issuing from the Circuit Court of the United States, after the filing of the bill. They who were thus re examined were Harriet Smith, alias Harper, Madame Caillaret, the sister of Zuline, Belle Chasse, and De la Croix. They whose depositions were not taken over again were Bois Fontaine, Mr. and Mrs. Davis, Pitot, Derbigny, Madame Benguerel, and Preval. The evidence of Madame Despau, another sister of Zuline, was only taken once, and then under a commission issuing from the Circuit Court.

It is not necessary to give a particular narrative of the proceedings before the Court of Probates, from 1834 to June, 1836. They were commenced in March, 1834, by a petition filed by Charles W. Shaumburg for letters of administration upon the estate of Clark, on the ground that the succession was in an unclaimed and abandoned condition, and that he had an interest in the settlement of the same. This petition was opposed by Relf and Chew. On the 18th of June, 1834, Whitney and wife became parties, by filing a petition praying that the will of 1811 might be annulled and set aside, that Myra Clark Whitney might be declared to be the heir of Clark, and that Relf and Chew might be ordered to deliver over the estate to her, &c.

On the 14th of January, 1835, Relf and Chew filed an answer to this petition, denying that Myra had any claim; that Clark was ever legally married, or that he ever had any legitimate offspring; and denying all the other allegations generally.

In the course of this controversy many depositions were taken.

On the 8th of June, 1836, the Court of Probates pronounced its judgment, nonsuiting the plaintiffs.

On the 28th of July, 1836, Whitney and wife filed a bill on the equity side of the Circuit Court of the United States, against Relf and Chew, the executors under the will of 1811, against the heirs of Mary Clark, and all the occupants and purchasers of the estate of which Clark died in possession. 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. It moreover stated the whole case, of which an outline has been given, alleging, also, that the sales made by Relf and Chew were illegally made.

Relf and Chew demurred generally, and also pleaded to the jurisdiction of the court. The proceedings in that branch of the case are set forth in 2 Howard, 619. Other defendants pursued other measures of defence, which it is not now necessary to mention.

On the 12th of December, 1837, Whitney's death was suggested, and the suit continued in the name of Myra alone.

On the 24th of May, 1839, Edmund P. Gaines and Myra, his wife, filed a supplemental bill, stating their intermarriage, and praying that the suit might be continued in their joint names as complainants.

On the 18th of April, 1840, the complainants filed an amended bill, praying that Caroline de Grange, and her husband, John Barnes, might be made defendants to the original bill.

On the 21st of April, 1840, Patterson filed his answer, which was not under oath, but signed by his counsel, in conformity with the waiver of the complainants. The answer denied all right and title of the complainants in and to the following described piece or lot of ground situated on Philippa Street, between Perdido and Poydras Streets, having front, on Philippa Street, one hundred and twenty-five feet French measure, by seventy feet in depth, the same being in a square of ground situated in Suburb St. Mary, of this city, now the second municipality of New Orleans, and bounded by Philippa, Circus, Perdido, and Poydras Streets.

It alleged that the property belonged to Clark in his lifetime, and was legally sold by Relf and Chew, his executors, and denied all the allegations of the bill.

On the 25th of April, 1840, Patterson filed the following supplemental answer:——

'The supplemental answer of Charles Patterson, one of the defendants in the above-entitled suit, most respectfully represents:——

'That the property described in his original answer is ninety feet in depth, instead of seventy-five, French measure, as therein stated, and further represents that your respondents purchased a part of said property from Gabriel Correjollas, and the remainder from Etienne Meunier, and that the said Meunier purchased from the said Correjollas, and the said Correjollas purchased all the said property at an auction sale made in the year 1820 by the testamentary executors of the late Daniel Clark, all of which facts will more fully appear from the four several copies of the authentic deed of sale hereunto annexed as a part of this supplemental answer. And this respondent prays that this supplement be made a part of his original answer.'

To this answer the deeds referred to were attached as exhibits.

As the claim of Mrs. Gaines in the present case was made, not as devisee under the will of 1813, but as forced heir under the Civil Code of 1808, ch. 3, sec. 1, art. 19, which prohibits a testator from willing away more than one fifth of his property if there is a legitimate child living at the time of his death, it is only necessary to insert in this statement such of the depositions as have a bearing upon the marriage of Clark, and the consequent legitimacy of his daughter Myra.

Madame Despau and Madame Caillaret were sisters of Zuline, and examined under a commission issuing from the United States court.

Their evidence was as follows.

Interrogatories to be propounded, on behalf of Complainants, to John Sibley, Madame Caillaret, Madame Despau, and Mrs. Eliza Clark.

1st. Were you, or not, acquainted with the late Daniel Clark of New Orleans?

2d. Was the said Daniel Clark ever married? if so, when and to whom, and was there any issue of said marriage? State all you may know or have heard of said Clark upon this subject.

3d. Were you acquainted with a man in New Orleans by the name of De Grange? if so, when and where have you known him? Was he, or not, married when he first came to New Orleans, and did he, or not, so continue until after he finally left it? State all you may know or have heard touching this subject.

4th. If you know any thing further material to the complainants in the controversy, state it.

Cross-interrogatories.

1. Will you and each of you answering any interrogatories of the complainants state your age, employment, and present residence, and if a married woman state your maiden name; and if married more than once state the names of your husbands, and by whom and when and where you resided during each year from 1810 to 1814?

2. If you answer the first interrogatory in chief affirmatively, state how that acquaintance originated. When and where did you first see Mr. Daniel Clark? Was your acquaintance with him intimate or not? Was it ever interrupted, and if so, for what reason? Did it continue uninterrupted until the death of Mr. Clark, and if so, how long a period did it embrace? Do you say that your intimacy with Mr. Clark was of such a nature as to enable you to become acquainted with events in his life which were not disclosed to the entire circle of his acquaintance? and if so, have you a distinct recollection of any such event or events? and state the circumstances which strengthen your memory on this point.

3. Will you state where Mr. Clark resided when in New Orleans? Do you recollect the street and the house? Did he board or keep house? If he boarded, did he also lodge at the same house, and if so, who was the keeper of this house, and what was his or her general character? If he had a house, did he have a housekeeper, and if so, what was his or her general character? Did he reside in New Orleans during the summer months, and if not, where did he go? At whose house did he stop, or whom did he visit? and state what you know of the people whom he visited, and his own standing in society.

4. If, in answering the second interrogatory, you say that Mr. Daniel Clark was ever married, state when, where, and to whom. By what priest, clergyman, or magistrate, and who were the witnesses present? Were you among the witnesses? What other witnesses were present with you? Did you ever see the lady whom you say Mr. Clark married, and if so, what was her personal appearance, her age, and name, and family? Where did she reside before the time you say she was married to Mr. Clark? How long did you know her before that time? Or were you acquainted with her until then? Did not Mr. Clark introduce her to you? State particularly every thing you know in regard to the connection of Mr. Clark with the lady whom you call his wife, and state if she was ever married before or after the time you say she was married to Mr. Clark; if so, when, where, and to whom?

5. Did you ever know that there was any issue of said supposed marriage? if so, who told you? State your means of knowing any thing about this circumstance. What was the name, age, sex, and the time of the binth of the child whose father you say was Mr. Clark? Do you know who nursed and reared this child, and if so, who was the nurse? State, if you please, if you saw the mother shortly after this child was born, and if so, where was she? Did she reside then at the house of Mr. Clark, and if not, why not, and where did she reside? Did Mr. Clark live with her at this time, and were they known generally to the neighbours as man and wife?

6. Was this supposed marriage of Mr. Clark's (if you say he ever was married) public or private? If public, did Mr. Clark introduce his wife to his friends and acquaintances in New Orleans? And if she was not introduced, state why she was not. Or was his marriage private? If so, why was it private? And what circumstances could, or did, probably induce him to keep that marriage secret from his friends and the public?

