Supreme Court of United States.
*574 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.
*582 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 jurisdiction 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 *583 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 légitime in his estate at the time of his death.
*584 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 of the law, in either of the States, particular persons have an interest in the property of an ancestor, whatever might be the evidence in favor of the authenticity and genuineness of the will, if the heirs at law object to its being done, the court will not establish the will, without the opinion of a jury upon a devisavit vel non."
We have recurred to what has been hitherto decided in this cause concerning jurisdiction, to prevent hereafter, in the further progress of it against any of the defendants, any doubt about it; and that the principles upon which this court has asserted it might be better understood than they seem to have been at the bar. The Circuit Court, in rendering its decree, understood it perfectly. We have been particular, too, in repeating what was decided by this court in 2 Howard, 619, because it comprehends the subject-matter upon which the jurisdiction *585 of the court was affirmed, and covered all who were parties, with the exceptions mentioned, and their obligations to answer, either jointly or separately, the bill as they pleased; though the whole of them, or any lesser number, might have a common defence. The object being that a final decree might be made between the complainants and each defendant, provided the interest or property upon which the decree is to attach was a part of the property of Daniel Clark and now separate in each defendant who might answer separately, or in any two or more of them who might do so jointly. Or if the defendants, as they had a right to do, except such of them as have already chosen not to answer conjointly, and have answered separately, should make a common answer, that the decree between the parties might be common to all, and attach upon the property of Daniel Clark in their hands, if the complainants make out the right of Mrs. Gaines, as forced heir of Daniel Clark. This disposes of the question of jurisdiction, and of the suggestion made in the course of the argument of the cause here, though not strongly insisted upon, that the jurisdiction or practice of the court did not permit a separate decree against Mr. Patterson, or any other defendant in the cause. If the decree against any of the defendants determines the character of the subject-matter or property for which he is sued, making it a part of what shall be the aggregate from which the complainants' interest is to be calculated, it is a final decree, and perfect against the defendant, though it may require the confirmation of a further order of the court before it can be acted upon; as in cases of foreclosure, or where a fund may be distributable among a particular class of individuals, or where, in the distribution of an estate, it becomes necessary to direct a master to report upon its kind or value, &c., &c., of which there is a full illustration in the decree given by this court in the case of Michoud v. Girod, 3 Howard, 543.
The cause is now before this court upon the appeal of Mr. Patterson.
The argument of the learned counsel, Messrs. Brent and May, in favor of the reversal of the decree may be condensed as follows:
1. There is no circumstantial evidence in favor of the marriage between the mother of Mrs. Gaines and Daniel Clark.
2. The testimony of Madame Despau, who declares that she was present at the marriage, is not entitled to belief on many accounts.
3. Mr. Clark's acknowledgments that Myra, Mrs. Gaines, was his legitimate child, even if admissible, are contradictory, if De la Croix has spoken the truth, as he spoke differently *586 of her to that witness. And they are intrinsically overruled by his most solemn acts, in stealthily providing for her by blind trusts, and more especially by the will of 1811.
4. Conceding, exempli gratia, that there was a factum of the alleged marriage, still there is proof of the marriage of the mother of Mrs. Gaines with De Grange, and no legal or satisfactory proof of the nullity of that marriage; because De Grange's confessions that he had a wife alive at the time he married the mother of Mrs. Gaines are not evidence, particularly not so in this case, as the appellant does not claim the property for which he is sued under De Grange. The argument of counsel upon the point of a previous and subsisting marriage was this: There is direct proof of a marriage between Zuline Carriere, the mother of Mrs. Gaines, and De Grange. To annul it, there is no other testimony than the hearsay of De Grange's confessions, and Gardette's declarations, that, when De Grange married Zuline, he was then a married man, that it was a common rumor in New Orleans, that such was the fact, that a woman calling herself Mrs. De Grange, and claiming to be the wife of De Grange, came to New Orleans in pursuit of him, as her husband. It is said, if she did, her assertions were equally hearsay. Reputation in New Orleans that the marriage with Zuline was null would be no evidence of the fact. Further, it is said the attempt to prove De Grange's conviction for bigamy is a failure. But even if the record of his conviction had been produced, which was not done, it is res inter alios acta, and could not be admitted against the appellant, who does not claim under De Grange, but under conveyances from the executors to the will of 1811.
The counsel also contend, whether they are right or wrong in the foregoing positions is a matter of no consequence, except as showing the history of the case, and tending to prevent further litigation, because, by the code of Louisiana of 1808, reënacted in this particular in the code of 1825, it is declared that a person holding property by sale from a donee of an excessive donation is only liable to the forced heir, after an execution first had against the property of the donee. Under both codes, too, the third possessors are only liable in the order of their purchases. That the légitime of the forced heir is not to be recovered in the specific property, but in the value of the légitime, as it may be ascertained under the Louisiana codes. For these last positions, counsel rely upon the language of the codes, and upon the case of Hodder v. Shepherd et al., 1 Louis. R. 505. That was a case which arose under the code of 1808, but is cited in the new code as a *587 judicial exposition of both the old and new code, in this respect. It is said that this case is within the provisions of the code under the decision just cited, as Mary Clark, the mother of Daniel Clark and grandmother of Mrs. Gaines, as universal legatee of her son by the will of 1811, accepted the succession of his estate as the law of Louisiana required it to be done. That her power of attorney to the executors, Chew and Relf, authorized them to make sales of the property of Daniel Clark as they were made, and gave to the purchasers valid titles, without any order of the Probate Court, or any judicial sale, being necessary. That the purchasers are not liable to be sued at all, until the forced heir exhausts the property, or, in other words, discusses the rights or property of the grandmother in her son's estate.
