Edwin Adams, Plaintiff In Error v. Samuel Norris

• Citation: 16 L.Ed. 539,23 How. 353,64 U.S. 353
• Parties: EDWIN G. ADAMS, PLAINTIFF IN ERROR, v. SAMUEL NORRIS
• Decision Date: 01 December 1859
• Court: U.S. Supreme Court

64 U.S. 353

23 How. 353

16 L.Ed. 539

EDWIN G. ADAMS, PLAINTIFF IN ERROR, v. SAMUEL NORRIS.

December Term, 1859

THIS case was brought up by writ of error from the Circuit Court of the United States for the districts of California.

It was an ejectment brought by Adams and Grimes, citizens of Massachusetts, against De Cook and Norris, to recover a rancho in California. The amended complaint reduced the parties to Adams, plaintiff, against Norris, defendant.

Adams claimed, as representing the heirs at law of one Eliab Grimes, and Norris under a codicil to the will of Grimes. The question therefore was, whether the will should stand.

Grimes, who was a Mexican citizen by naturalization, made a codicil to his will in 1845, by which he devised the rancho to his nephew, Hiram Grimes, under whom Norris claimed. The codicil was signed by himself and executed 'before me, in the absence of the two alcaldes.

'ROBERTO T. RIDLEY, Sindico.

'Witnesses: NATHAN SPEAR.

GUILLERMO HINCKLEY.'-

Upon the trial, the plaintiff made out his title, when the defendant offered the original will and codicil in evidence, the will never having been probated.

The witnesses were all dead. Hinckley died in 1846, Spear in the fall of 1849, and Ridley in April, 1852. Grimes, the testator, died in November, 1848.

The first exception was as follows:

The plaintiff admitted the genuineness of the signatures to the documents A and B, and they were given in evidence without objection; but the plaintiff objected to the admissibility of document C, upon the following grounds:

First. Because a paper offered in evidence as a will or codicil without probate, and which has never been duly probated, cannot be admitted in evidence for want of such probate, and does not become a will until probated.

Second. Because the courts of the United States have no probate jurisdiction; and no document or paper purporting to be a will can be probated in any court of the United States.

The court overruled the said objections, and admitted the said document to be given in evidence, and permitted the defendant to offer proof of the execution of said document, the the same not having been admitted to probate by any probate or other court.

The complainant then and there immediately excepted to the ruling of the court, and the exception was then and there allowed.

It would be tedious to follow the trial through the numerous points made, prayers to the court, and rulings thereon; and unnecessary, because the substance of them is stated in the opinion of the court. The jury found for the defendant, and the plaintiff brought the case up to this court.

It was argued by Mr. Benjamin and Mr. Cushing for the plaintiff in error, and by Mr. Johnson and Mr. Stanton for the defendant.

The California cases referred to in argument were the following:-

Panaud v. Jones, 1 California Reports, 497.

Castro v. Castro, 6 California Reports, 158.

Grimes's Estate v. Norris, 6 California Reports, 621.

Tevis v. Pitcher, 10 California Reports, 465.

1 McAllister's Reports, (this case,) 253.

The arguments of the counsel upon both sides, investigating minutely the provisions of the Hispano-Mexican law in force in Mexican California, and referring to the authorities upon that branch of jurisprudence, would not be interesting to the generality of the readers of this volume, and are therefore omitted.

Mr. Justice CAMPBELL delivered the opinion of the court.

The plaintiff claimed, as the assignee of heirs at law of Eliab Grimes, deceased, the title and possession of an undivided seven-eighths of a parcel of land in Sacramento county, known as the rancho del Paso, containing ten square leagues, being the land granted to Eliab Grimes by Micheltorena, Governor of California, the 20th December, 1844. The defendant resisted the claim, as the assignee of Hiram Grimes, who is a devisee of the land by a codicil to the last will of Eliab Grimes, which is in the Spanish language, and of which the following is a translation:

'SEAL FIRST—EIGHT DOLLARS.

'Provisionally empowered by the maritime custom-house of the port of Monterey, in the Department of the Californias, for years eighteen hundred and forty-four and eighteen hundred and forty-five.

PABLO DE LA GUERRA.

'MICHELTORENA. [SEAL.]

