Fuentes and al. v. Myra Clark Gaines. notwithstanding the demurrer was technically correct, in order that said answers might be used in evidence on the probate of the will of 1813. The answers were sworn to. The complainant had full opportunity to question Relf upon the subject matter of the lost will, and the present suit is between the ayant cause of the defendants in the suit, in which said answers were made. But complete mutuality or identity of parties is not necessary. "It is generally deemed sufficient" says Greenleaf, "if the matters in issue were the same in both cases, and the party, against whom the deposition is offered, had full power to cross-examine the witness. Thus, where a bill was pending in chancery, in favor of one plaintiff against several defendants, upon which the court ordered an issue of devisavit vel non, in which the defendants in chancery should be plaintiffs and the plaintiffs in chancery defendant, and the issue was found for the plaintiffs--after which the plaintiff in chancery brought an ejectment on his own demise, claiming, as heir at law of the same testator, against one of those defendants alone, who claimed as devisee under the will formerly in controversy, it was held, that the testimony of one of the subscribing witnesses to the will, who was examined at the former trial, but had since died, might be proved by the defendant in the second action, notwithstanding the parties were not all the same; for the same matter was in controversy, in both cases, and the lessor of the plaintiff had precisely the same power of objecting to the competency of the witness, the same right of calling witnesses to discredit or contradict bis testimony, and the same right of cross-examination, in the one as The same rule applies to privies, as well as to in the other. parties." 1 Greenl. §§ 553, 554. The same author says: "And though the two trials were not between the same parties, yet, if the second trial is between those who represent the parties to the first, by privity in blood, in law, or in estate, the evidence is admissible. And if, in a dispute respecting lands, any fact comes directly in issue, the testimony given to that fact is admissible to prove the same point or fact in another action between the same parties or their privies, though the last suit be for other lands." I Greenl. § 164. 7 Rob. 440. Relf had died before the institution of this suit. If he had been living he would have been a competent witness in the case. But his sworn declarations in answer to charges propounded against him by the said Myra C. Gaines, are in existence in that suit. The Supreme Court said his answers might be used as evidence to probate the will of 1813; and the said Gaines has had full power and opportunity to question and cross-question him. It is difficult, therefore, to see any substantial reason, why the evidence can not be used, by those who have an interest to prove no such will existed at the death of Clark. Fuentes and al. v. Myra Clark Gaines. The great length of time that intervened between the death of Clark, nay, between the period when the defendant reached her majority, and the institution of the proceedings to probate the will of 1813, in 1834 and 1855; the fact that on those occasions she declined to contest the validity of the will with those who held property under the will of 1811, who were ready to try the issue with her; and the further fact that the plaintiff did not have an opportunity to show that the will' was invalid or not legally probated, until after their possessions were disturbed by the suits in the United States Circuit Court, instituted since the death of Relf, are circumstances which incline us to receive the evidence. The general rule, that the best evidence the nature of the case will admit of would seem to decide this question. "It is only another form of expression of the idea that if one loses the higher proof, he may use the next best in his power. The case admits of no better evidence than that which you possess, if the superior proof has been lost without your fault." 2 La. 168. Over forty years after the death of Clark, long after his contemporaries had passed off the stage of life, the plaintiffs are obliged to attack the will set up by defendant as the muuiment of her title to lands in their possession under titles derived from his succession. We are of opinion that the answers should have been received. Sixth-The plea of prescription was properly overruled. The prescription, upon which counsel in their briefs appear to rely, is that of one and five years, and they cite articles 1994 and 3542 Ray's C. C. and article 613 Code of Practice. This article of the code of practice clearly refers to a judgment in a contested suit, but which has been obtained through fraud, or because the defendant had lost the receipt given him by the plaintiff. Article 1994 of the Civil Code applies to acts made in fraud of creditors. Article 3542 refers to actions for the nullity of testaments, when the instituted heir is in possession of property under the will, and is sued by the heirs at law to annul the will, and take from the instituted heir the property. It does not apply to a case of this kind, in which a defendant in a suit in chancery is obliged to come to the Probate Court to establish a part of his defense in consequence of the limited jurisdiction of the Circuit Court or the United States. The maxim "Quæ temporalia sunt ad agendum, perpetua sunt ad excipiendum" is applicable to this case. If the petitory action, instituted in the Circuit Court, had been filed in one of the district courts of this State, no one would pretend that the defendants could not attack the will and ask for judgment annulling it. She can not deprive them of that right by suing in the Circuit Court. Their rights can be barred only by the laws of Louisiana, where they reside, and where their property in controversy is situated, which are obligatory on the Fed Fuentes and al. v. Myra Clark Gaines. eral as well as State courts; the Federal courts do not claim the right to bring foreign laws into this State. The only right which the plaintiffs in this suit have to attack this will is because they are disturbed in the possession of their property by the suits in charcery aforesaid. Until they were sued in the Federal court they had no cause of action. It was immaterial to them how many wills were probated, unless they were disturbed in the possession of their property, and prescription against them could not have run until their cause of action had arisen. Nor can prescription run against one in possession. There is no foundation for the plea of prescription; and we concur in the views of the judge a quo, when he says: "If the prescription of five years could run against one having and tracing undisturbed possession from 1815 down to the time his right is first attacked in 1865, say fifty years, then success is assured by law to a fraud easily and safely practiced. It would suffice, in any old and almost forgotten succession, to probate ex parte a spurious and invalid will; wait in masterly inaction during five