The statute of limitations, it was also said, barred a recovery by the complainants.
We have stated more particularly than we would otherwise have done the arguments urged by the counsel of the appellant, and in the strongest way in which they were presented. It was due to the importance of the case, to the interest of all concerned in this controversy, and because the arguments of both of the counsel command our respect. Parts of some of these objections have our acquiescence, others have not.
Our conclusions relating to the marriage of the mother of Mrs. Gaines to her father, the lawfulness of the marriage, and that she is the legitimate offspring of that marriage, differ from all that has been urged against them.
The marriage, the legitimacy of Mrs. Gaines, and the validity of the sales made by the executors, make the substance of this case put in issue by the pleadings. Were those pleadings different from what they are, there would be enough to prove the marriage and the legitimacy of Mrs. Gaines. But as the pleadings are, we cannot, upon the evidence, exclude such conclusions.
The marriage must be proved, according to what would be proof of it where it took place. This marriage took place in Pennsylvania, at Philadelphia, in the presence of a witness who says she was present, and that the ceremony was performed by a Catholic priest. "Marriage is a civil contract in Pennsylvania, to be completed by any words in the present tense, without regard to form." Hantz v. Sealy, 6 Binney, 405. "Marriage is to be decided by the laws of the place where celebrated." Phillips v. Gregg, 10 Watts, 168. Every intendment is to be made in favor of legitimacy. Senser v. Bower, 1 Penn. R. 453.
The bill asserts the marriage, its lawfulness, and that Mrs. *588 Gaines is the issue of the marriage; the answer is a denial of these allegations. The plaintiffs file a general replication. But as the appellant accepted the waiver offered in the bill, that their answers might be put in without being sworn to, and did not swear to his answer, he is not entitled to have the benefit of his answer as a denial of the plaintiff's case, unless the denial is contradicted by the evidence of two witnesses, or by one and corroborating circumstances.
In the case of the Union Bank v. Geary, 5 Peters, 99, this court said, "Indeed, we are inclined to adopt it as a general rule, that an answer not under oath is to be considered merely as a denial of the allegations of the bill, analogous to the general issue at law, so as to put the complainant to the proof of such allegations." In Bartlett v. Gale, 4 Paige, Ch. R. 503, the Chancellor says, "But where an answer on oath is waived, although, as a pleading, the complainant may avail himself of admissions and allegations in the answer which go to establish the case made by the bill, such answer is not evidence in favor of the defendant for any purpose." An answer is always under oath, unless the plaintiff chooses to dispense with it, and then the court will order the answer of the defendant to be taken without oath. But whether the answer is not sworn to by the order of the court when the plaintiff waives it, or the waiver has been voluntarily accepted by the defendant, it is not evidence in his favor for any purpose. As this court said in 5 Peters, just cited, it is analogous to the general issue at law, and a single undiscredited witness will be sufficient to prove the allegations in the bill which the answer denies. There is such a witness in this case. We do not intend, however, to put the conclusion to which we have come respecting the marriage solely upon her testimony. It is so strongly corroborated by other proofs, that the answer would be disproved if it had been sworn to.
Madame Despau says, "Daniel Clark was married in Philadelphia, in 1803, by a Catholic priest. I was present at the marriage. One child was born of this marriage, to wit, Myra Clark (now Mrs. Gaines), 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 witness then proceeds to relate what she terms the circumstances of the marriage, including the previous marriage of Zuline Carriere with De Grange, his subsisting marriage when he married Zuline, and the result of it, when that fact had been discovered *589 by Zuline and her family. This witness is not discredited in any of the ways or for any of the causes which can allowably be used for such a purpose. She is not contradicted by any witness.
Marriage may be proved by any person who was present, and can identify the parties. St. Devereux v. M. Dew Church, Burr, S.C. 506; 2 W. Black. 145.
If the marriage were in a foreign country, proof that it was solemnized in the manner usual in that country will be good presumptive proof that it was a valid marriage. Lacon v. Higgins, 3 Stark. 178.
Marriage by a person habited as a priest and being per verba de presenti, the person performing the ceremony must be presumed to have been a clergyman. Rex v. Brampton, 10 East, 282.
In what way is the attempt made to lessen the force of her testimony? In no other than by negative declarations of other persons who knew Clark, that they do not believe he was ever married, and by the witness De la Croix, who says, and he is the only witness who says so, that Clark spoke to him of Myra as his natural child. A hundred such witnesses would not be sufficient to impeach the testimony of one witness swearing positively to the fact of the marriage. And allowing that Clark did so speak to De la Croix, a husband's declarations of the illegitimacy of a child when the marriage has been so proved is not sufficient to rebut the presumption of its having been lawfully begotten, until the presumption is disproved by evidence showing the want of access between the husband and wife. Bury v. Phillpot, 2 M. & K. 349.
Once the marriage is proved, nothing shall be allowed to impugn the legitimacy of the issue short of the proof of facts showing it to be impossible that the husband could be the father. See opinion of the judges in Banbury Peerage case by Le Marchant. Access is presumed, unless the contrary be plainly proved.
But all the other witnesses, some of whom were more in Clark's confidence than De la Croix was, say that he spoke to them of Myra as his legitimate child, calling her such.