7. Do you know Myra C. Whitney, one of the complainants in this controversy? If so, how long have you been acquainted with her? Did either of the complainants inform you, by letter or otherwise, that your testimony would be important to them in this suit? and if so, on what points did they wish you to be prepared?

8. If, in answering the third interrogatory, you say that you were acquainted with a man in New Orleans by the name of De Grange, state, if you please, where and when you first became acquainted with him, in what year. Were you intimate with him, and if so, did this intimacy continue without interruption? Was he born in the city of New Orleans? and if not, where was he born, and how long did he remain in said city? What was his employment? Was he married in New Orleans, or where was he married? Were you present at his marriage? and if so, state when and by whom he was married. Have you ever seen his wife, and if so, what was her personal appearance and age, and what was her name prior to her marriage with De Grange? Did you ever see De Grange's wife and the lady whom you say Mr. Clark married in company together? if so, when and where, and how often? State particularly every thing you know touching said De Grange, his wife, and their connection or relation with Mr. Clark.

9. Did you ever, or not, hear Mr. Clark acknowledge that he had any natural children in New Orleans? and particularly, did you ever, or not, hear him acknowledge two female children,—the one named Caroline and the other named Myra? And is, or not, that Myra one of the complainants in this case? Did you ever hear him say that he intended to leave by will money or property enough to Myra to take the stain off her birth? If you heard him use such expressions, or those of a similar character, state what you suppose he meant by taking off the stain from the birth of his own legitimate daughter.

10. Will you state who was the mother of the complainant, Myra? And did the mother nurse Myra? if not, why not? Who did nurse her? Did her mother die, and leave her an infant, or was she too sick and too feeble to nurse that child? Did the mother of Myra, the complainant, nurse and raise her, or not? If not, who did? Mention particularly any and all the circumstances on which you found your opinion.

11. If you know when the complainant Myra was born, state the precise date and place, and state if you know by whom and where she was raised, and whose name she bore, and why she bore that name.

12. State, if you please, what are your feelings and affections towards the complainants; whether you are related to or connected with either of them; and if you are, how and in what degree or way, and whether you have any interest in the event of this suit.

13. Will each one of you, answering any of these direct or cross interrogatories, state whether you have seen or examined, read or heard read, any one of them, or copies of them, at any time or place, before you were called upon by the commissioner to answer them? If ay, state when, where, and by whom they were thus so shown or read to or by you, and for what purpose. State, also, each one of you, whether you have had any conversation or correspondence, within the last three or four years, with the complainants, or with either of them, respecting their supposed claims against the estate of Daniel Clark, and if you answer affirmatively, state why, when, and where such conversation or correspondence occurred, and the nature and amount of them so far as your memory will serve you; and who was present at such conversations. If you have any letters from the complainants, or from either of them, on the matters referred to in these direct and cross interrogatories, annex them to your answers if possible; and if not possible, stat why. If you have preserved and cannot annex them, give true extracts from them, and if that be not possible, state your recollections.

14. What is your maternal language? If not English, do you understand that language perfectly? And if you do not understand English, how have you contrived to answer the foregoing chief and cross interrogatories? Who has translated them to you?

I was well acquainted with the late Daniel Clark of New Orleans.

Daniel Clark was married in Philadelphia, in 1803, by a Catholic priest. I was present at this inarriage. One child was born of that marriage, to wit, Myra Clark, who married William Wallace Whitney, son of General T. Whitney of the State of New York. I was present at her birth, and knew that Mr. Clark claimed and acknowledged her to be his child. She was born in 1806. I neither knew, nor had any reason to believe, any other child besides Myra was born of that marriage. The circumstances of her marriage with Daniel Clark were these. Several years after her marriage with Mr. De Grange she heard that he had a living wife. Our family charged him with the crime of bigamy in marrying the said Zuline; he at first denied it, but afterwards admitted it, and fled from the country; these circumstances became public, and Mr. Clark made proposals of marriage to my sister, with the knowledge of all our family. It was considered essential, first, to obtain record proof of De Grange having a living wife at the time he married my sister, to obtain which from the records of the Catholic church in New York (where Mr. De Grange's prior marriage was celebrated) we sailed for that city. On our arrival there, we found that the registry of marriages had been destroyed. Mr. Clark arrived after us. We heard hat a Mr. Gardette, then living in Philadelphia, was one of the witnesses of Mr. De Grange's prior marriage. We proceeded to that city, and found Mr. Gardette; he answered, that he was present at said prior marriage of De Grange, and that he afterwards knew De Grange and his wife by this marriage,—that this wife had sailed for France. Mr. Clark then said, 'You have no reason longer to refuse being married to me. It will, however, be necessary to keep our marriage secret till I have obtained judicial proof of the nullity of your and De Grange's marriage.' They, the said Clark and the said Zuline, were then married. Soon afterwards, our sister, Madame Caillaret, wrote to us from New Orleans that De Grange's wife whom he had married prior to marrying the said Zuline, had arrived at New Orleans. We hastened our return to New Orleans. He was prosecuted for bigamy,—Father Antoine of the Catholic church in New Orleans taking part in the proceedings against De Grange. Mr. De Grange was condemned for bigamy in marrying the said Zuline, and was cast into prison, from which he secretly escaped by connivance, and was taken down the Mississippi River by Mr. Le Briten d'Orgenois, where he got to a vessel, escaped from the country, and, according to the best of my knowledge and belief, never afterwards returned to Louisiana; this happened in 1803, not a great while before the close of the Spanish government in Louisiana. Mr. Clark told us that, before he could promulgate his marriage with my sister, it would be necessary that there should be brought by her an action against the name of De Grange. The anticipated change of government created delay, but at length, in 1806, Messrs. James Brown and Eligeas Fromentin, as the counsel of my sister, brought suit against the name of Jerome de Grange in the city court, I think, of New Orleans. The grounds of said suit were, that said De Grange had imposed himself in marriage upon her at a time when he had living a lawful wife. Judgment in said suit was rendered against said De Grange. Mr. Clark still continued to defer promulgating his marriage with my sister, which very much fretted and irritated her feelings. Mr. Clark became a member of the United States Congress in 1806. While he was in Congress, my sister heard that he was courting Miss _____** of Baltimore. She was distressed, though she could not believe the report, knowing herself to be his wife; still, his strange conduct in deferring to promulgate his marriage with her had alarmed her; she and I sailed for Philadelphia, to get the proof of his marriage with my sister. We could find no record, and were told that the priest who married her and Mr. Clark was gone to Ireland. My sister then sent for Mr. Daniel W. Coxe, and mentioned to him the rumor. He answered, that he knew it to be true that he (Clark) was engaged to her. My sister replied, it could not be so. He then told her that she would not be able to establish her marriage with Mr. Clark, if he were disposed to contest it. He advised her to take counsel, and said he would send one; a Mr. Smythe came, and told my sister that she could not legally establish her marriage with Mr. Clark, and pretended to read to her a letter in English (a language then unknown to my sister) from Mr. Clark to Mr. Coxe, stating that he was about to marry Miss _____. In consequence of this information, my sister Zuline came to the resolution of having no further communication or intercourse with Mr. Clark, and soon afterwards married Mr. Gardette of Philadelphia.

I became acquainted with Mr. Jerome de Grange in 1793, when, as I understood, he first came to New Orleans. He was a nobleman by birth, and passed for a single or unmarried man; and courted and married Zuline, n ee De Carriere, at the age of thirteen, the same who is the mother of Myra Clark Whitney. Zuline had two children by him, a boy and a girl; the boy died; the girl is still living, her name is Caroline; she is married to a physician by the name of Barnes. I was present at the birth of these children.