years, and then sue the previously recognized heirs or their transferrees for the property derived from the estate. In vain would they appeal to the fact that the probate was ex parte; urge that the law did not give the probate the effect of a public judgment concluding themclaim the right reserved in their favor to contest it; in vain would they offer to prove forgery, bastardy, violation of public policy and morals and infraction of prohibitory law. The plea of prescription, if operating thus silently and insidiously against their quiet possession and title, in favor of one who makes no pretense of possession, would close the door to all investigation, and a demonstrable fraud against the real right, and against the law itself, would be infallibly triumphant. We do not recognize such to be the law or jurisprudence of Louisiana. Seventh-The last assignment of errors presents the questions involved on the merits of this cause; those we deem important are the following. Did Daniel Clark leave a testament dated on the thirteenth July, 1813? Are the contents of that will proved by two credible witnesses, who read, or had had read to them, the will? In proving a lost olographic will, with a view to its probate and execution, is it necessary to prove all the essentials of an olographic will? Or, is a paper, containing testamentary dispositions, wholly written and signed by the testator, but dated in July, 1813, without specifying any day, an olographic will? Is it dated? Can an olographic will be proved, except by those who have a knowledge of the handwriting of the testator, from having often seen him write, and sign his name? And must that knowledge and the source of that knowledge be stated by the witness? In deciding these questions we would have less difficulty if this court had not, in an ex parte proceeding, passed upon several of them. Fuentes and al. v. Myra Clark Gaines. But, inasmuch as the decision in that case is not binding on the plaintiffs in this suit, it is our duty to examine the questions and to decide them without being influenced, if possible, by what was decided in the eleventh Annual. Daniel Clark died in the city of New Orleans on the sixteenth day of August, 1813. The procès verbal of the magistrate who affixed the seals upon the effects declares: "This day, the sixteenth of the month of August, 1813, and the thirty-eighth of American indep. ndence, we, Gallien Preval, one of the justices of the peace for the city and parish of Orleans, were present at the decease of Daniel Clark, this day, at six o'clock in the afternoon, and we were requested by Richard Relf to affix the seals on all the papers belonging to the estate of the said Daniel Clark, for the accomplishment of which, we in the presence of James Pitot and Dussuau de la Croix, the said Richard Kelf, having been requested by us to show us the papers of said estate, and having conducted us to the room of said deceased, proceeded, in the presence of the witnesses above named, to remove all the said papers and to place them in a desk and armoir, which we found in the room of deceased, after which we affixed the seals on the doors of the room, and placed Mr. Francisco Morales as guardian of the said room, who promised, under oath, to fulfill well and faithfully the duties of his charge, and has, together with us and the witnesses named, signed the same on the day, month and year above mentioned. his "FRANCISCO MORALES. mark. "At the moment of the closing the procès verbal, the said Richard Relf having found in a trunk of the deceased the olographic will, we removed it in presence of the witnesses above named for the purpose of delivering it to the honorable judge of the Court of Probates. "(Signed) "JAMES PITOT. "DUSSUAU DE LA CROIX. "GALLIEN PREVAL, Thus it appears that James Pitot, the parish judge, de la Croix, Relf and Francisco Morales, and the justice of the peace, Gallien Preval, were present immediately after the death of Clark-nay at his death-and that the justice of the peace affixed the seals on the effects of the succession according to law. On the seventeenth day of August, 1813, the olographic will of Clark, dated twentieth of May, 1811, was probated by James Pitot, the parish judge. Fuentes and al. v. Myra Clark Gaines. On the eighteenth of August, 1813, Francis Dussuau de la Croix filed a petition in the Probate Court of the parish of Orleans, in which he represented that he had strong reasons to believe that Daniel Clark had made a testament or codicil posterior to that which had been opened and probated. "And whereas it is to be presumed that the double of the last will, whose existence was known by several persons, might have been deposited with any notary public of the city," he prayed to have the notaries summoned within twenty-four hours to certify under oath if there existed or not in their offices any testament, codicil, or sealed packet deposited by the said Cla k. The notaries were summoned and they certified that they had no will or codicil of the said Clark. It is not pretended that any body ever saw the alleged last will after the death of Clark. And Boisfontaine alone testifies that Clark spoke of the will in his last illness. Boisfontaine states that Clark spoke to him of his last will repeatedly during his last illness, and he said "his will must be taken care of on her (Myra's) account." Again, "he told Lubin, his confidential servant, to be sure, as soon as he died, to ca ry his little black case to Chevalier de la Croix." Is it probable that Clark ever made such statements to this witness? If he felt any uneasiness or doubt about the safety of his will, would he not have had it deposited where it could not have been tampered with. It is proved that the parish judge, Pitot, was named as one of the executors of this will, and that he lived near by Clark. How easily he might have relieved his mind of anxiety about the safety of the will. Is it probable that he could have directed his slave to take his black case and carry it to De la Croix, after his death? He knew that the slave would not have been permitted to take away anything of value from the house after his death. And if he had desired De la Croix to have the will, he would have sent it by his slave during his life. Again he says, "when, after the death of Clark, the disappearance of his last testament was the subject of conversation, I related what Clark had told me about his will, in his last illness. Judge Pitot and John Lynd told me that they read it not many days before Mr. Clark's last sickness; that its contents corresponded with what Clark had told me about it," etc. It appears from his testimony and that of Harriet Harper and Bellechasse, that Pitot was one of the executors named in the will, and that in the will was a legacy of five thousand dollars in favor of Judge Pitot's son. Is it not most wonderful that Judge Pitot who was thus interested, and who believed, according to this witness, that a will had been left by Clark other than the one dated the twentieth of May, 1811, should have probated the said will of 1811 immediately after Clark's death, |