Pierre Baron Bois Fontaine declares, that Clark treated him as a confidential friend in matters relating to Myra and to his affairs generally; that he was with Clark when he died. He says Clark repeatedly spoke to him of Myra as his legitimate child. Nearly his last words were about her. And further he spoke of her mother with great respect, and frequently told him, after her marriage with Gardette, that he would have made his *590 marriage with her public if that barrier had not been made; but that she was blameless.
Mrs. Harriet Smith says, "Mr. Clark and my late husband, Mr. Harper, were intimate friends, &c. I suckled in her infancy Mr. Clark's daughter Myra. I did it voluntarily, in consequence of her having suffered from the hired nurses. Mr. Clark considered that this constituted a powerful claim on his gratitude and friendship, and he afterwards gave me his confidence respecting her." The interesting and truthful narrative of this witness of the relations between the father and the child, from her birth to the time of his death, and his frequent declarations that he would acknowledge her as his legitimate child, must make strong impressions upon any reader of it that she was such. Belle Chasse, the intimate and confidential friend of Clark for many years, and who proved himself, as the facts in the case show, worthy of that relation, says, "With much reflection and deliberation, Clark spoke of his being occupied in preparing his last will. On these occasions, in the most impressive and emphatic manner, he spoke of Myra as the object of his last will, and that he should in it declare her to be his legitimate child and heiress of all his estate."
Madame Caillaret, the sister of Zuline, says she was not present at the marriage of her sister with Mr. Clark, "but I do know that Clark made proposals of marriage with my sister. 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 until the record proof of De Grange's previous marriage could be obtained, and Zuline, with her sister, Madame Despau, sailed for the North of the United States, to obtain the record proof." Thus confirming what Madame Despau likewise says of Clark's proposals of marriage: "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. Mr. Clark arrived after us. We heard that 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 had been present at the 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 any longer to refuse being *591 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.' Clark and Zuline were then married." Madame Despau then relates their return to New Orleans, the prosecution of De Grange for bigamy, his imprisonment, escape, and flight from the country, without his having ever returned to Louisiana again. "All 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 for her to bring an action against the name of De Grange. The anticipated change of government caused 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 of New Orleans."
Now, rejecting all that Gardette is said to have said, all that Madame Despau says of the prosecution of De Grange for bigamy, and of the appearance of a female in New Orleans claiming De Grange for her husband, as not being within the allowable limits of hearsay testimony in a question of pedigree, the concurring testimony of two witnesses in the family as to Mr. Clark's proposals of marriage is such a corroboration of the declaration of one of them, that the marriage took place in her presence, as to make a basis broad enough to receive the declarations of the father, and his affectionate treatment of his child from her birth to his death, as conclusive of his marriage with her mother, and of her legitimacy. Such declarations, where there are probable grounds of a marriage, are the best proof in a question of pedigree. Just such though they are within what is termed hearsay as experience has shown to be necessary, in cases of doubt, to establish conjugal relations and the legitimacy of children. Such declarations, unlike those which De la Croix says Mr. Clark made to him, have always been received to establish the legitimacy of a child, with or without proof of marriage; and when there is in a case the positive testimony of one witness to a marriage, they are conclusive proof of legitimacy.
What is urged against such a conclusion in this case?
The conduct of the parties in not promulgating their marriage, and not occupying the same house upon their return to New Orleans. In connection with that conduct, the testimony of De la Croix, that Colonel and Mrs. Davis, who reared Mrs. Gaines at the request of her father, knew nothing of his marriage; that the witnesses, Mr. Coxe and Mr. Hulings, who were for a long time the intimates of Mr. Clark, the former his partner in business, swear, to the best of their belief, *592 that he never married. And the subsequent connection with Gardette, without a dissolution of the marriage with Mr. Clark.
The first is a good objection, until it has been reasonably accounted for. We do not mean so accounted for as to make it proper, but enough so to separate such conduct from the suspicion of an illicit connection.
Madame Despau declares, when the marriage was contracted in Philadelphia, and afterwards upon their arrival in New Orleans, that Clark said the marriage could not be disclosed on account of Zuline's previous marriage with De Grange; that legal proof must be obtained of the previous marriage of De Grange, and that an action would have to be brought by Zuline "against his name." This is substantially confirmed by Madame Caillaret, in her statement of the proposals for a marriage by Mr. Clark, and it having been deferred for the reason given by Madame Despau for its concealment. It is confirmed by what other witnesses say, as well as Madame Despau, of the arrest and imprisonment of De Grange for bigamy, to which they all swear as within their own knowledge, and by the subsequent proceedings in the City Court against De Grange. (Record, 206.) Connect the preceding with the mode of proceeding in Louisiana to impeach a marriage with one unable to contract marriage, its existing application to De Grange, and what might then have been its application to Mrs. Clark if her marriage in Philadelphia had been disclosed before a sentence of the nullity of her marriage with De Grange had been obtained, and we shall have facts from which motives for concealment of it may be inferred diverse from and stronger than the usual suspicion of its having been caused by an illicit intercourse. It was not necessary to the validity of the marriage in Philadelphia, that a sentence of dissolution should have been first pronounced in Louisiana against De Grange. By the law of the latter, as well as by the law of Pennsylvania, the marriage with De Grange was void from the beginning. A void marriage imposes no legal restraint upon the party imposed upon from contracting another, though prudence and delicacy do, until the fact is so generally known as not to be a matter of doubt, or until it has been impeached in a judicial proceeding, wherever that may be done. Mr. Clark probably knew what we have just stated concerning the validity of his marriage; but from his pride and temper, as his character has been disclosed in this record, was it not probable, not to say natural, that such a man, anticipating his return to Louisiana, would resort to the course which was pursued, to keep his feelings from being wounded, until a judicial sentence had restored *593 his wife to the unequivocal condition enjoyed by her before the imposition of De Grange? We speak of the fact, and not of its propriety. The latter has not our approbation, but we recognize what all of us know to be true, that concealment is as frequently the refuge of error as it is of crime, and that men of the world shun more than any thing else the exposure of their follies, more especially such as the world may think to be so, and bearing upon the honor of the most delicate relation which a man can form in life. It is not a fiction, that men have been situated as Mr. Clark was, who have died without disclosing, as he did, even in behalf of their unoffending children, such a relation, and that women have been found to bear it. Such reflections would have no weight with us, unconnected with the proof that there is in this case of the marriage. But we think, with such proof, that they are appropriate to repel any presumption of illegitimacy in this instance, arising from the concealment of the marriage, or from the parties to it not having occupied the same house. The events which followed embittered the rest of this father's life, and, until now, have deprived his child of that legitimate standing which he was most anxious to give her, and which seems to have pressed most heavily upon him at the hour of his death. Bois Fontaine says, in reply to the third cross-interrogatory, "He spoke of her mother with great respect, and frequently told me, after her marriage with Gardette, that he would have made his marriage with her public if that barrier had not been made, and frequently lamented to me that it 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, he showed great sensibility as to her being declared legitimate in it. While I was with him in 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. Nearly his last words were about her," &c.
