Succession of Townsend

• Decision Date: 01 February 1888
• Docket Number: 9820
• Citation: 40 La.Ann. 66,3 So. 488
• Court: Louisiana Supreme Court
• Parties: SUCCESSION OF KATE TOWNSEND. v. THE STATE OF LOUISIANA v. TROISVILLE E. SYKES. -- MRS. ELLEN TULLY ET AL., INTERVENORS

3 So. 488

40 La.Ann. 66

SUCCESSION OF KATE TOWNSEND.

THE STATE OF LOUISIANA v. TROISVILLE E. SYKES. -- MRS. ELLEN TULLY ET AL., INTERVENORS

No. 9820

Supreme Court of Louisiana

February 1, 1888

APPEAL from the Civil District Court for the Parish of Orleans Houston, J.

M. J Cunningham, Attorney General, and W. B. Sommerville and Omer Villere, for the State, Plaintiff and Appellee.

Merrick & Merrick, for Intervenors, Appellants.

A. J Murphy, for Defendant and Appellee.

Breaux & Hall, for the Public Administrator, Appellee.

POCHE J. FENNER, J., concurs.

OPINION

POCHE, J.

This litigation involves the question of the title to the property left by Kate Townsend, a noted courtesan, who died in New Orleans on the 3d of November, 1883.

At her death she left a will by notarial act, executed on the 9th of September, 1873, by which she bequeathed all her property to one Troisville E. Sykes, whom she therein instituted her universal legatee, appointing him also executor of her said will.

In December of the same year the State brought the present suit for the purpose of annulling and setting aside the will on several grounds, the principal of which was that Sykes, the universal legatee had murdered the testatrix.

Pending this litigation between the State and Sykes, which also involved the alleged right of the State to the ownership and possession of the succession property in default of heirs, a petition of intervention was filed by Mrs. Bridget Cunningham claiming to be the mother, by Mrs. Ellen Tully, claiming to be the sister, by Timothy J. Cunningham, claiming to be the brother, and by Mrs. Mary Connolly, claiming to be the niece of the deceased, and thus seeking to be recognized as her heirs at law.

Intervenors joined the State in seeking the nullity of the will, but opposed the demand of the State to be called to the succession, which they claimed as the legal heirs of the deceased.

The trial below resulted in a judgment which annulled and set aside the will of Kate Townsend, rejected the demand of intervenors, decreed the State to be the heir at law of the deceased, and entitled as such to the ownership and possession of all the property belonging to the succession. From that judgment intervenors alone have appealed, and thus the issue presented to this court is restricted to the conflicting claims urged by them and by the State.

The claim of the State is predicated on the various articles of the Civil Code which provide in substance that the State inherits in default of relations, a surviving husband or wife, acknowledged natural children or valid donations.

Article 485 of the Code reads: "The successions of persons who die without heirs, or which are not claimed by those having a right to them, belong to the State."

Article 917 is as follows: "When the deceased has left neither lawful descendants, nor lawful ascendants, nor collateral relations, the law calls to his inheritance, either the surviving husband or wife, or his or her natural children, or the State, in the manner and order hereafter directed."

Article 929 provides that: "In defect of lawful relations, or of a surviving husband or wife, or acknowledged natural children, the succession belongs to the State."

Article 1095 reads: "A succession is called vacant when no one claims it, or when all the heirs are unknown, or when all the known heirs to it have renounced it."

Article 1204 contains the following provisions: "The funds of vacant successions or absent heirs, paid into the Treasury of the State, remain in deposit until claimed by the heirs or those having a right to them."

"These funds may be made use of, but their reimbursement is provided for and guaranteed on the faith of the State, so that the heirs, who present themselves, meet with no delay in receiving them."

And it may be noted that in this connection, Article 229 of the State Constitution proposes to make the following disposition of such funds: "The school funds of this State shall consist of:" * * * "5. The proceeds of vacant estates falling under the law to the State of Louisiana." Under the effect of the unappealed portion of the judgment rendered in the case, the court has no concern with the question of the existence of a valid donation as the projected testamentary donation has been annihilated, and the record suggests no inquiry under the issues to be reviewed, as to the existence or right of a surviving husband, or of lawful descendants or of natural children.