I am not aware of knowing other important matter to the complainants in this cause.

Answer to the first cross-interrogatory.

My name is Sophie Veuve Despau, n ee De Carriere. My deceased husband was a planter. I was born in Louisiana. My age is sixty-two. I now reside in Beloxi; from 1800 to 1814, I resided in Louisiana, in Philadelphia, and in Cuba.

Answer to the second cross-interrogatory.

I first knew Daniel Clark in New Orleans; his being the husband of my sister, Zuline de Carriere, placed me on a footing of intimacy with him during the time of their intercourse; that intimacy was afterwards interrupted by their separation.

Answer to the third cross-interrogatory.

I had reason to know that Mr. Clark, at different times, lived in different houses in New Orleans. I have before said that he did not give publicity to his marriage with said Zuline. He kept a very handsome establishment for her in New Orleans, and was in the habit of visiting her.

Answer to the fourth cross-interrogatory.

I have already stated that Mr. Clark was married to my sister, Zuline de Carriere, that I was present at her marriage (a private one), in Philadelphia. Besides myself, Mr. Dorvier of New Orleans, and an Irish gentleman, a friend of Mr. Clark's, from New York, were present at his marriage. A Catholic priest performed the marriage ceremony. I have already before stated, that Zuline was married to Mr. Jerome de Grange before her marriage with Mr. Clark, and that thereafter she was married to Mr. Gardette of Philadelphia.

Answer to the fifth cross-interrogatory.

I have already stated that I knew Myra Clark to be the issue, and the only issue, of the marriage of Zuline de Carriere and Daniel Clark. A few days after the birth of Myra Clark, she was placed by her father under the care of Mrs. Davis, the wife of Colonel S. B. Davis, with whom she lived until her marriage with Mr. Whitney. I have heard that Colonel Davis concealed from the said Myra her true history, and that she bore his name after her father's death. Zuline and Mr. Clark occupied different houses in New Orleans, but he always visited her, as heretofore mentioned, at her own house; their marriage was known only to a few friends; Mr. Clark told me that he had informed Colonel S. B. Davis, Mr. Daniel W. Coxe, and Mr. Richard Relf, of his marriage with my sister Zuline.

Answer to the sixth cross-interrogatory.

I always understood and believed, at least for the first years of his marriage, that Mr. Clark was prevented from making it public on account of her unfortunate marriage with Mr. De Grange. His pride was great, and his standing was of the highest order in society, and that pride might have suggested his opposition to the promulgation of his marriage. He, however, always manifested by his conversations, which I frequently heard, the greatest affection for his daughter Myra.

Answer to the seventh cross-interrogatory.

I have already stated my knowledge of Myra Clark Whitney from her birth. As I never made any secret of my knowledge of her being the daughter of Daniel Clark, nothing was more likely than she and her late husband should hear of my acquaintance with her parentage, and many circumstances connected with it, as already related. And on this it was, I presume, that I have been called upon to give testimony in this affair. But neither of them, nor any body else, ever dared to ask of me any declarations in the least inconsistent with truth and justice.

Answer to the eighth cross-interrogatory.

I have already in my former answers stated, particularly the third and fourth, my knowledge of Jerome de Grange, and of his first and second marriages. Before the detection of his bigamy, said Zuline had a son who died, and a daughter called Caroline, which bore his name. Since the death of Mr. Daniel Clark, Mr. Daniel W. Coxe and Mr. Hulings of Philadelphia gave her the name of Caroline Clark, and took her to Mr. Clark's mother, and introduced her as the daughter of her son. She of course believed their story, which induced her, in her will, to leave a portion of her property to Caroline. Caroline was born in 1801. I was present at her birth, as well as that of her brother.

Answer to the ninth cross-interrogatory.

I never heard Mr. Clark acknowledge his having any natural children, but have only heard him acknowledge one child, and that a lawful one, to wit, said Myra.

Answer to the tenth cross-interrogatory.

I have already given a full account of the mother of Myra, and of Myra herself, and her being with Mrs. Davis. I have stated all that I know of these matters, as called for by this interrogatory.

Answer to the eleventh cross-interrogatory.

The information called for by this interrogatory has already been given.

Answer to the twelfth cross-interrogatory.

I have already before stated myself to be the sister of Myra's mother. My feelings towards Myra are those of friendship and all becoming regard. I wish, however, that justice only be done towards her, but in or by the issue of the suit I have nothing to gain or lose.

Answer to the thirteenth cross-interrogatory.

I have never seen or heard read the interrogatories or cross-interrogatories referred to, before called upon to answer them. Any conversations that I have had about this affair I have already given an account of.

Answer to the fourteenth cross-interrogatory.

My natural language is French; but my nephew is well acquainted with the English language, and when in need of a translator, I apply to him.

(Signed,) SOPHIE VE. DESPAU, E EE DE CARRIERE.

Which answers, being reduced to writing, have been signed and sworn to in my presence, this twenty-eighth day of June, A. D. 1839. In testimony whereof, I have hereunto set my hand and seal, this the day and year above written.

(Signed,) HOLMES P. WENTZELL,

J. P. H. C. [L. S.]

One word erased on third page, also one word on fourth page; two words interlined on fourth page; twenty-five words erased on fifth page; one word interlined on sixth page, before signing.

(Signed,) H. P. WENTZELL,

J. P. H. C. [L. S.]

vs.

RICHARD RELF, BEVERLY CHEW, and others.

In pursuance of the annexed commission, issued from the United States Circuit Court of the Eastern District of Louisiana, I, the undersigned, justice of the peace in Hancock county, State of Mississippi, have caused to come before me Madame Rose Vve. Caillaret, n ee De Carriere, who being duly sworn to declare the truth on the questions put to her in this cause, in answer to the interrogatories annexed to said commission, says:——

I was well acquainted with the late Daniel Clark, of New Orleans.

I was not present at the marriage of Zuline, n ee De Carriere, who is my sister, with Daniel Clark, but I do know that said Clark made proposals of marriage for my sister, and subsequently said Zuline wrote to me that she and said Clark were married. Mr. Clark's proposals of marriage were made after it became known that her marriage with Mr. De Grange was void, from the fact of his having then, and at the time of his marrying her, a living wife; these proposals were deferred being accepted till the record proof of De Grange's said previous marriage could be obtained, and said Zuline, with her sister, Madame Despau, sailed for the North of the United States, to obtain the record proof.

I was acquainted with Mr. De Grange in New Orleans. He was considered an unmarried man on coming to New Orleans, and as such imposed on my sister Zuline to marry him; but it was afterwards proved he had a lawful wife still living. After this imposition of said De Grange, his said lawful wife came to New Orleans, and detected and exposed his bigamy in marrying the said Zuline, when he had a living and lawful wife at and before the time of his marrying Zuline. He was prosecuted, condemned, and cast into prison, and escaped privately from prison. He escaped from Louisiana, as it was reported, by the Spanish governor's connivance. Le Breton d'Orgenois was said to aid De Grange, in getting him off. This happened some time before the Americans took possession of New Orleans. Mr. Clark's marriage with my sister Zuline was after the detection of De Grange's bigamy. The birth of their daughter, Myra Clark, was some years after the marriage.

I am not aware of knowing any thing more of importance in this suit, except the marriage of said Zuline with Mr. Gardette, of Philadelphia, before the death of Mr. Clark.

Answer to the first cross-interrogatory.

My name is Rose Veuve Caillaret, n ee De Carriere. My age is sixty-eight years. I was born in Louisiana, and resided some time in France after this marriage of Zuline and Mr. Clark, and after that resided in the State of Mississippi.

Answer to the second cross-interrogatory.

