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Gaines v. New Orleans U.S. 642 (1868)

handle is hein.slavery/ussccases0398 and id is 1 raw text is: GAINES V. NEW ORLEANS. [Sup. Ct. Syllabus. GAINES V. NEW ORLEANS. 1. By the law of Louisiana, if a man bond fide believe a woman free to marry him on account of the invalidity of a former marriage; and with such a belief of this, does marry her, such marriage has its civil effects; and the child born of it is legitimate, and can inherit its fa- ther's estate. 2.' The'fact of marriage being proved, the presumptions of law are all in favor of good faith. The court finds as a fact that there was a marriage in good faith .between the late Daniel Clark, of New Orleans, and Marie Julie (Zulime) Carri- ere, of the same place, some time before the birth of the present Myra Clark Gaines. The said Myra can, therefore, take the estate of Clark left to his said daughter by an olographic vill made in 1813; the same having been the last will made by him; and having been duly admitted as such to probate by the courts of Louisiana having competent jurisdiction. 3. The probate of a will duly received to probate by a State court of compe- tent jurisdiction, is conclusive of the validity and contents of the will in this court. 4 A will made a short time before a testator's death acknowledging a child as his legitimate and only daughter, is to be regarded, on a question of legitimacy, as an affirmative evidence of great weight; and in the na. ture of a dying testimony of the testator to the fact. 5. The probate of a will of later date necessarily and by the mere fact of its probate annuls a prior will, so far as the provis.ons of the two are incon- sistent, and so far as the estate was not legally administered under the earlier will. Accordingly, Clark's will of 1811 was annulled by his will of 1813. 6. The power of executors in Louisiana to make sale of real estate there, terminated by the code in force in 1813, in that State, at the end of a year from their appointment, unless there was an order of court to sell. A sale made after the expiration of the year, in a case where no order of court was shown, and where the will itself gave no power of sale, was a nullity. Accordingly, sales made in 1819-20-21, &c., by Relf & Chew, as execu- tors of Clark's will of 1811, proved in that year, passed no title. 7. The deed of a sole instituted heir gives no title by the law of Louisiana as against the real and paramount heir. Accordingly, deeds of Mrs. Mary Clark, mother of Daniel Clark, did not pass his property as against Mrs. Gaines, his only legitimate daughter. 8. On suit brought by such real and paramount heir claiming under a will of one date to recover possession, it is no defence by a party in pos- session under sales made by the exegutors or alleged instituted heir rnder an earlier and now annulled will, that the estate of the testator

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