Brief by Belva A. Lockwood

og News Yor
eral COURT.A

KINGS COUNTY.—GENERAL TERM.

SECOND JUDICIAL DEPARTMENT,







In the Matter of the Probate of the Last Will and
Testament of

MYRA CLARK GAINES, Deceased.

JULIETTA PERKINS and MARIE P. EVANS,
Appellants.

BELVA A. LOCKWOOD,

Of Counsel for Appellants.







BRIEF OF





JOHN A. GROW,
Attorney of Record.

BELVA A. LOCKWOOD anp W. W. GOODRICH,
Of Counsel for Appellanis.

W. T. GILBERT,
Attorney for Appellee, Wu. H. WILDER.

WM. T. HOUSTON,
Counsel for Appellees, Wm. W. Curistmas, Ruopa B.
Kennepy, Jas. M. Coristmas, Wm. W. WHITNEY,
ann ZuLime WHITNEY SUMMERS.

a
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WasuinaTon, D. C.: i(]
i J. S. TOMLINSON, PRINTER,
1893.



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DO i 2



SUPREME COURT,
KINGS COUNTY.—GENERAL TERM.
Second Judicial District.

IN THE MATTER OF THE PROBATE OF THE LAST
WILL AND TESTAMENT OF

MYVRA CLARK GAINES, Deceased.





JULIETTA PERKINS AND MARIE P. Evans,
Appellants,

Vs.

Wu. H. WILDER, Wm. W. CHRISTMAS,
Ruopa B. Krennepy, Jas. M. CuHrRist-
mAs, Wm. W. WHITNEY AND ZULIME
WHITNEY SUMMERS, Appellees.

e-@-e-.
id

The Grounds for Appeal are Newly Discovered and Important
Evidence, and Exceptions Taken at the Trial.

STATEMENT OF CASE.

This appeal is made from the Surrogate’s Court of the
Second Judicial District, to reverse a decree to probate a
pretended nuncupative will of date January 5, 1885, and
for the probate of the olographic will of the decedent, of
date January 8, 1885, by Julietta Perkins, legatee under —
said will, and by Marie P. Evans, executrix under said
will.

This will of the 8th of January, 1885, is a will written
wholly by the testatrix, and signed by her, after counsel
and mature deliberation, as we are able to show.

The appellants are represented by John A. Grow, Attor-
ney of Record, and by Belva A. Lockwood and W. W.
Goodrich, of Counsel. |

The probate of the will of January 8, 1885, is contested
by Win. H. Wilder, who claims as surviving executor of
a pretended nuncupative will of January 5, 1885, which ©
was neither written, read or signed by the testatrix ;






2.

dictated by, or read to her; but which was written by one
John F. Butts, as he states, at the dictation of said Wilder,
as he, Wilder, states, and signed by one Dr. Wm. H.

Holcomb, per his statement. (See Record, pp. 56 and 57.) |

In this pretended will, one Jas. Y. Christmas, now deceased,
was joined as executor. (See pp. 82 and 83 of Record.)
This will of January 5, 1885, was thrown out of the Pro-
bate Court, Division “B,” of New Orleans, for “informality,
and not in accordance with the laws of Louisiana,” Judge
Wm. T. Houston presiding, now sole Counsel for the pre-
sumptive heirs of the decedent's estate, February 21, 1885.
No appeal from this decision has ever been taken. (See
p. 46 of Exhibits.) This appellee, Wm. H. Wilder, is rep-
resented by W. T. Gilbert, Esq.

The probate of both the olographic will and the pre-
tended nuncupative will are contested by the surviving
children of the daughter of the late Myra Clark Gaines—
Rhoda Whitney Christmas, also deceased—viz: Wm. H.
Christmas, Rhoda B. Kennedy and Jas. M. Christmas ;
and by the illegitimate heirs of the son of the decedent,
Wm. W. Whitney, by one Hattie L. Hall, viz: Wm.
Wallace Whitney and Zulime Whitney, (one daughter,
Myra Clark Whitney, having died since these proceedings
began,) who ask for administration as of an intestate
estate, and who are represented by W. T. Houston, Kisq.,
the former Judge who sat upon the two wills in New
Orleans. |

It is also represented that a previous nuncupative will
was executed by the decedent, or attempted to be execu-
ted by her, of date January 4, 1885, (see p. 471 of the
Record,) in which the said Wm. H. Wilder appears as sole
executor, and the so-called Whitney heirs are omitted.
Blanks for the amount of legacies were left in this so-called
will to be filled in later, and Mrs. Gaines positively opposed
at that time the naming of Christmas as one of her exec-
utors. When Christmas ascertained this, he insisted on

being named as executor, and this resulted in the pre-

tended’ nuncupative will of January 5, 1885.
It is further represented that one Geo. F. Timms, of
Washington, D. C., is the assignee by purchase of such



See The






Tiss



3

portion of Mrs. Gaines’ estate as legally belongs to the
Christmas heirs.

