LANGDON et al. v. GODDARD et al., 14 F. Cas. 1101

STORY, Circuit Justice. As I understand the present case upon the bill, answers, and evidence, there is no small difficulty in acting upon it, owing to technical objections, which I do not perceive how the court is to overcome. The plaintiffs, who are citizens of Maine, claim in their character of executors of the last will and testament of Elizabeth Sewall, of York, in the same state, widow, deceased, dated the 25th of July, A. D. 1834. The will has been proved by the executors, both in the state of Maine, and the state of New Hampshire, in the regular probate courts of each state.

The defendants are citizens of New Hampshire. So far, there is no difficulty, and the jurisdiction of this court over the parties is clear and complete. But, then, the plaintiffs have introduced into the evidence other facts, upon which they rely to overcome the answer of the defendant Goddard.

These facts are, that the testatrix, subsequently, on the 11th of July, 1838, executed a codicil to her will (which has been duly admitted to probate); that subsequently, on the 20th of August, 1S38, she executed another codicil to her will, which, however, she revoked by another codicil, executed by her on the next day (the 21st of August); and that, on the same day, she executed another codicil, by which she revoked the appointment of the defendant Goddard, as her executor (he having been appointed executor of her will, and continued as such by all the antecedent codicils), and substituted the present plaintiffs as executors.

These two last codicils have, also, been admitted to probate. But the revoked codicil of the 20th of August is not produced, nor is it even pretended, that notice has been given to the defendant Goddard to produce it, although evidence of its being in his possession is offered; and the contents are attempted to be proved by parol testimony.

The object of introducing the evidence of the revoked codicil seems to be to show, that it was procured fraudulently, and by false suggestions, by the defendant Goddard, for his own benefit and advantage; and that it contained provisions incompatible with the defence set up by his answer. Now, one of the difficulties, that meets us at the threshold of the case, is that not one-of these codicils is, in any manner whatsoever, alluded to in the bill.

The will of 1834, and that only, is referred to in the allegations of the bill; and as the allegations and the proofs must be coincident, and the latter are not admissible, unless they are charged, and put in issue by the pleadings, it is plain, that the court can take no notice whatsoever of the codicils, which have been admitted to probate. What makes the omission the more remarkable is, that the very title upon which the plaintiffs found their right, as executors, to maintain the present bill, depends exclusively upon the last codicil executed by the testatrix.

As to the revoked codicil, it is true, that it having been revoked, it could not be proved in any court of probate. But, on the other hand, it is equally clear, that if the plaintiffs meant to found any claim upon it, or to use it as evidence, or to repel any title of the defendant under it, the bill ought to have stated its existence, and called upon the defendant to make discovery of its contents, and to state whether it was in his possession; and if he should make the discovery, then the instrument might be used as proof.

If he should make none, and yet the possession could be traced home to him, or its destruction could be proved, then parol evidence would be admissible of its contents against him; and not otherwise. In respect to the will and the codicils admitted to probate, the exclusive jurisdiction, as to the probate thereof, belongs to the state courts of probate; and we have no authority, whatsoever, to inquire into, or examine the validity thereof. But, then, to introduce them in evidence, it is essential that they should be set forth and charged as existing instruments in the bill.

This has not been done; and, therefore, I do not see, how the court can take any notice of their existence. Now, striking these codicils, and the evidence appertaining thereto, out of the case, there is no sufficient evidence, upon which the plaintiffs can maintain their bill.

The answer of the defendant, Goddard (for there is no controversy as to the other defendant), wholly denies all the material allegations of the bill; and, as it is responsive to these allegations, it must prevail, unless overcome by the clear and decided testimony of two credible witnesses, or at least by that of one, and other corroborative circumstances, equivalent to another witness. There is no such evidence in the case.

On the contrary, the proofs introduced on behalf of Goddard, go strongly to fortify his answer; and the conduct of the executors, since the death of the testatrix, in appropriating to themselves the shares in the Portsmouth Manufacturing Company, and the Newmarket Manufacturing Company, and treating them as the absolute property of the testatrix, coincides with the statements of the answer. It is true, that these facts are not decisive.

But it is difficult to conceive, how these shares should have been transferred to the testatrix, and the notes of Floyd and Harris indorsed in blank, and delivered with the attendant mortgages to the defendant Goddard, unless they were designed, between Goddard and the testatrix, to be taken as a substituted security, or as an absolute transfer to her, for the amount of the debts due to her by Floyd and Harris, and by Goddard. At all events, I must say, that the case is involved in so much doubt, that there is no ground, upon which a court of equity is entitled to grant relief.

It is never active in a doubtful case; far less in a case, where the circumstances, so far as they go, support an answer responsive to the allegations of the bill, which, if well-founded, furnishes a complete and satisfactory defence upon the merits. My judgment is, that the bill ought to be dismissed, with costs, but without prejudice. [The plaintiffs subsequently filed another bill against William Goddard, charging somewhat differently the transactions between Goddard and Elizabeth Sewall. To this bill Goddard filed an answer, which was excepted to.

The exceptions were sustained, and the defendant directed to answer more fully. Case No. 8.061.J See Lear v. Armstrong, 12 Wheat. [25 U. S.] 169; King v. Inhabitants of Neatherseal, 4 Term R. 258; Price v. Dewhurst, 4 Mylne &. C. 76. 80; Tompkins v. Tompkins [Case No. 14,091].