Hence the inquiry must be directed to the alleged existence, and claims of a lawful ascendant and of collateral relations.

These are the claims urged by the intervenors, who rest their right of recovering the succession on the following facts: That the true name of Kate Townsend was "Bridget Cunningham," who was born about the year 1833, in the town of "Rashina," King's county, Ireland, of the lawful marriage of George Cunningham, now dead, and of Bridget Mitchell, now the widow of George Cunningham, and one of the intervenors herein. That Bridget Cunningham left Ireland in the year 1849, and soon thereafter landed in the city of New York, State of New York, where she remained in the company of friends and acquaintances for the space of about one year, after which she disappeared, and was no more seen or heard of by any of the members of her family until her death in this city in November, 1883, when she was killed under the assumed name of "Kate Townsend," which name she had assumed in order to conceal her identity, by reason of the life of shame, as a prostitute, which she had led in this city for many years previous to her death.

On the part of the State, it is contended that Kate Townsend never bore the name of "Bridget Cunningham," that she has no mother, brother or sister or other collateral relations living, that she came directly from Liverpool to New Orleans in the year 1858, under the name of "Martha Wingfield" which was itself an assumed name. That at the date of her arrival here, she was not more than eighteen or nineteen years of age, and that therefore she could not have been born in or about the year 1833. It is also contended that Kate Townsend was the natural and adulterous child of a woman who died in London before the departure of her daughter, who was her only child, for this country, and that Kate Townsend never was in New York previous to her arrival in this city in the year 1858.

The trial of those issues lasted weeks in the district court, culminating in an enormous record containing nearly four thousand pages of testimony, an examination of which by this court consumed several months of time and of incessant labor.

During the progress of the trial below several hundred bills of exception were reserved from the various rulings of the district judge, by both parties, but principally by intervenors' counsel. Fortunately for the administration of justice by this court in its other business, many of those bills have been practically abandoned on appeal, and those which call for rulings here, can be classified, and thus more easily disposed of.

One of the main grounds of contention below grew out of the oft reiterated objections by intervenors' counsel to the right, claimed by counsel for the State, to propound on cross-examination leading questions to the numerous witnesses who were introduced by the defendant, Sykes. An inspection of the record shows that on some of the issues to be solved under the pleadings; for instance, the alleged identity of "Kate Townsend' and "Bridget Cunningham," the interests of Sykes were identical with those of the State, and on the other hand, on the issue of Sykes' alleged incapacity and unworthiness as a legatee, the interests of the State were common with those of intervenors.

In a contest between three parties, such a feature is frequently unavoidable. But such an incident did not and could not affect or destroy the nature of the issues which were clearly made out by the pleadings between the parties. Hence such a circumstance could not placate the antagonism between the State and Sykes, more than it could reconcile the differences between the State and the intervenors, or between Sykes and the latter. Hence there was no feature of the trial which could remove the mode of examining witnesses beyond the scope of the familiar rule which authorizes leading questions by one of the parties, to the witnesses introduced by his adversary in the litigation. Hence the district judge must be upheld in his rulings which conformed with these views.

The State complains of several rulings of the judge touching the mode of conducting the trial. It appears that intervenors were allowed to suspend the introduction of their testimony owing to the absence of some of their witnesses, during which interruption, Sykes and the State were required, over their objections, to present their testimony. While it is true, as contended for by the State, that this ruling favored intervenors, in so far as it resulted in informing them of the means of defence which they had to meet, yet it is clear that it was made within the legal discretion vested in all trial judges. Hence, such rulings cannot be reversed by an appellate court.

On appeal intervenors invoke a ruling on one of their numerous bills of exception, which is levelled at the ruling of the judge in denying their motion to strike out of the record the entire testimony of a Mrs. Margaret Littlefield, a witness introduced by the Defendant Sykes. The motion was predicated on the ground that the witness had failed to appear on a day fixed by the court for the purpose of being further cross-examined by intervenors' counsel, and that notwithstanding diligent search the witness could not be found in the...