Time with him was near its end, and the truth was told.
De la Croix's testimony, in the particular in which it is relied upon, differs from that of all the other witnesses, who have deposed to what Mr. Clark said to them, repeatedly, of the legitimacy of his child.
We regard it the less, for notwithstanding his intimacy with Mr. Clark, and the confidence which he had in De la Croix's suitableness to be the guardian of Myra, he says Mr. Clark never spoke to him about her, except on the occasion when he was asked to become his executor and her tutor. Record, 233, 234. This declaration to De la Croix, supposing it to *594 have been made in connection with the occasion when he says it was made by Mr. Clark, is the testimony in the record most relied upon to disprove the legitimacy of Mrs. Gaines. But it cannot be allowed to exceed in weight the testimony of several other witnesses who were more intimate with Mr. Clark than De la Croix was, who from facts in the cause independently of any declarations of theirs seem to have had more of his confidence, and to whom Mr. Clark spoke very differently of the same fact. A single declaration, directly the reverse of many to the same fact, may be made in such a manner, by the same person, as to disable us from coming to a conclusion coincident with that which the many assert. But if the latter are associated with other proofs bearing upon the point derived from other persons, stronger than any proofs which can be connected with the contradiction of them, we have a rule to guide us in our estimate of both, making the many prevail over the one, though it might, independently of all other proof connected with either, bring us to an opposite conclusion. The testimony of De la Croix cannot stand the test of this rule. Setting aside all that the other witnesses say contrary to it, there is the oath of one witness who swears to the marriage, which raises an intendment of legitimacy in the offspring conclusive until it has been disproved. Against such a rule, suspicions or doubts not resting upon proofs as strong as the proofs of the marriage must not be indulged. But for a brief illustration of the rule, let us take the case. De la Croix says Mr. Clark told him, upon the only occasion he ever spoke to him of Myra, that she was his natural child. Madame Despau says she was present at the marriage of Mr. Clark to the mother of Myra. Bois Fontaine says Mr. Clark said to him, speaking of the mother of Mrs. Gaines, that he would have made his marriage with her public, but for her subsequent connection with Gardette. Now where is the weight of proof? Does De la Croix's testimony exceed that of the witness who swears to the marriage, and also Clark's declaration to Bois Fontaine admitting it? The contrary declarations may neutralize each other, in this aspect of the case, without lessening the positive.
In such a case, we have not a choice of conclusions, but must take that which the positive proves.
Hitherto, the testimony of De la Croix has been treated as if it was altogether unexceptionable. It is not so. There is in it that cold hardness of a man of the world, unmindful of the relations of former friendship whilst professing to regard them, but little in unison with kindness, and not at all so with the seriousness of exact truth. Such men will not swear to *595 what is false, but they may speak what is not true, by an indifference to exactness in what they do say. De la Croix's testimony is twice in the record, taken at different times, and we have it both in French and English. No injustice is done him by translation. They are not so contradictory of each other as to justify of themselves any charge against his intentional veracity; but they differ in particulars about Myra, as well as of other persons, so as to make it right that it should, as a whole, be received with great caution. Besides, for there must be no disguise of the facts which bring us to our conclusion concerning his testimony, there is upon the record a pecuniary relation between himself and the estate of Daniel Clark, which, unexplained, does not leave a favorable impression of his impartiality in this affair.
