Myra Clark Gaines, Appellant v. Richard Relf, and Beverly Chew, Executors of Daniel Clark and Others

• Decision Date: 01 December 1851
• Citation: 53 U.S. 472,13 L.Ed. 1071,12 How. 472
• Parties: MYRA CLARK GAINES, APPELLANT, v. RICHARD RELF, AND BEVERLY CHEW, EXECUTORS OF DANIEL CLARK AND OTHERS
• Court: U.S. Supreme Court

53 U.S. 472

12 How. 472

13 L.Ed. 1071

MYRA CLARK GAINES, APPELLANT, v. RICHARD RELF, AND BEVERLY CHEW, EXECUTORS OF DANIEL

CLARK AND OTHERS.

December Term, 1851

Mr. Chief Justice Taney and Mr. Justice McLean did not sit in this cause.

THIS was an appeal from the Circuit Court of the United States for the Eastern District of Louisiana.

The bill was originally filed in the Circuit Court by William W. Whitney and Myra Clark Whitney (now Myra Clark Gaines) in 1836. From 1834 to 1836 they had been proceeding in the probate court of Louisiana, until in 1836 their petition was dismissed. They then filed a bill in the Circuit Court of the United States.

At January term, 1839, a motion was made in this court for a mandamus to compel the Circuit Court to proceed according to the rules established by this court for the regulation of chancery proceedings. The case is reported in 13 Pet., 404.

It came up again at January term, 1841, upon a certificate of division in opinion between the judges of the Circuit Court, whether chancery practice should prevail there or not, and is reported in 15 Pet., 9.

The defendants below having demurred to the bill, the case came up again upon another certificate of division in opinion at

January term, 1844, and is reported in 2 How., 619, under the name of Gaines et ux. v. Chew et al.

One of the defendants, Patterson, having answered the bill instead of demurring to it, this branch of the case came before this court again at January term, 1848, and is reported in 6 How., 550.

The present case now came up upon pleas, answers, replications, and evidence, constituting a record of upwards of twelve hundred printed pages. Much of the history of the case and the substance of a considerable portion of the evidence is given in the two reports in 2 How. and 6 How., and the reader is referred to those reports. Some of the most important parts of the additional evidence, introduced into the case for the first time, will be noticed in the present statement.

Mrs. Gaines claimed under two distinct titles; one as the forced heir of her father, Daniel Clark, and the other as the assignee of her mother's share of the estate which had been conveyed to her by her mother. In either view, the lawful marriage between Daniel Clark, her father, and Zulime Carri ere, her mother, alleged to have taken place in 1802 or 1803, was the great point in the case to be proved; and the first step to establish that was the capacity of Zulime to marry. Her previous marriage with Desgrange was admitted; but it was alleged to have been null and void ab initio, because Desgrange had another wife living when he contracted his marriage with Zulime Carri ere. Part of the evidence to sustain this charge of bigamy against Desgrange is recited in the opinion of the court: viz., the testimony of Madame Despau, Madame Caillanet, Joseph Bellechasse, and Madame Bengueril. Two other pieces of evidence were relied upon by the complainant to fix the charge of bigamy upon Desgrange, which are referred to in the opinion of the court with an intimation that the reporter should set them forth with more particularity. They were as follows:

1st. The catholic priest's certificate of Desgrange's prior marriage.

The existence of this paper was discovered in the following manner, as stated in the deposition of James Gardette, taken under a commission:

'And afterwards, to wit, on the 10th July, 1849, appeared Dr. James Gardette, a witness, heretofore called and examined on behalf of complainant, and now by them recalled, doth depose and say,——

'Witness being shown document No. 6, filed with the commissioner by complainant on 23d June, 1849, being a certificate of marriage of one Jacobum Desgrange and Barbara Orci, he was asked to state when and where the same was found. Witness

says: My mother and myself were looking over the papers of Dr. Gardette, my father; several papers fell on the floor, and among them this paper was found. This paper was found after the decision of the Patterson case in the Circuit Court of the United States, and before the decision of the same case in the Supreme Court of the United States. And it was handed by my mother to General Gaines or his wife immediately after it was found.

'JAMES GARDETTE.

'Cross-examination waived by Louis Janin, Esq., of counsel for defendants.

'J. W. GURLEY,

'Commissioner.'

The certificate was as follows. The Latin is given as it is printed in the record.

Exhibit A.

A. G., U. S. Com'r.

'Omnibus has literas, Inspecturis Salutem in Domino.