I became acquainted with Mr. Clark in New Orleans. In consequence of his attachment and marriage to my sister Zuline, an intimacy subsisted between him and myself. Our friendly intercourse continued during my residence in New Orleans.

Answer to the third cross-interrogatory.

When I resided in New Orleans, Mr. Clark lived in his own houses, with his own slaves to wait upon him. He had the reputation of being a man of immense wealth. He stood at the head of society, was considered a man of very great talents, and much beloved for his benevolence.

Answer to the fourth cross-interrogatory.

I have already stated all I knew about Mr. Clark's marriage with Zuline, and of her marriage with De Grange. By this marriage she had two children, a boy and a girl. The boy is dead, the girl is still living; her name is Caroline, and she is married to Dr. Barnes. I have already stated that said Zuline also married Mr. Gardette.

Answer to the fifth cross-interrogatory.

It is to my knowledge, that Myra Clark, who married Mr. Whitney, is the child, and only child, of Mr. Clark by Zuline de Carriere. It is to my knowledge, that Mr. Clark put his daughter Myra under the charge of Mrs. Davis. Mr. Clark acknowledged to me that Myra was his lawful and only child. Mrs. William Harper nursed her for some time from kindness. Mr. Clark's gratitude towards this lady, for nursing his child, lasted with his life. Said Myra was brought up and educated in the family of Colonel Davis, and supposed herself their child until within a few months of her marriage with Mr. Whitney.

Answer to the sixth cross-interrogatory.

I always heard that Mr. Clark's marriage with Zuline was private, and that he did not promulgate it, unless he did so in his last will, made a little before his death, and lost or purloined after his death. He never explained to me his reasons for not publishing his marriage in his lifetime.

Answer to the seventh cross-interrogatory.

I have known Myra Clark Whitney for some years, making no secret about my knowledge I possessed of the matters of which I have herein spoken, and it being known that I was an elder sister of Zuline de Carriere. Therefore it was, I suppose, that I have been called on to testify in this cause; but no one has ever taken the liberty to intimate a wish for me to declare any thing but the truth.

Answer to the eighth cross-interrogatory.

I have already said all I know about Mr. De Grange.

Answer to the ninth cross-interrogatory.

I never heard Mr. Clark make any acknowledgment of his having any natural children; and I never heard of his having another child than Myra Clark Whitney, and which Mr. Clark informed me was his lawful child.

Answer to the tenth cross-interrogatory.

I have already stated all I know as to the parentage and nursing and education of Myra Clark.

Answer to the eleventh cross-interrogatory.

I have already stated all I know about the parentage and name of Myra Clark, except that I have heard that after her father's death she was called Myra Davis.

Answer to the twelfth cross-interrogatory.

My feelings are friendly and kind towards Myra Clark Whitney, and I wish her such success only in her suit as is compatible with justice. I have no interest in the issue of it.

Answer to the thirteenth cross-interrogatory.

I have never seen the interrogatories put to me until called upon to answer them. I have already stated all I have to say about my conversations. I am not aware of ever having any correspondence with either of them on this subject.

Answer to the fourteenth cross-interrogatory.

French is my mother tongue, but my son is well acquainted with the English language, and when in need of a translator, I apply to him.

(Signed,) VEUVE CAILLARET, N EE ROSE CARRIERE.

As the opinion of the court refers also to the evidence of Bois Fontaine, it is deemed proper to insert it.

Interrogatories and Answers of Pierre Baron Bois Fontaine.

WM. WALLACE WHITNEY and MYRA C., his wife,

vs.

P. O'BEARN and others.

Court of Probates.

Interrogatories to be propounded to Witnesses on Behalf of the plaintiffs.

1st. Were you acquainted with the late Daniel Clark, deceased, of New Orleans? If so, were you at any time on terms of intimacy with him?2d. Did the said Daniel Clark leave at his death any child acknowledged by him as his own? If so, state the name of such child, whether such child is still living, and if living, what name it now bears; as also state when and where, and in what times, said acknowledgment of said child was made.

3d. Have you any knowledge of a will, said to have been executed by said Clark shortly before his decease? Did you ever read or see the said will, or did Daniel Clark ever tell you that he was making said will, or had made said will? If so, at what time and place, and if more than once, state how often, and when and where.

4th. If you answer the last question affirmatively, state whether the said Daniel Clark ever declared to you, or to any one in your presence, the contents of said will. And if so, state the whole of said declarations, and the time, place, and manner in which they were made, before whom, and all the circumstances which occurred when such declaration was made.

5th. State how long before his death you saw the said Daniel Clark, for the last time, how long before his death he spoke of his last will, and what he said in relation to his aforesaid child.

6th. State whether you ever heard any one say he had read the said will. If so, state whom, what was said, and whether the said person is now living, or not.

(Signed,) WM. M. WORTHINGTON, For Plaintiff.

Cross-examined.

1st. Each witness examined, and answering any one of the foregoing interrogatories, is desired to state his name, age, residence, and employment; and whether he is in any manner connected with, or related to, any of the parties to the suit, or has any interest in the event of the same.

2d. How long did you know Daniel Clark, and under what circumstances? And if you presume to state that Daniel Clark left any child at his decease, state who was the mother of said child, and who was the husband of that mother. State all the circumstances, fully and in detail, and whether said Clark was ever married, and if so, to whom, when, and where.

3d. If said Clark ever acknowledged to you, that he supposed himself to be the father of a child, state when and where he made such an acknowledgment, and all the circumstances of the recognition of such a child or children, and whether the act was public or private.

4th. Did said Clark consider you as an intimate friend, to whom he might confide communications so confidential as those relating to his will? If ay, state what you know, of your own personal knowledge, of the contents of said will, and be careful to distinguish between what you state of your own knowledge, and what from hearsay.

The defendants propound the foregoing interrogatories, with a full reservation of all legal exceptions to the interrogatories in chief, the same not being pertinent to the issue, and the last of said interrogatories being calculated merely to draw from the witness hearsay declarations.

(Signed,) L. C. DUNCAN, For Defendants.

In pursuance of the annexed commission, directed to me, the undersigned, justice of the peace, personally appeared Pierre Baron Bois Fontaine, who being duly sworn to declare the truth on the questions put to him in this cause, in answer to the foregoing interrogatories, says:——

1st. In reply to the first interrogatory he answers,—I was acquainted with the late Daniel Clark of New Orleans, and was many years intimate with him.

2d. In reply to the second interrogatory he answers,—Mr. Clark left at his death a daughter named Myra, whom he acknowledged as his own, before and after her birth, and as long as he lived. In my presence he spoke of the necessary preparation for her birth, in my presence asked my brother's wife to be present at her birth, and in my presence he proposed to my sister and brother-in-law, Mr. S. B. Davis, that they should take the care of her after her birth. After her birth he acknowledged her to me as his own, constantly, and at various places. He was very fond of her, and seemed to take pleasure in talking to me about her.

When he communicated to me that he was making his last will, he told me he should acknowledge her in it as his legitimate daughter. The day before he died, he spoke of her with great affection, and as being left his estate in his last will. The day he died, he spoke of her with the interest of a dying parent, as heir of his estate in his last will. She is still living, and is now the wife of William Wallace Whitney.

3d. In reply to the third interrogatory he answers,—About fifteen days before Mr. Clark's death I was present at his house, when he handed to Chevalier de la Croix a sealed packet, and told him that his last will was finished, and was in that sealed packet. About ten days before this, he had told me that it was done. Previous to this, commencing about four months before his death, he had often told me that he was making his last will. He said this in conversation with me on the plantation, and at his house; and I heard him mention this subject at Judge Pitot's. I frequently dined at Judge Pitot's with Mr. Clark on Sundays. The day before he died, he told me that his last will was below, in his office-room, in his little black case. The day he died, he mentioned his last will to me.