Again, suppose the fact of legitimacy in this case had been placed altogether upon the evidence of Belle Chasse and De la Croix, that of the former would not have been proof of it. But if Belle Chasse's testimony is fortified by that of others, speaking as strongly as he does of Clark's declarations of his daughter's legitimacy, it would not be reasonable to discard it for the testimony of De la Croix, which is unsupported by any other witness. Is the conclusion one less of proof, because Colonel and Mrs. Davis, who reared the child at the request of her father, were ignorant of his marriage? because Mr. Coxe and Mr. Hulings, who knew him well, say that they knew nothing of Mr. Clark's marriage, the two last declaring so to the best of their belief? All of this is negative testimony, implying ignorance of the fact of which they speak, and not knowledge of it, a fact susceptible of positive proof, or of proof by facts from which marriage may be inferred. The rest of the testimony of Mr. Coxe, Mr. Hulings, and De la Croix, in respect to the marriage, is excluded from our consideration, from not being within the rules by which hearsay is admissible in cases of pedigree. Neither of them relate any thing as coming from the parents of Myra, or the relations on either side of the marriage. The only point in which the testimony of Mr. Coxe differs from that of Madame Despau is in his narrative of the arrangement made by him, at the request of Mr. Clark, for the birth of Caroline, now Mrs. Barnes. Madame Despau says she was the child of De Grange; Mr. Coxe, that Clark told him that she was his child. These declarations are at variance with each other as to the fact, but not contradictory. The fact may be as one or the other witness has related it. The difference, therefore, does not at all discredit Madame Despau. But the ignorance of Colonel and Mrs. Davis of the marriage, in connection with the arrangements *596 which were made by them, at the request of its father, for the birth of the child, and the father's great confidence in them, it is said, is extraordinary and unaccountable. But is it not equally so, that, under such circumstances, he should not have communicated to them the reverse? The latter is ordinarily the usual confidence between the parties upon such occasions, and when it is not made, an inquiry suggests itself at once why it was not done. Its not having been done, though extraordinary, proves nothing either one way or the other; the mind is left to connect other facts with it, for the purpose of enabling us to conclude what inference can justly be made from such an incident, so much out of the way of the confidence between parties upon such occasions. There are no such facts in this case to aid such an objection. There are facts independent of it, which happened afterwards, which repel it.
The witnesses speak of the extraordinary affection manifested by Mr. Clark for this child, his daily visits, parental and endearing fondness, his costly presents and manifested pride in her, as time developed her mind and appearance, and that he always called her Myra Clark. All of this is not inconsistent with what men of generous temper will and should do to repair as much as they can, in such cases, their indiscretion as to the birth of a child. But when a parent does it, with subsequent declarations, made over and over again, to several persons, of a child's legitimacy, they may well be united with the latter to remove the objection, that Mr. Clark had not mentioned his marriage to Colonel and Mrs. Davis. Besides, let it be remembered that the evidence shows, up to that time, he had mentioned his marriage to no one. Madame Despau, his wife, and himself only knew the secret, and his influence over them made it his own, until they could speak free from the apprehensions excited in them by his declaration, that the marriage was not to be disclosed until the marriage with De Grange had been judicially annulled. He was a man of no ordinary character or influence upon those who were about him. His natural fitness to control became habitual, as his wealth and standing increased, and it was exercised and involuntarily yielded to by all who associated or who were in business with him. He was a man of high qualities, but of no rigor of virtue or self-control; energetic, enterprising, courageous, affectionate, and generous, but with a pride which had yielded to no mortification until his affection subdued it to a sense of justice in behalf of his child. As to Mrs. Clark's subsequent connection with Gardette whilst she was the wife of Mr. Clark, considering it alone or with those reasons which *597 have been urged against the fact of that marriage, our conclusion is, that, inexcusable as her conduct was, there is not enough to make the fact of the marriage with Mr. Clark doubtful. Discarding from our consideration altogether the irritation and impositions to which this female had been subjected from her girlhood, and her well-founded fears of the fidelity of Mr. Clark, and admitting she was very deficient in her apprehension of the sacredness of marriage, however much it may expose her virtue and her affection for her lawful husband to conclusions against both, we do not deem it to be a fact strong enough to set aside the testimony of one witness who swears positively to her marriage with Mr. Clark, and all the corroborating proof of that fact in the case. It will raise a suspicion against the marriage, in this most curious and original chapter of domestic life, not easily removed from the minds of those who indulge it. But we cannot permit it to prevail over the legitimacy of her child, established, as we think ourselves obliged to say it has been, in conformity with those rules of evidence which long experience and the wisdom of those who have gone before us in courts of equity have deemed the best to ascertain, in cases of doubt, the affinity and blood-relationship of social life.
But it is still said, admitting the marriage with Clark to have taken place in Philadelphia, that Mrs. Gaines cannot inherit from her father, his marriage with her mother being void, on account of her previous marriage with De Grange.
This will depend upon the marriage with De Grange having been a valid marriage. Or upon its being void for one of those causes which disable persons from contracting marriage. The burden of proof in such a case is not upon the party asserting the validity of the second marriage, but on the other, who asserts its invalidity on account of the validity of the first. Both are affirmative declarations. Ei incumbit probatio qui dicit, non qui negat. The argument is, the marriage with De Grange stands in the way of any right of Mrs. Gaines to inherit from her father, until the record of the conviction of De Grange for bigamy has been produced. We do not understand the law to be so. A bigamist may be proved so, in a civil suit, by any of those facts from which marriage may be inferred. Reputation of marriage is not enough, but facts from which it may be inferred are so. In a prosecution for the offence, there must be proof of an actual marriage. The confession of the bigamist will be sufficient in a civil suit, when made under circumstances which imply no objection to it as a confession. De Grange did make such a confession. Madame Benguerel says, in answer to the seventh interrogatory put to her, "My *598 husband and myself were very intimate with De Grange, and when we reproached him for his baseness in imposing upon Zuline, he endeavoured to excuse himself by saying, that, at the time of his marrying her, he had abandoned his lawful wife, and never intended to see her again." Record, 212. And her answer to the cross-interrogatory is, "I am not related to nor connected with the defendants, nor with either of them, nor with the mother of the said Myra, nor am I interested at all in this suit. It was in New Orleans where I obtained my information. It will be seen by my answers how I knew the facts. I was well acquainted with De Grange and the said Zuline and I knew the lawful wife of the said De Grange, whom he had married previous to his imposing himself in marriage upon Zuline." The credit of this witness is unassailed. Here, then, is proof enough of a subsisting marriage between De Grange and another female, when he married Mrs. Gaines's mother, to invalidate the latter.
