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ELLIS and others v. DAVIS.

December 10, 1883


[Syllabus from pages 485-486 intentionally omitted]

The opinion of the court was delivered by: Matthews, J.

Charles C. Leeds and William Reed Mills, for appellants.

J. D. McPherson and C. Carlisle, for appellee.

The appellants, who were complainants below, are alleged in the bill of complaint to be, respectively, citizens of New York or Missouri, or British subjects and aliens, the defendant being a citizen of Mississippi. It is set forth in the bill that Sarah Ann Dorsey died on July 4, 1879, seized in fee-simple of certain real estate, consisting of two plantations in Tensas parish, in Louisiana, an estate called Beauvoir and other property in Harrison county, Mississippi, and real estate, not described, in Arkansas, besides a large amount of movable and personal property, rights and credits, also not described; that she died, leaving no heirs in the ascending or descending lines, the appellants being her next of kin and sole legal heirs in the collateral line, entitled to succeed, in case of intestacy, to the whole of her estate; that during her life-time, on May 10, 1878, Mrs. Dorsey, by a notarial act of procuration, constituted the defendant her agent and attorney in fact, with full and special powers to take exclusive control, charge, and management of all her property and estate, and all transactions and business in any manner connected therewith, including the power 'for and in her name to sue and to be sued, to purchase, lease, alienate, or incumber real estate situate anywhere, to borrow money, execute notes, or other evidences of indebtedness; that, in virtue of said agency, the defendant entered upon and assumed the exclusive management of said property and business, and took possession of all account-books, title deeds, and papers thereto appertaining, and continued in the exclusive control, management, and possession as said agent to the time said agency expired by the death of the principal, and since her said death has still continued in said exclusive possession, management, and control, that though, on the expiration of said agency, it was incumbent on and the duty of said defendant to render to said heirs, all of whom, and their respective rights, were well known to him, a full, fair, and correct account of his administration of said agency, and to surrender to them, all and singular, the said property, account-books, title deeds, papers, etc., which had then come into his possession, and which your orators had well hoped he would have done, yet, on the expiration of his said agency, said defendant, notwithstanding amicable demand, refuses still so to do.' It is further alleged in the bill that the defendant claims that the said Sarah Ann Dorsey, by her last will and testament, bequeathed to him all her property, for his own sole use and benefit, and thereby constituted him her sole heir and executor, and that, by virtue thereof, he is entitled in his own right to said estate; and the bill admits that on July 15, 1879, the defendant caused to be filed in the second district court for the parish of Orleans an instrument written and signed by Sarah Ann Dorsey, of which the following is a copy:


'I, Sarah Ann Dorsey, of Tensas parish, La., being aware of the uncertainty of life, and being now in sound health in mind and body, do make this my last will and testament, which I write, sign, and seal with my own hand, in the presence of three competent witnesses, as I possess property in the states of Louisiana, Mississippi, and Arkansas. I own no obligation of any sort whatever to any relation of my own; I have done all I could for them during my life; I therefore give and bequeath all my property, real, personal, and mixed, wherever located and situated, wholly and entirely, without hindrance or qualification, to my most honored and esteemed friend, Jefferson Davis, ex-president of the confederate states, for his own sole use and benefit, in fee-simple, forever; and I hereby constitute him my sole heir, executor, and administrator. If Jefferson Davis should not survive me, I give all that I have bequeathed to him to his youngest daughter, Varina.

'I do not intend to share the ingratitude of my country towards the man who is, in my eyes, the highest and noblest in existence.

'In testimony whereof I sign this will, written with my own hand, in the presence of W. T. Watthall, F. S. Hewes, and John C. Craig, subscribing witnesses, resident in Harrison county, Mississippi.


'At Mississippi City, on the fourth day of January, eighteen hundred and seventy-eight, the above-named Sarah Ann Dorsey signed and sealed this instrument, and published and declared the same as and for her last will, and we, in her presence and at her request, and in the presence of each other, have hereunto subscribed our names as witnesses.



'JOHN C. CRAIG.' But it is charged that the pretended will is not valid, but is void, because at the time of writing and signing the same Sarah Ann Dorsey was not of sound and disposing mind, because the same was written and signed by her when under the undue influence of the defendant, which undue influence excited and aggravated the causes depriving her of a sound and disposing mind, rendering her more susceptible to such undue influence, and because the motive and object inducing and controlling the testatrix to make the same were contrary to law. The bill then proceeds to recite in detail a narrative of facts alleged in support of these charges affecting the testamentary capacity of Mrs. Dorsey and the integrity of the execution of the instrument as her testament; and alleges further that the defendant, 'though in nowise ignorant of the premises hereinbefore set forth touching the nullity of said alleged will,' nevertheless resorted to proceedings before the second district court for the parish of Orleans for the probate thereof, 'ex parte and without any previous notification thereof, judicial or extrajudicial.' And it is thereupon further alleged:

'That by said proceedings it appears that on the fifteenth July, 1879, defendant, through his attorneys, filed his certain petition, in which he alleges that by the tenor of the last will and testament of Mrs. Sarah Ann Dorsey, dated forth January, 1878, he is made the legatee and executor of the deceased; that said will had been on said day filed, and which he prays might be duly proved according to law; that thereupon an order was obtained that said will should be proved before the judge of said court forthwith; that in accordance with said order, and on proof that said instrument was wholly written, dated, and signed in the handwriting of the testatrix, (the only proof essential under the laws of Louisiana and the practice of its courts for an ex parte probate of an olographical will,) and on the further (and unusual in such ex parte probate) sworn statement of two of the subscribing witnesses that 'the testatrix, Mrs. Sarah Ann Dorsey, at the time of the execution of the aforesaid will, was of sound and disposing mind, a decree of probate, in usual form, was rendered, decreeing the probate and registry of the will and execution of its provisions, including the issuing of letters of executorship, on defendant's complying with the provisions of law.

'That by said proceedings it further appears that without previously qualifying as excutor, or applying for an order of inventory, or in any manner showing to the court the amount of the indebtedness of the succession; without tendering any security to creditors, or deferring his application for a reasonable time within which creditors might, should they desire, demand of him security, or heirs might contest the validity of the will, or any of its provisions, or the sufficiency of the testimony of its probate,–proceedings not only usual, but, as to most of them, essential prerequisites to any demand by a testamentary heir or universal legatee to be put in possession of an estate; yet, notwithstanding this, said defendant, on the said fifteenth July, by representing to the court that the testatrix left no forced heirs and owed no considerable debts, that he was willing to accept and take the succession pure and simple, and that in his opinion 'there is no necessity of further administration,' obtained an order 'that, as the sole and universal legatee of the late Sarah Ann Dorsey, petitioner, Jefferson Davis, be put in possession of all the property, real, personal, and mixed, left by her, and whereever situated.'

'That by said proceedings and decrees said second district court ceased to have jurisdiction over or regarding the administration of said succession, and, owing to his citizenship and the limited jurisdiction of said court, defendant in the premises ceased to be in any manner further amenable or subject to its jurisdiction.

'That although said proceedings and decrees, as your orators are advised, are not res adjudicata against them, yet, nevertheless, in virtue thereof, said will and its order of probate are and will remain a muniment of title in defendant to all and singular the estate of said Sarah Ann Dorsey so long as said will and order of probate shall remain ...

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