4th. In reply to the fourth interrogatory, he answers,—I was present at Mr. Clark's house about fifteen days before his death, when he took from a small black case a sealed packet, handed it to Chevalier de la Croix, and said, 'My last will is finished; it is in this sealed packet, with valuable papers; as you consented, I have made you in it tutor to my daughter. If any misfortune happens to me, will you do for her all you promised me? Will you take her at once from Mr. Davis? I have given her all my estate in my will, an annuity to my mother, and some legacies to friends. You, Pitot and Belle Chasse, are the executors.' About ten days before this, Mr. Clark, talking of Myra, said that his will was done.

Previous to this he often told me, commencing about four months before his death, that he was making his last will. In these conversations he told me that in his will he should acknowledge his daughter Myra as his legitimate daughter, and give her all his property. He told me that Chevalier de la Croix had consented to be her tutor in his will, and had promised, if he died before doing it, to go at once to the North, and take her from Mr. Davis. That she was to be educated in Europe. He told me that Chevalier de la Croix, Judge Pitot, and Colonel Belle Chasse were to be executors in his will. Two or three days before his death, I came to see Mr. Clark on plantation business; he told me he felt quite ill. I asked him if I should remain with him. He answered that he wished me to. I went to the plantation to set things in order, that I might stay with Mr. Clark, and returned the same day to Mr. Clark, and stayed with him constantly till he died. The day before he died, Mr. Clark, speaking of his daughter Myra, told me that his last will was in his office-room below, in the little black case; that he could die contented, as he had insured his estate to her in the will. He mentioned his pleasure that he had made his mother comfortable by an annuity in it, and remembered some friends by legacies.

He told me how well satisfied he was that Chevalier de la Croix, Judge Pitot, and Belle Chasse were executors in it, and Chevalier de la Croix Myra's tutor. About two hours before his death, Mr. Clark showed strong feelings for said Myra, and told me that he wished his will to be taken to Chevalier de la Croix, as he was her tutor, as well as one of the executors in it; and just afterwards Mr. Clark told Lubin, his confidential servant, to be sure, as soon as he died, to carry his little black case to Chevalier de la Croix.

After this, and a very short time before Mr. Clark died, I saw Mr. Relf take a bundle of keys from Mr. Clark's armoire, one of which, I believe, opened the little black case. I had seen Mr. Clark open it very often.

After taking these keys from the armoire, Mr. Relf went below. When I went below, I did not see Mr. Relf, and the office-room door was shut. Lubin told me that when Mr. Relf went down with the keys from the armoire, he followed, saw him there on getting down go into the office-room, and that Mr. Relf on going into the office-room locked the office-room door. Almost Mr. Clark's last words were, that his last will must be taken care of on said Myra's account.

5th. In reply to the fifth interrogatory, he answers,—I was with Mr. Clark when he died; I was by him constantly for the last two days of his life. About two hours before he died, he spoke of his last will and his daughter Myra in connection, and almost his last words were about her, and that this will must be taken care of on her account.

6th. In reply to the sixth interrogatory, he answers,—When, after Mr. Clark's death, the disappearance of his last will was the subject of conversation, I related what Mr. Clark told me about his last will in his last sickness. Judge Pitot and John Lynd told me that they read it not many days before Mr. Clark's last sickness; that its contents corresponded with what Mr. Clark had told me about it; that when they read it, it was finished, was dated, and signed by Mr. Clark; was an olographic will; was in Mr. Clark's handwriting; that in it he acknowledged the said Myra as his legitimate daughter, and bequeathed all his estate to her, gave an annuity to his mother, and legacies to some friends. The Chevalier de la Croix was tutor of said Myra, his daughter; Chevalier de la Croix, Colonel Belle Chasse, Judge Pitot, were executors; Judge Pitot and John Lynd are dead. The wife of William Harper told me she read it; Colonel Belle Chasse told me that Mr. Clark showed it to him not many days before his last sickness; that it was then finished. Colonel Belle Chasse and the lady, who was Madame Harper, are living.

In reply to the first cross-interrogatory, he answers,—My name is Pierre Baron Bois Fontaine, my age about fifty-eight. I have been some time in Madisonville; the place of my family abode is near New Orleans, opposite side of the river. I was eight years in the British army. I was several years agent for Mr. Clark's plantations; since his death, I have been engaged in various objects. I now possess a house and lots, and derive my revenue from my slaves, cows, &c. I am in no manner connected with, or related to, any of the parties of this suit; I have no interest in this suit.

In reply to the second cross-interrogatory, he answers,—I knew Daniel Clark between nine and ten years; I knew him as the father of Myra Clark; she was born in my house, and was put by Mr. Clark, when a few days old, with my sister and brother-in-law, Samuel B. Davis. I was Mr. Clark's agent for his various plantations,—first, the Sligo and the Desert, then the Houmas, the Havana Point, and when he died, of the one he purchased of Stephen Henderson. He respected our misfortunes, knowing that our family was rich and of the highest standing in St. Domingo before the Revolution. The mother of Myra Clark was a lady of the Carriere family. Not being present at any marriage, I can only declare it as my belief, Mr. Clark was her husband. To answer this question in detail, as is demanded, it is necessary that I state what was communicated to me. It was represented to me that this lady married Mr. De Grange in good faith, but it was found out some time afterwards that he already had a living wife, when the lady n ee Carriere separated from him. Mr. Clark some time after this married her at the North. When the time arrived for it to be made public, interested persons had produced a false state of things between them, and this lady being in Philadelphia, and Mr. Clark not there, was persuaded by a lawyer employed, that her marriage with Mr. Clark was invalid, which believing, she married Monsieur Gardette. Some time afterwards, Mr. Clark lamented to me that this barrier to making his marriage public had been created. He spoke to me of his daughter Myra Clark from the first as legitimate, and when he made known to me he was making his last will, he said to me that he should declare her in it as his legitimate daughter. From the above I believe there was a marriage.

In reply to the third cross-interrogatory, he answers,—Mr. Clark made no question on this subject before and after her birth, and as long as he lived he exercised the authority of a parent over her destiny. He was a very fond parent; he sustained the house of Mr. Davis and Mr. Harper, because my sister had her in care, and Mrs. Harper suckled her. He sustained Harper as long as he lived, and conferred great benefits on my brother-in-law. He spoke of her mother with great respect, and frequently told me after her marriage with Mr. Gardette, that he would have made his marriage with her public, if that barrier had not been made, and frequently lamented to me that this barrier had been made, but that she was blameless. He said he would never give Myra a step-mother. When, in 1813, he communicated to me that he was making his last will for her, he showed great sensibility as to her being declared legitimate in it. While I was with him at his death-sickness, and even at the moment he expired, he was in perfect possession of his senses, and no parent could have manifested greater affection than he did for her in that period. Nearly his last words were about her, and that his will must be taken care of on her account. She, the said Myra, is the only child Mr. Clark ever acknowledged to me to be his. She was born in July, 1805.

In reply to the fourth cross-interrogatory, he answers,—I was a friend of that confidential character from the time of said Myra's birth. Mr. Clark treated me as a confidential friend in matters relating to her and to his affairs generally. In reply to the fourth interrogatory, I have stated what I know concerning Mr. Clark's last will; my recollection of these facts is distinct. The circumstances connected with them were of such a character, that my recollection of them could not be easily impaired.

(Signed,) PIERRE BARON BOIS FONTAINE.

And on the 25th day of April, A. D. 1840, the following decree was entered of record in the words and figures following, to wit:——

v.

CHEW & RELF et als.

No. 122.