But suppose Madame Benguerel had not given such testimony, or that her credit had been successfully assailed; what would then be the state of the objection? Just this: as all the other witnesses who speak of the prosecution of De Grange for bigamy speak of his conviction only as hearsay or common report, the defendant cannot call upon the plaintiff for record proof of it, without placing himself in the inconsistent attitude of rejecting the hearsay to be proof of its existence, but giving to him the right to call for its production. The testimony of Madame Benguerel was introduced by the plaintiffs without any obligation upon them to have done so. It establishes the fact of De Grange's previous marriage, for all the purposes of this controversy. The denial, in the answer of the defendant, that Mr. Clark was ever married, is the assertion of a fact, of which the defendant cannot, in the nature of things, have positive knowledge, and is therefore no more than a declaration of his belief. One witness, therefore, overrules the denial. But there is no force in this objection for another reason. When, in the progress of a suit in equity, a question of pedigree arises, and there is proof enough, in the opinion of the court, to establish the marriage of the ancestor, the presumption of law is, that a child of the marriage is legitimate, and it will be incumbent upon him who denies it to disprove it, though in doing so he may have to prove a negative.
Further upon this point, the record of De Grange's conviction cannot be called for, as there is proof that it could not be found in the proper office in New Orleans, where it should be. The complainants do not rely upon such proof to establish the fact that De Grange was a married man when he married Zuline. *599 His declaration to Madame Benguerel, associated with other facts, sufficiently proves it.
Before leaving this point, however, we will make a single remark upon what was said in the argument, that, if the record of De Grange's conviction had been produced, it would not have been competent testimony, from its being res inter alios acta.
The general rule certainly is, that a person cannot be affected, much less concluded, by any evidence, decree, or judgment, to which he was not actually, or in consideration of law, privy. But the general rule has been departed from so far as that wherever reputation would be admissible evidence, there a verdict between strangers, in a former action, is evidence also; such as in cases of manorial rights, public rights of way, immemorial custom, disputed boundary, and pedigrees. Duchess of Kingston's case, 11 Howell, State Trials, 261; Davies, Demand., Lowndes, Tenant, 7 Scott, N.R. 141; Doe d. Bacon v. Brydges, 7 Scott, 333; Read v. Jackson, per Lawrence, J., 1 East, 355; Brisco v. Lomax, 8 Adol. & Ell. 198; Evans v. Rees, 10 Adol. & Ell. 151; Biddulph v. Ather, 2 Wel. 23; Tooker v. Duke of Beauford, 1 Burr. 146, as to manorial rights; Brisco v. Lomax, 8 Adol. & Ell. 198, as to disputed boundary; Laybourn v. Crisp, 4 Mees. & Wels. 320, as to questions of immemorial custom; Travers v. Challoner, Gwill, 1237, as to disputed modus and pedigree; Carr v. Heaton, Gwill, 1261. In Neal & Duke of Athol v. Wilding, Strange, 1157, the court rejected a special verdict in a former suit, the defendants not having been parties to that suit, which was offered to prove three of the descents which were necessary to make out the Duke's pedigree. Mr. Justice Wright differed from the majority of the judges on that occasion, and in Buller's N.P., 4th ed., p. 233, it is said that the opinion of that learned judge was generally approved, though the determination by the rest of the court was contrary. And the point has been since repeatedly ruled in conformity with the opinion of Mr. Justice Wright.
But it may be said that the real fact was not what our conclusion is upon this point. Let it be remembered by those who may say so, that possibilities are the enemies of truth, indicating more frequently than otherwise the unpreparedness of a mind to receive it, rather than its uncertainty. They have no standing in the law against a violent presumption, which is plena probatio, or full proof.
Having disposed of all the objections which were urged, or which can be raised upon this record, against the most interesting and essential fact in the case of the complainants, we *600 proceed to give our conclusions upon the legal points made for the reversal of the decree of the Circuit Court.
They were, that a suit at the instance of a forced heir cannot be maintained against a purchaser, until the donee's property has been discussed.
It was said the decree was not final.
That the statute of limitations barred a recovery.
And last, that the decree directs the property for which the defendant is sued to be conveyed and surrendered to Mrs. Gaines, instead of making it liable as a portion of Daniel Clark's estate, out of which the forced heir's légitime is to be calculated.
The first objection would prevail against the decree, if Mr. Patterson's was such a purchase. It is not so.
The defendant is the alienee of the purchasers who bought the property at auction, in the year 1820, from the executors of Mr. Clark under the will of 1811. It is admitted that the property was a part of Mr. Clark's estate when he died.
These sales were made without any authority, judicial or otherwise. They were made after the time when, by the law of Louisiana, the relation of the sellers as executors had expired. Nor can it be said they were legal on account of the power of attorney given to Mr. Relf and Mr. Chew by Mrs. Clark, the mother and universal legatee of the testator. She could give no power to the executors to dispense with the law prescribing the manner for making the sale of a succession. Her power of attorney was not of itself, nor was it treated by the executors, to make for her a legal acceptance of the succession. It was neither an express nor a tacit acceptance of the succession, casting upon her the responsibilities resulting to a donee of a succession by its acceptance. It might have been used as an act done by her from which her intention to accept the succession might have been inferred, which would have been a legal acceptance. But it was not so treated. Until the acceptance was made as the law required it to be, every act performed under it by the attorneys was void.