Ego infrascriptus sacerdos Catholicus et Apostilicus, pastor Ecclesiae S. Petri Apostoli, hinc Praesentibus, notum facio et attestor omnibus et singulis, quorum interest, quod die sexta mensis Julij, A. D. 1790, in matrimonium conjunxerum Jacobum Degrange et Barbara m Orci, Testes praesentes fuerunt, Joannes O'Connell, Carolus Bernardi, et Victoria Bernardi. In quorum fidem, has manu propria scripsi, et subscripsi, vigilloq. muniri. Datum Neo Eboraci, vulgo New York, hac die 11d mensis Septembris, A. D. 1806.

'GULIELMUS V. O'BRIEN,

'Reg. pag., '45.

'Pastor Ecclesiae S. Petri ut supra.

'Nous, Gabriel Rey, g en eral divisionaire, commissaire des relationes commerciales de France, a New York, certifione que Monsieur Guillaume V. O'Brien, dont la signature est appos e a l'extrait de mariage en l'autre part, est pr etre et cur e de l'Eglise Catholique de Ste. Pierre, en cett e ville de New York, et qu'en cette qualit e foi doit etre ajouter a sa dite signature tant en jugement que hors.

'En t emoin de quoi nous avons sign e le pr esente et scell e fait apposer le timbre du commissariat, a New York, le 13 Septembre, 1806.

REY.'

[L. S.]

Indorsed: 'Admitted by defendants as proved, reserving all legal objections to its admissibility as evidence.

'J. W. GURLEY, Commissioner.'

In order to fortify this certificate, the depositions of Ellen Guinan, John Power, and Charles E. Benson were taken in 1846.

Ellen Guinan was the niece of William V. O'Brien, and resided with him from the time that she was nine years old until he died, being about twenty years. O'Brien was pastor of the church for thirty years, viz., from 1784 to 1814, when he died. She had been accustomed to see him write several times a day, and testified that the whole of the above certificate was in his handwriting. She also deposed as follows:

13. Question. Do you know the persons named in the body of this exhibit, Joannes O'Connel, Carolus Bernardi, and Victoria Bernardi?

Answer. I have heard of them, and think they are dead, but never knew or saw them that I know of.

14. Question. Did you know Jacobum Desgrange and Barbara M. Orci, named in the body of the exhibit?

Answer. I did not—never have known them.

15. Question. Do you know whether the books or records of St. Peter's church were at any time destroyed?

Answer. I heard they were.

16. Question. When did you hear they were, and on what occasion?

Answer. A gentleman from Ireland, Mr. Cruise, who married the sister of Sir John Johnston, of Johnstown, and Warrenstown, in Ireland, came to inquire about the marriage of one of his family, whom he had understood was married by my uncle. I told him to go to the church, as we had given up uncle's books after his death to Bishop Connelly, catholic bishop of this city. He came back and told us that he had found that the books had been destroyed by fire.

17. Question. About how long ago was it that you thus heard that the books were destroyed?

Answer. To the best of my recollection, about thirteen or fourteen years ago.

18. Question. What did you hear of Joannes O'Connell, Carolus Bernardi, and Victoria Bernardi, named in the exhibit shown you, and mentioned in a previous question?

Answer. I heard from my aunt, Louisa Jane O'Brien, that they were all attached to the Spanish ambassador's suite. I think O'Connell was his chaplain.

John Power, the vicar-general of the diocese of New York, and pastor of St. Peter's church, deposed as follows:

2. Question. How long have you been pastor of St. Peter's church?

Answer. I have been officiating as clergyman in that church

twenty-six years, (taken in 1846) and pastor of it about twenty years.

3. Question. Have records been kept in said St. Peter's church of the marriages solemnized by the clergymen officiating there?

Answer. There have been, with more or less regularity; there have been frequent omissions arising either from neglect or accident.

4. Question. Is there any written record now existing of the marriages solemnized by the clergymen of the said church previous to the year 1800?

Answer. I don't know that such a record exists; I have heard that it was missing, but have made no particular personal search for it; I don't know that I ever saw it.

5. Question. Have you known, personally or by reputation, William V. O'Brien, now deceased?

Answer. I have no personal knowledge of him; he was dead when I came to this country, but his memory was then fresh in the minds of people, and he was held in high repute.

6. Question. What was his profession, and what place or office did he hold here?

Answer. He was pastor of St. Peter's church.

7. Question. How long had he been pastor of St. Peter's church?

Answer. Many years; I cannot say the precise time.

8. Question. Do there appear to be any records in said church kept by him of the baptisms which he solemnized whilst pastor of said church?

Answer. There do.

9. Question. Have they been universally and at all times received as genuine and authentic?

Answer. They have been always received as genuine and authentic, and I have no doubt that they are so.

10. Question. Have you any knowledge of the handwriting of said William V. O'Brien; and if so whence have you derived it?

Answer. I have a knowledge of his handwriting, which I derived from the register of baptisms in St. Peter's church, which have always been...