This cause having come for final hearing, by consent of the complainants and the defendant Patterson, upon the bill, answer, replication, exhibits, depositions, and documents on file herein, and on the admission of the parties, that the estate in controversy in this case exceeds in value the sum of two thousand dollars, and the said complainants and the defendant Patterson expressly waiving and dispensing with the necessity of any other parties to the hearing or decision of this cause than themselves, and agreeing that the cause shall be determined alone upon its merits, and the court, being now sufficiently advised of and concerning the premises, does finally decree and order that the defendant Patterson do, on or before the first day of the next term of this court, convey and surrender possession to the complainant, Myra Clark Gaines, of all those lots or parcels of land lying and being in the city of New Orleans, and particularly described in this answer and exhibits, and to which he claims title under the said will of (1811) eighteen hundred and eleven; said conveyance shall contain stipulations of warranty against himself only, and those claiming under him. It is further decreed and ordered, that the defendant pay the complainants so much of their costs expended herein as has been incurred by reason of his being made a defendant in this cause.

From which decree the defendant prayed an appeal to the Supreme Court of the United States, which is granted.

And by consent of the complainants, bond and security is dispensed with. By consent, the copy of records of the Probate Court, with a full and complete transcript of the proceedings had in relation to the estate of the late Daniel Clark on file in said court, (hereafter to be filed,) to constitute a part of the record herein.

Decree rendered April 25th, 1840.

Decree signed April 25th, 1840.

(Signed,) J. McKINLEY, Presiding Judge.

The cause having come up to this court by this appeal, was argued by Mr. Brent and Mr. May, for the appellant, Patterson, and by Mr. Johnson and Mr. Jones, for Gaines and wife.

The counsel for the appellant contended that the decree of the court below was erroneous, for the following reasons, viz.:——

1. Because the bill shows no case for equitable relief.

2. Because there is no sufficient evidence of the alleged title in the complainant, as devisee of Daniel Clark.

3. That she is not the heir at law of Daniel Clark.

4. That she was the adulterine child of said Clark, by illicit commerce between said Clark and the mother of complainant, then the lawful wife of Jerome de Grange, and as such child incapable by law of inheriting or receiving by gift or will the property of said Clark.

5. That if not the adulterine child, she was Clark's illegitimate offspring, incapable of receiving from him more than one third of his estate.

6. That the appellant is a purchaser of a legal title to the property in suit, under a will legally admitted to probate, and under the authority of the executors therein named.

7. That the decree is otherwise erroneous and wrongful.

8. That she is not the child of Clark.

The argument of Mr. Brent and Mr. May was as follows.

The bill of complaint was filed in the Circuit Court of the United States for the District of Louisiana, against the appellant and numerous other defendants. The answers (original and supplemental) of Patterson disclose the nature of his title as bon a fide purchaser under the will of Daniel Clark dated in 1811, and duly admitted to probate in the proper court.

Various depositions and documentary evidence were filed by the complainants and the appellant, and the case being set for hearing as between themselves, a final decree was rendered against Patterson for all the property held by him as purchaser under the will of 1811.

We allege error in that decree.

1st Question. Is the appeal of Patterson properly and fairly before this court? True, there was no order of severance to justify the separate decree against one co-defendant, but we contend, that, under the circumstances of this case, it was competent for the appellant and appellees to set the case for final decree upon all the evidence taken, and the result of such action cannot be to prejudice the other parties in any respect; for if they can materially change the aspect of the case by additional evidence, the judgment of this court on our case will not conclude them. We refer in support of this position to the following authorities. 2 Dana, 422; 2 Bibb, 167; Pract. Reg. 16; 1 Peters, 306; 3 Munford, 368, 374, 397; 6 Harr. & Johns. 10; 3 Dallas, 401.

The course pursued by Mr. Patterson in separating himself from his co-defendants is not the result of collusion with the appellees. If it were, it would be impotent. But it is the fruit of an anxious desire on his part to meet the claims of this claimant fully and fairly on the merits, without delay or resort to any of those dilatory proceedings which have thrice been overruled in this court.

Mr. Patterson wishes to know as speedily as possible whether he is the owner of this property; and he has introduced, as he believes, matter enough in this record to destroy this claim,—at least he has introduced all the evidence known to him.

We are thus attentive to such an imputation of collusion, because, at the argument of a motion to dismiss this appeal made some years ago by the counsel of Caroline Barnes, one of the present counsel understood such an imputation to be made or insinuated in this court by the counsel of Caroline Barnes.

We will, in repudiating this charge, as we do indignantly, by the authority of Mr. Patterson, add to the denial, in his behalf, our own declaration, as officers of this high court, that our instructions have been to defeat the claim of Mrs. Gaines, if possible, by every fair and honorable argument; and in behalf of Mr. McHenry, of New Orleans, we state that a correspondence between him and the gentleman who was understood to make the charge has resulted in acquitting him, as counsel of Mr. Patterson, from every imputation.

2d Question. Has Mrs. Gaines any title to the property in dispute, as alleged devisee under the will of 1813?

We meet this question by showing from the record that, although there is evidence to prove that Clark had made a will some weeks before his death, declaring Myra his legitimate child and sole heir, yet that will is not proved to have been in existence at his death, save by his dying declarations, which are no evidence whatever of the will being then in existence. Jackson v. Betts, 6 Cowen, 382.

These dying declarations were the delirious ravings of a man in extremis, oblivious of the fact that he had himself destroyed a will made to practise a pious but posthumous frand, for the purpose of gratifying an inordinate love for Myra, but a fraud which it is fair to presume, upon this evidence, his sober after-reflections induced him to shrink from, and with his own hands to destroy that will which, if he died without cancelling, would, to his conscience and his God, present him as dying with a falsehood on his lips.

But if the will were existent at his death, it was olographic, and there are not as many competent witnesses to the will as the law required, for the laws then in force exclude women as incompetent. 2 Partidas, 964, Law 9; 1 ib. 23; Laws of Orleans, 230, art. 105.

But this court, in 2 Howard, 646, have settled that this will of 1813 cannot confer title until duly admitted to probate. Therefore, Mrs. Gaines's title, as devisee, cannot be relied on to sustain the decree against Patterson.

3d Question. Is Mrs. Gaines the child and forced heir of Daniel Clark?

Her bill of complaint alleges her birth in July, 1806, and that up to Clark's death, in 1813, she was called Myra Clark, but after his death, and up to her marriage in 1832, she was called Myra Davis, and was kept in ignorance of her true name and parentage, that is, from 1813 to 1832, a period of nineteen years, and until she was twenty-six years of age, and that in 1832 she learned her rights by accident.

Such is her own showing, and as part of her evidence she brings forward Davis, the very man who had been intrusted by Clark with the sacred deposit of his child. See Davis's own deposition, Record, 181, 5th, 6th, and 7th answers. And see Clark's solemn appeal to him in his Philadelphia letter, Record, 183.

Davis says that Clark told him Myra would be his heir. Record, 183, 184.

Now if Davis had not known and ascertained that Myra was an adulterous offspring, incapable by the laws of Louisiana of receiving the munificent but insane bequests of Clark, and that her claims founded on Clark's latter conduct were untenable, how can his treatment of Myra be viewed in any other light than as a shameless abandonment of his solemn trust?

If Davis suppressed the true history of Myra with a conviction that its knowledge would be her triumph, words could not be found adequate to the denunciation of his conduct. But we think the explanation of this conduct is to be found in the fact, that Davis knew this unfortunate offspring of guilty parents to be banned and barred by the policy of the laws of Louisiana, and that to acquaint her with the intentions of Clark towards her would be to lead her into endless and idle litigation. Neither Davis nor his wife attempts to explain their conduct in keeping Myra ignorant of her rights, if they believed she had any. And if her claims are just, the conduct of Davis is directly impeached by the evidence of her own witness, Belle Chasse. General repute called her the child of Davis. See the evidence of Madam Despau, Record, 165; Caillaret, Record, 169; Thiling; Record, 334; Coxe, Record, 337; Bois Fontaine, Record, 356; Mrs. Smith, Record, 136.