'I, Eliab Grimes, a Mexican citizen by naturalization, having to add a codicil to my testament heretofore made, and desirous of doing it in conformity with law established in this Republic, do make and declare it to be of my will and intention, in presence of the alcalde of this jurisdiction, his secretary, and two witnesses of assistance, as follows:

'Codicil 2d. I give and bestow to Hiram Grimes, my nephew, all the right and title which the Government conceded to me to the rancho known (or named) as the 'rancho del Paso,' in Upper California, situated on the American river, as is delineated and appears in the plan and title, the original of which exists in the public archives of Monterey, together with all the cattle, horses, and other animals, that are on said rancho, as also all the buildings and laboring and cooking utensils, and all other property of mine which is met with on said rancho, deducting always a certain proportion of all the cattle, horses, and other animals, and of their produce, for those who have had the care of said rancho, in payment of their services, according to the agreement made.

'And in order that it may be evident, I sign in the manner above expressed this 18th day of April, 1845, at the pueblo of San Francisco de Asis, and at the same time there remains deposited a copy in the archives of the same.

'ELIAB GRIMES.

'Before me, in the absence of the two alcaldes.

'ROBERTO T. RIDLEY, Sindico.

'Witnesses:

'NATHAN SPEAR.

'GUILLERMO HINCKLEY.'

The verdict and judgment in the Circuit Court were in favor of the defendant; and the cause is presented to this court upon exceptions to decisions of the presiding judge in the course of the trial.

The defendant, to sustain the codicil, established, by the admission of the plaintiff, the genuineness of the signatures of the testator and of the witnesses to the codicil, and that they were all dead, the testator having died in 1848. He also adduced the testimony of a number of witnesses to prove the existence of a custom in California as to the mode of making wills prior to any change in the Mexican law by the State Government, and that Grimes, shortly before his death, had informed a witness that he had devised his place of del Paso, with the stock on it, to Hiram Grimes, his nephew, and desired of him some aid for his nephew in the settlement of his affairs. No other testimony is reported in the bill of exceptions. It was contended, on behalf of the plaintiff, that the codicil was not competent as evidence, nor sufficient to transfer property:

1. That the codicil had never been admitted to probate in California, and that the proof of the signatures to the codicil was not sufficient to establish its validity.

2. That there is no statement in the paper itself tending to show that the disposition was dictated by the testator in presence of the witnesses, or read over to the witnesses in the presence and hearing of the testator, they being present at one and the same time, without interruption or turning aside to any other act, and having been so dictated, or so read over, was declared by the testator to the witnesses to be his last will and testament.

3. That three witnesses of assistance are necessary to the validity of a will, and that the sindico, not having professed to act as a witness, and being without authority to receive wills in that capacity, the codicil is void for want of the sufficient number of witnesses, and that this deficiency could not be cured by proof of any custom at variance with the written law.

The court did not support these objections, but instructed the jury that a will, executed under the Mexican laws, in presence of only two witnesses, affords no sufficient proof of the execution. But if they should be satisfied, from the proofs in this case, that a uniform and notorious custom existed uninterruptedly for the space of ten years in California, which authorized the execution of wills in the presence of two witnesses only, and which custom was so prevailing and notorious that the tacit assent to it of the authorities may be presumed, then the proof of such a custom, and for such a length of time, will operate a repeal of the prior law, and that two witnesses will be sufficient. On the contrary, if a custom of the character described and for the period mentioned was not proved to their satisfaction in such case, if three witnesses have not attested to the codicil, it is a nullity.

The court further instructed the jury, that if, from the evidence and under the instructions given, they should find three witnesses required, they will inquire whether each and all of the three witnesses to the will is or are competent; that the will being written in the Spanish language, if either of the witnesses did not speak or read that language, and could not understand the disposition of the property made by it, and that the testator was in the same predicament, such witness would be incompetent, and, unless the custom was established, the codicil would be null; but if the custom was established, that custom would control the case; and if the signatures of the testator and of a sufficient number of witnesses is established, in the absence of countervailing testimony, the jury may infer a due execution of the will. This selection from some twenty exceptions will sufficiently present the questions that were considered in the Circuit Court and have been discussed at the bar of this court.

These instructions require an examination of the law of California, previously to its organization as a State, relative to the execution of a testament, and the modification of that law by the revolution made in...