Answer to the thirteenth cross-interrogatory. | and under what circumstances? And if you 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, nee 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 Wm. Wallace Whitney and V. P. O'Bearn et al. Court of 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 [*569 communications so confidential as those relating to his will? If any, 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 Interrogatories to be propounded to Witnesses exceptions to the interrogatories in chief, the 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? 568*] *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; and 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 anyone in your presence, the contents of said will. And if so, state the whole of said declarations, and the was same not being pertinent issue, the answers: 2d. In reply to the second interrogatory he 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 5th. State how long before his death you to take pleasure in talking to me about her. 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. 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 6th. State whether you ever heard anyone with great affection, and as being left his estate say he had read the said will. If so, state 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, 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. four months before his death, he had often Mr. Relf went below. When I went below, I necessary_that I state what was communicated consent of the complainants and the defendant told me that he was making his last 570*] *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 571*] *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. Reif 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, 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. Clarke 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 Bell 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 [*572 possess a house and lots, and derive my revenue from my slaves, cows, etc. I am in no manner connected with, or related to, any of the parties of this suit; I have no interest in this suit. engaged *i 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 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 nee 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 573*] 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. Pierre Baron Bois Fontaine. (Signed) 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: Edmund P. Gaines et al. V. Chew & Relf et al. } No. 122. 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 [*574 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. J. McKinley, Presiding Judge. 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 cause 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 This cause having come for final hearing, by authority of the executors therein named. 7. That the decree is otherwise erroneous and the property in dispute, as alleged devisee under wrongful. 8. That she is not the child of Clark. The argument of Mr. Brent and Mr. May was as follows: The bill of complainant, was filed in the Circuit Court of the United States for the District of Louisiana, against the appellant and numer575*] *ous other defendants. The answers (original and supplemental) of Patterson disclose the nature of his title as bona 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. 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 practice a pious but posthumous fraud, 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 con 1st. Question. Is the appeal of Pattersonscience and his God, present him as dying with 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 Mumford, 368, 374, 397; 6 Harr. & Johns. 10; 3 Dallas, 401. The course pursued by Mr. Patterson in sep arating 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 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 possible whether he is the owner of this prop-sacred deposit of his child. See Davis's Own erty; 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 cor576*] respondence 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 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 [*577 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 1811 Myra was five years old, and living in New Orleans, as Clark well knew, and yet 578*] at the time of his undertaking a *sea voyage he executes that will, wholly pretermitting any notice of Myra, and willing all his es-ing Gardette, living Clark. See Coxe's evitate to his mother. 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 Madame 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. Clarks Clark's acknowledgments should have been before a notary and two witnesses. 1808, p. 48, art. 24-26. Code of 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 pretende formally to declare her legitimate, yet how can his genuine and undoubted will of 1811 be reconciled with such latter attempt? either in the shape of donations inter vivor 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, lastly, 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 afterconduct 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 [*579 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 nonappearance, 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 his pretended marriage. Why did he overlook Myra? Was he the unprincipaled 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 Loui siana. 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 re If she was Clark's wife, as pretended, she afterwards committed rank bigamy in marry dence, 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. 604. 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 ceive from its parent nothing but alimony, I visit was in 1802, and that in that year her sis |