If, as we hereafter propose to establish, the intercourse between Clark and her mother was illicit at all times, then his belief as to his paternity amounts to nothing, especially when it is proved that she does not resemble Clark, as did Caroline Barnes, the elder child. See Coxe's deposition, Record, 336.

Clark's acknowledgments should have been before a notary and two witnesses. Code of 1808, p. 48, art. 24-26.

If alimony alone is sued for, such informal acknowledgments might be sufficient. Code of 1808, p. 50, art. 31; ibid., p. 154, art. 45; ibid., p. 156, art. 45.

If Myra was the illegitimate offspring of Clark, alimony is all she can claim. Code of 1808, p. 156, art. 46; ibid., p. 48, art. 28; ibid., p. 154, art. 45.

But going beyond the character of natural child, Mrs. Gaines claims to be the child of Clark by a lawful marriage of her mother with him. And in considering this claim, we first examine the nature and effect of Clark's declarations, which are said to prove the fact.

Conceding, ex gratia, that in 1813, by the pretended will of that year, Clark attempted formally to declare her legitimate, yet how can his genuine and undoubted will of 1811 be reconciled with such latter attempt?

In 1811, Myra was five years old, and living in New Orleans, as Clark well knew, and yet at the time of his undertaking a sea-voyage he executes that will, wholly pretermitting any notice of Myra, and willing all his estate to his mother.

Why did he overlook Myra? Was he the unprincipled father, who would disinherit his young and innocent offspring? No, he was not unmindful of her claims, and he sought to provide for her in the only secret and stealthy mode permitted by the penal laws of Louisiana.

He executes various deeds to Belle Chasse, De la Croix, and Davis, on blind trust, for Myra's benefit, thus creating no legal right for Myra, but an honorable claim on the consciences of these friends for a handsome property. See their depositions.

Who can believe that an anxious father would thus hazard the whole property designed for his helpless and lawful child, by blind confidence in the honor of human beings, when by will or deed he could guard her rights effectually and beyond contingency?

We defy and challenge any satisfactory explanation of these acts, consistent with the claim of Mrs. Gaines. But if, as we allege, Clark knew her to be the adulterine offspring of Madame de Grange by him, then his conduct can well be understood. For, by the laws of Louisiana, an adulterous offspring can receive from its parent nothing but alimony, either in the shape of donations inter vivos or causa mortis. Code of 1808, p. 212, art. 17.

This statutory interdict, then, was the cause of Clark's making his will of 1811, and creating blind trusts for the benefit of Myra.

But there are other acts of Clark which go to destroy his later attempt to efface the stain on Myra's birth, such as the secrecy with which her birth was guarded, and the haste with which he tore the tender infant from her mother's breast; his never suffering this child to dwell under his roof; and, last y, his attempt, after his pretended marriage with the mother of Myra, to marry Miss _____. See deposition of Madame Despau.

These acts of Clark, when arrayed against the will of 1813, if it were here in court, subscribed by his hand, would speak the truth with a power and eloquence which no after conduct of his could resist.

The truth is, that the inconsistent will of 1813 arose from the increase of affection for his natural child, who daily fastened on his heart, as proved by her own witnesses, and in the infatuation of his love he madly conceived the purpose of making a will declaring her his lawful child and universal legatee.

This pious fraud was frankly avowed to his bosom friend, the Chevalier de la Croix. See his deposition.

But, doubtless, as he dwelt more upon the moral crime of perpetrating this fraud on society, and on the truth, he tore that will with his own hands, and hence its non-appearance, though, in the delirium of fever, he murmured of it as still existing.

Then we assert that Clark's acts and conduct are the strongest witnesses against the claim of Mrs. Gaines as his heir at law.

Let us see if the mother of Mrs. Gaines has not also testified against this pretended marriage.

If she was Clark's wife, as pretended, she afterwards committed rank bigamy in marrying Gardette, living Clark. See Coxe's evidence, and the marriage certificate.

Nay, she told Coxe, that, so far from being married to Clark, she had only his promise to marry.

Then both Clark and his pretended wife have testified against their intermarriage, and if they so testify, who is the witness to outweigh them? Madame Despau is the solitary witness to the marriage,—a sister of Myra's mother.

Madame Despau impeaches herself by showing her privity with the marriages of her sister to both Clark and Gardette, and her reasons are flimsy for a justification. Record, p. 164. It was rash enough for her to stand by, in the lifetime of Jerome de Grange, the first husband of her sister, and see that sister marry Clark, with nothing to shield her from bigamy but the statement of Gardette, that, to his knowledge, De Grange had a prior living wife.

All this, as stated by her, is bad enough; but her inconsistency about De Grange twice flying, her attempt to palm off Caroline Barnes as the child of De Grange, her statement that the visit of herself and sister in 1803 was to hunt up the records at the North of De Grange's prior marriage, when Coxe proves that their visit was in 1802, and that in that year her sister, in Philadelphia, gave birth to Caroline, at which time De Grante was absent in Europe,—all these things taint and condemn this witness, and her unsupported testimony to this factum of marriage must fall.

No one can doubt, on these facts, that, so far from Madame de Grante and Clark going to Philadelphia to hunt up records and have a marriage, they went there to shroud from the eye of observation the birth of Caroline, the first fruit of an adulterous intercourse between Clark and the mother of Myra.

If Madame Despau be 'falsa in uno, falsa est in omnibus.' See The Santissima Trinidad, 7 Wheaton, 283. Madame Despau is the universal marriage witness of her sister, who, on her own evidence, had three husbands, all living at the same time; first, De Grante, then Clark, and then Gardette. She says that while in Philadelphia, on the occasion of a visit, some years after the marriage of Clark, her sister married Mr. Gardette, because she was told, in the presence of Madame Despau, by Coxe and Smythe, a lawyer, that her sister could not prove her marriage to Clark. Record, 164.

Where, we ask, was her own proof? Where Mr. Dorvier, the other witness stated by her to Clark's marriage? But where was her sense of virtue, that would suffer her to stand by and see her sister marry Gardette, living Clark? And this bigamy with Gardette is perpetrated and connived at by two sisters who had warred against the bigamy of De Grange, as the complainant alleges.

If we believe Madame Despau, she and her sister, Madame de Grange, had, in 1808, to abandon all hope of proving a splendid marriage with Clark, which the child of that pretended marriage expects now to prove, after the lapse of thirty-nine years. Madame Despau says that her sister Zuline had two children by De Grange. Record, 164 and 166. Yet another sister, Caillaret, says no child was born of that union. Record, 293. And afterwards Madame Despau, in a subsequent deposition, shifts her evidence on this point and conforms it to Madame Caillaret's statement. But establish the factum of an intermarriage between Clark and the mother of Myra, which cannot be, yet that mother was already the lawful wife of Jerome de Grange, who was then and afterwards alive. This prior marriage of Zuline to De Grange is proved by Mrs. Gaines's own witnesses, Madame Despau and Madame Caillaret, in 1796. How then could Madame de Grange contract marriage with Clark in 1803, unless De Grange was dead, which is not pretended? Because it is said De Grange's marriage with Zuline was null, by reason of his having a prior wife alive in 1796. Where is the proof of this allegation?

There are but three attempts to prove this allegation in the record, viz.:—First, the hearsay of Gardette, that he knew De Grange had a prior living wife. This hearsay is no evidence against us, as we have no claims under Gardette.

Secondly, that a report was current in New Orleans that a woman came there claiming to be the wife of De Grange. But where she came from, or where she went, no one knows, and common report is no evidence of such a fact. Mima Queen's case, 7 Cranch, 290.