The power was also given when the possession of the estate was lawfully in the executor for the purpose of enabling them to discharge their functions according to law. It could not invest them with any power, either when their connection with the estate as executors existed, or afterwards, to sell any part of it in a way not permitted by the law.
One of the executors, Mr. Relf, received letters testamentary on the 27th August, 1813. The other, Mr. Chew, on the 21st January, 1814. Without delay, on the same day that he received letters, Mr. Relf applied for leave to sell the movable *601 and immovable property of his testator. It was granted. For reasons stated in a subsequent application, he applied for an extension of the order as to the time for making a sale. It was allowed, without any alteration of the times for advertising the property he wished to sell, as fixed in the first order. The movable effects were to be advertised ten days. The slaves and other immovable effects thirty days. The defendant depends upon these orders for the regularity of the sales and the validity of the purchase made by his alienor, Correjollas, the original purchaser. The sale of the property bought by Correjollas was made in 1820. The time for making the sales, according to the order of the court, had passed more than six years. The time within which the executors could act as such by the law of Louisiana had expired. They had neither legal nor delegated authority from the donee of the estate, recognized as such by the law of Louisiana, to make the sale. It was a sale without judicial order, a sale in disregard of, and in violation of, the law, one which the law of Louisiana makes absolutely void. If considered as having been made under the orders for sale given by the court, it is also absolutely void. It is necessary to show, in all cases of forced sales, meaning such as are done by judicial order, particularly of the property of a succession, or estate of a deceased person, that all the formalities of the law have been strictly complied with, or the sale will be annulled. Delogny v. Smith, 3 Louis. R. 421; Donaldson v. Hull, 7 N.S. 113; Marsfield v. Comeaux, 7 N.S. 185; 8 N.S. 246; 4 Louis. R. 204; 11 Martin, 610, 675; 2 Louis. R. 328.
Under these decisions, and the view which we have taken of this point of the case, the fact of notice by the purchasers, and by the defendant from them, of the illegal and fraudulent sale, cannot be denied. The defendant knew, from the titles which he received from the purchaser, Correjollas, and from that bought by him from the other alienee of Correjollas, that the sales had been made by Mr. Relf and Mr. Chew in a representative character, and it was his duty to inquire if they legally filled it. Not having done so, he has bought in his own wrong, and the title by which he claims the property must be annulled. We have confined our remarks strictly to the objection, that these sales were made by the donee, or universal heir of the will, without adducing other causes found in the proceedings of the executors, of which this record is but too fruitful, to show that the objection has no foundation in fact.
Of the statute of limitations we will only say, that the statute in force at the time the suit is brought determines the *602 right of the party to sue for a claim, and that the time under that in force when this suit was commenced had not expired. We ought, though, to say, to prevent future misapprehension, that it is not regularly in the pleading of this cause.
It is also said that the decree of the Circuit Court is not final, in the sense contemplated by the law, to give to this court appellate jurisdiction. Indeed, we do not see how a decree could be more so. Nothing is left open between the parties; it embraces the pleadings as well as the proofs in the cause, and directs the property held by the defendant, as it is set forth in the pleadings, to be conveyed and surrendered to Mrs. Gaines. And it is only because the decree is subject to the objection, that the légitime of Mrs. Gaines in her father's estate is to be calculated out of the whole of it, so as to ascertain and preserve distinct from the controversy the disposable quantum to which the donee is entitled under the will of 1811, that we shall direct it to be reversed.
Mrs. Gaines, as the forced heir of her father, is entitled to such a portion of his estate as he could not deprive her of, either by donations inter vivos or mortis causa. The will of 1811 is not null on account of its being a donation exceeding the quantum which the father could legally dispose of, but is only reducible to that quantum.
To determine the reduction to which the donation in the will of 1811 is liable, the 29th article of title 2d of donations inter vivos and mortis causa, ch. 3, sec. 2, of the code of 1808, gives the rule. The disposable quantum in this instance would be one fifth of the aggregate of the property of the decedent in Louisiana; the légitime four fifths. Code of 1808, 212, tit. 22.
We shall direct the decree of the court below to be reversed, and adjudge that a decree shall be made in the said court, in this suit, declaring that a lawful marriage was contracted in Philadelphia, Pennsylvania, between Daniel Clark and Zuline Carriere, and that Myra Clark, now Myra Gaines, is the lawful and only child of that marriage. That the said Myra is the forced heir of her father, and is entitled to four fifths of his estate, after the excessive donation in the will of 1811 is reduced to the disposable quantum which the father could legally give to others.
That the property described in the answer of the defendant, Mr. Patterson, is a part of the estate of Daniel Clark at the time of his death, that it was illegally sold by those who had no right or authority to make a sale of it, that the titles given by them to the purchaser and by the purchaser to the defendant, Mr. Patterson, including those given by the buyer *603 from the first purchaser to Mr. Patterson, are null and void, and that the same is liable, as a part of the estate of Daniel Clark, to the légitime of the forced heir, and that the defendant, Charles Patterson, shall surrender the same as shall be directed among other things to be done in the premises, as will appear in the decree and mandate of this court to the Circuit Court in Louisiana.