Thirdly, the confessions of De Grange that his marriage with Zuline was void by reason of his prior marriage.

To this we answer, that these confessions are as much hearsay when brought against us, as Gardette's statements were; for we do not claim under De Grange, and to let his unsworn statements go in evidence against us would be to make our rights depend upon his ex parte statements, without any means or opportunity to us of testing their truth or falsehood. Morgan v. Yarborough, 11 Louis. R. 76.

We have spoken of but three attempts to prove De Grange a bigamist, for we will not even call the failure to prove him so by record proof an attempt.

On the face of complainants' bill, it appears that the defendant, Patterson, claims under the will duly probated, and dated 1811. And Patterson, being a third possessor, cannot be ousted until she has discussed, that is impeached, the will of 1811, by proceeding against the legatees therein. Hodder v. Shepherd, 1 Louis. R. 507; Code of 1808, p. 214, art. 26; ibid., p. 216, art. 37-39. She ought to have sued to discuss that will in four years after her majority, or eight years at farthest. 2 Partidas, 1046; 1 ibid. 384; Constitution of 1812, art. 4, § 11.

By these laws she was barred in July, 1831, or July, 1835, at farthest, which is before the bill was filed, and the benefit of this prescription appears on the face of her bill, and need not be pleaded.

We insist that the title of Patterson was legally derived under the will of 1811, and that the sales were all regular and valid in every respect.

And in conclusion, if there be a doubt on this whole case, it should inure to the benefit of bon a fide purchasers, whose titles ought not to be overturned in a case like this.

For Mrs. Gaines, personally, we feel every sympathy; but how often is it that the innocent offspring is made to suffer for the acts of the parent! And if ever parents deserved condemnation here or elsewhere, these parents have deserved it. A mother who, for the world's false esteem, would discard from her maternal breast two helpless infants, and never again look upon her own offspring, a mother who, upon the case made by her own daughter, stands convicted of adultery before her pretended marriage with Clark, and with bigamy afterwards,—such a mother is above the judgment of human tribunals. And what shall we say of the conduct of Daniel Clark, if Myra be his lawful child, and Madame de Grange was his lawful wife? Courting another woman while his wife was living, and at his death forgetting that she had been his wife, although he had, as pretended, pronounced her blameless, participating in the crime of separating two infants from their mother to save the paltry pride of that mother,—such a man, if the claims of this lady be just, should be consigned to infamy in all human estimation. Even now, the web of destiny hangs around this unfortunate but innocent offspring, and the dreadful past cannot be recalled. After the lapse of forty years, the sun of truth shines upon this dark and adulterous intrigue, revealing all its deformity on the highest judicial records, and showing the vanity of Clark's latter attempts to efface the stain, if it could be called a stain, which his own wild passions had placed upon his child at her birth.

The Reporter is compelled to omit the arguments of Mr. Johnson and Mr. Jones, the counsel for Gaines and wife, as their insertion would make the report of this case too long.

Mr. Justice WAYNE delivered the opinion of the court.

The history of this case will be found in the report of the case of Gaines v. Relf and Chew, in 2 Howard, 619.

This is the fourth time that the cause has been before this court. Its decision, in each instance hitherto, has been in favor of the complainants.

The third time, it was brought here upon points upon which the judges in the Circuit Court were divided in their opinions. They arose upon the argument of demurrers, filed by several of the defendants.

It was said there was a want of equity in the bill; that there was a complete remedy at law; that the bill was multifarious, and that there was a misjoinder of parties; that the will of 1813, upon which the complainants relied for a recovery, had not been admitted to probate; and that if the complainants relied upon Mrs. Gaines being the forced heir of Daniel Clark, whatever that right might be, it was recoverable at law.

Upon the argument of the demurrers, three points were made upon which the judges could not agree, and they were certified to this court for its decision.

Those points were,——

1st. Was the bill multifarious, and have the complainants a right to sue the defendants jointly in this case?

2d. Whether the court could entertain urisdiction of the cause, without probate of the will set up by the complainants, which they charge to have been destroyed and suppressed?

3d. Has the court jurisdiction of this cause, or does it belong exclusively to a court of law?

On the first point, this court, for reasons which are as satisfactory to us as they were to the judges who then heard the argument, decided that the bill was not multifarious; that there was no misjoinder, excepting that the purchasers of the property of Daniel Clark had no interest in the rendition of the accounts by the executors, under the will of 1811, nor any with what might be the interest of Caroline Barnes in the will of 1813; that those particulars ought not to be connected with the general object of the bill, but that it could be so amended, in both respects, in the Circuit Court, as to avoid the exceptions.

Upon the second point, this court, upon a full review of the authorities, came to this conclusion,—that both the general and local law require the will of 1813 to be proved in the Court of Probates before any title can be set up under it; but that this result did not authorize a negative answer to the second point.

The court said, that, under the circumstances of the case, the complainants were entitled to full and explicit answers from the defendants in regard to the wills of 1813 and 1811, and that such answers, being obtained, might be used as evidence before the Court of Probates to establish the will of 1813; and to revoke that of 1811. The answer was pertinent to the inquiry, and nothing beyond it. We have adverted to it to show that the decree of the Circuit Court now under consideration has no connection with the will of 1813, and that it was made by that court under the answer given by the court to the third point.

The third point was, Has the court jurisdiction of the cause, or does it belong exclusively to a court of law?

This point involved the jurisdiction of the court in every aspect in which the bill could be viewed. So the court considered it. The claim made in the bill for Mrs. Gaines did not rest alone upon the alleged will of 1813, but also upon the allegation that she was the legitimate child of Daniel Clark, and under the law of Louisiana, was his forced heir. The court said, 'The complainants, in prosecuting their rights upon the ground of Mrs. Gaines being the heir at law, no probate of the will of 1813 will be required. They must rest upon the heirship of Mrs. Gaines, the fraud charged upon the executors to 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 proper relief without decreeing the revocation of the will of 1811.'

Such were the answers given by this court to the points which had been certified to it.

The Circuit Court, in the subsequent trial of the cause between the complainants and the appellant, Mr. Patterson, has decreed that Mrs. Gaines is the forced heir of Daniel Clark, or in other words, that, being his legitimate child, she was entitled, under the laws of Louisiana, to her l egitime in his estate at the time of his death.

This decree was made upon the pleadings and proofs in the cause, put in by the complainants and the appellant, Charles Patterson. He was one of the defendants who had not demurred to the bill. Before those demurrers had been filed, Mr. Patterson had filed his answer, by his counsel, but not under oath, having availed himself of the waiver in this respect tendered to the defendants by the complainants. To that answer there was a general replication. The parties having introduced their proofs, the case was regularly in order for a hearing. It was heard at the earnest desire of both parties. No suggestion was made in the Circuit Court below, that it would direct an issue to be made for the trial of the legitimacy of Mrs. Gaines by a jury. No such desire has been expressed by the counsel of the appellant in this court, though it was intimated that it ought to have been done. We do not think it an occasion for such a course to be pursued.

The practice of granting issues is limited to cases in which the court, in the fair exercise of its discretion, considers that justice will best be obtained by that course. Discretion, we mean, as it is guided by what has been the practice of courts of chancery. Gardner v. Gardner, 22 Wendell, 526; Drayton v. Logan, Harp. Eq. 67; 3 Paige, 457, 601.

In the English chancery, except in the case of an heir at law or of a rector or vicar, it is not a matter of right. In the American courts of equity we know of no practice establishing an issue as a matter of right. In Virginia and others of our States, the heir's right to an issue is given by statute. As the English chancery, in the exceptions mentioned as a matter of right, has allowed them, upon the ground that the common law 'invests a party filling a particular situation with certain rights, of which it is the object of the suit to divest him, we presume that where, by operation