This appeal having been heard by this court, upon the transcript of the record from the Circuit Court of the United States for the Eastern District of Louisiana, and upon the arguments of counsel, as well for the appellant as for the appellees, this court, upon consideration of the premises, doth now here adjudge, order, and decree, that the decree of the said Circuit Court be and the same is hereby reversed, with costs, and that such other decree in the premises be passed as is hereinafter ordered and decreed.
And this court, thereupon proceeding to pass such decree in this cause as the said Circuit Court ought to have passed, doth now here adjudge, order, and decree, that it be adjudged and declared, and is hereby adjudged and declared, upon the evidence in this cause, that a lawful marriage was contracted and solemnized at Philadelphia, in the State of Pennsylvania, between the same Daniel Clark, in the bill and proceedings mentioned, and the same Zuline or Zuline Carriere, in the bill and proceedings mentioned; and that Myra Clark, now Myra Clark Gaines, and one of the complainants in this cause, is the lawful and only issue of the said marriage, and was at the death of her said father, Daniel Clark, his only legitimate child and heir at law, and as such was exclusively invested with the character of his forced heir, and entitled to all the rights of such forced heir.
And this court doth further adjudge, order, and decree, that all the property described and claimed by the defendant Paterson in his answer and supplemental answer, and in the exhibits thereto annexed, is part and parcel of the property composing the succession of said Daniel Clark: that the defendants Richard Relf and Beverly Chew, at the time and times when, under the pretended authority of the testamentary executors of the said Daniel Clark, and the attorneys in fact of the said Mary Clark in the will and proceedings mentioned, they caused the property so described and claimed by the defendant Patterson to be set up and sold at public auction, in December, 1820, and when they executed their act of sale, dated on the 18th February, 1821, to Gabriel Correjollas *604 for the two lots therein described, (which two lots constitute the same property described and claimed by the defendant Patterson as aforesaid,) had no legal right or authority whatever so to sell and dispose of the same, or in any manner to alienate the same: that the said sale at auction and the said act of sale to Correjollas in confirmation of the previous sale at auction, were wholly unauthorized and illegal, and are utterly null and void; and that the defendant Patterson, at the time and times when he purchased the property so described and claimed by him as aforesaid, (part from the said Correjollas, the vendee of the defendants Relf and Chew, and the residue from Etienne Meunier, the vendee of said Correjollas, himself the vendee of the same defendants,) was bound to take notice of the circumstances which rendered the actings and doings of the said defendants in the premises illegal, null, and void; and that he ought to be deemed and held, and hereby is deemed and held, to have purchased the property in question with full notice that the said sale at auction under the pretended authority of the said defendants and their said act of sale to Correjollas were illegal, null, and void, and in fraud of the rights of the person or persons entitled to the succession of the said Daniel Clark.
And the said court doth further adjudge, order, and decree, that all the property claimed and held by the defendant Patterson as aforesaid now remains, unaliened and undisposed of, as part and parcel of the succession of the said Daniel Clark, notwithstanding such sales at auction and act of sale in the pretended right or under the pretended authority of the defendants Relf and Chew.
And the court doth further adjudge, order, and decree, that the complainant, Myra Clark Gaines, is justly and lawfully entitled, as the only forced heir of said Daniel Clark, to her legitimate portion of four fifths of the said succession, and to have four fifths of the property so claimed and held by the defendant Patterson, as aforesaid, duly partitioned, apportioned, and delivered or paid over to her, together with four fifths of the yearly rents and profits accruing from the same, since the same came into the said defendant's possession; and for which the said defendant is hereby adjudged, ordered, and decreed to account to the said complainant.
And the court doth now here remand this cause to the said Circuit Court for such further proceeding as may be proper and necessary to carry into effect the following directions; that is to say,
1. To cause the said defendant Patterson forthwith to surrender all the property so claimed and held by him as aforesaid *605 into the hands of such curator, commissioner, or trustee as the said court may appoint for the purpose; whose duty it shall be, under the directions of the court, to manage the said property to the best advantage, till the whole matter and apportionment of the said two portions (being the said four fifths and one fifth) of the said property shall have been completed and finally liquidated, as a part of the succession of the said Daniel Clark, and in the mean time to collect and receive all the rents, issues, and profits of the same, and to account and bring the same into court, to be there apportioned and paid over, or in part retained for further directions.
2. To cause four fifths of the property so claimed and held by the defendant Patterson as aforesaid to be duly partitioned, appropriated, and delivered or paid over to the said complainant; and to retain the residue subject to further directions for the appropriation of the same; which either party shall be at liberty to move for; and if the same be proved and found indivisible by its nature, or cannot be conveniently divided, to cause it to be sold by public auction, after the time of notice and advertisements, and as near as may be in the manner prescribed by law in the judicial sale of the property of successions: and, in case of such sale by auction, to apportion and pay over four fifths of the net proceeds of such sale to the said complainant, and to retain the residue subject to further directions, as aforesaid.
3. To cause an account to be taken by the proper officer of the court, and under the authority and direction of the court, of the yearly rents and profits accrued and accruing from the said property since it came into the possession of the defendant Patterson; and four fifths of the same to be accounted and paid to the said complainant, and the residue to be retained subject to such further directions as aforesaid.
4. To give such directions and make such orders, from time to time, as may be proper and necessary for carrying into effect the foregoing directions, and for enforcing the due observance of the same by the parties and the officers of the court.
[*] Mr. Chief Justice Taney did not sit in this cause, a near family relative being interested in the event.
Mr. Justice McLean did not sit in this cause.
Mr. Justice Catron did not sit in this cause, by reason of indisposition.