It will also be observed that in the petitions filed by the
opponents for the probate of the pretended nuncupative
will, or for administration, the amount of the estate is not
set forth in whole or in part.

When Mrs. Gaines died, the judgment of Judge Billings
of New Orleans had been rendered in her favor for
$1,925,667.83, together with $34,000 costs. This judg-
ment was reduced by the United States Supreme Court
after Mrs. Gaines’ death, by $1,200,000. The amount final-
ly adjudged as subject to administration was $561,313.42,
with $34,000 accrued interest, allowed by the United States
Supreme Court, April 4, 1891.

ARGUMENT versus ADMINISTRATION.

1.- The opponents to the olographic will should be estop-
ped from administration, for the reason that this procedure
would entirely disinherit Wm. W. Whitney, Zulime Whit- _
ney Summers, and Hattie L. Hall, the mother of these
children, who might otherwise inherit as the heir of her
deceased daughter, Myra C. Whitney, under the laws of
Louisiana, where the real estate lies; and it would seem
as though the Whitneys would never have placed them-
selves in this position had they been properly advised by
counsel. The tendency of the allowance by the Court of
administration, would be to throw the whole estate into the
hands of the Christmas children, whose claim, it is under-
stood, has been assigned to one George F. Timms, of Wash-
ington, D. C., for moneys advanced. to them during the
years of this litigation; whereas, the Whitney children
were equally recognized by Mrs. Gaines, with the Christ-
mas children, as her grand-children, and were maintained 3
by her up to the Aster of her death.

‘It was, no doubt, her intention that all of these grand?
children should inherit equally; and although it is not
even contended that the Christmas heirs are legitimate,
our American law has not the barbarity of the English
common law, that denies to the bastard any inheritable
blood, for under it the child may inherit from its mother,




4

but not from its father. (See testimony of Julietta Per-
kins, Rane C. Hutchison, Ella Henderson Whitney, and
Record.)

2. Again, the defendants should be estopped from admin-
istration because the decedent left behind her a good and
valid will, duly and properly executed by herself, in her
own handwriting, which she had duly contemplated for at
least three years previous to her death, as will be seen by
“The Little Blue Paper,’ marked “Exhibit 4,” of Novem-

ber 10, 1881, ‘The Confidential Letter,” of August 23, ’84,

(see p. 65 of Record,) and by the testimony of eight relia-
ble witnesses, namely: Adolf Bouchard, p.419; Mary E.
Walker, p. 405; Elanor A. Garnétt, p. 200; Annie Harris
Griffin, p. 210; Wm. R. Evans, p. 220; Olive M. Hecht-
man, p. 644; Frank L. Arthur, not in type; John H.
Russell, p. 643. This will, Mrs. Gaines prepared with her
own hand, after due consideration, and after taking legal
advice upon it; (see testimony of Nannie H. Griffin and
Burche, Hx., p. 43,) and for at least one year she wore it
upon her person, that she might use it in case of an emer-
gency, (see affidavit of Brown,) and she did use it. It
undoubtedly contained her exact wishes, formulated after
the intention of many years of intimate acquaintance with
Mrs. Evans, during which time they were virtually bus-
iness partners, and after much thought, subsequent to the
death of her only daughter. |

3. Defendants should not be allowed to administer, be-
cause it was not the desire of Myra Clark Gaines that the

estate, for which she had so long contested, should be dis- _
posed of in this manner, but in the manner that she had.

herself prescribed after due and careful consideration, and,
as she believed, in the interest of all those persons for whom
she desired to provide. 7

4. The defendants should be estopped from any attempt
at administration, for the reason that they have set forth
no marriage of parents on either side; no testimony of
pedigree from,.or consanguinity with, the testatrix; and
have set forth no rights under the laws to entitle them to
administer; and notwithstanding the allegations of the
pretended will, not one of them was actually born in law-



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+ 2
TO RCT Pit a Si ha nih

5
Jul wedlock. (See Wilder’s testimony, p. 471 of Record.)

ARGUMENT versus THE PROBATE OF THE PRETENDED
Nunoupative WILL or January 5, 1885.

1. This paper should not be probated because it is not
the will of Myra Clark Gaines. |

2. It should not be probated because it is opposed by all
of the parties in interest except Wm. H. Wilder, in whose
head it was conceived, and by whose machinations it has
thus far been carried out.

3. It should not be probated because it was thrown out
of the Civil District Court of Louisiana, as a nullity, for
being informal, and not in accordance with the laws of
Louisiana. :

4. It should not be probated because the separate par-
agraphs of said pretended nuncupative will are not intel-
ligible, or capable of a valid interpretation; and because
it contains legacies to parties not of kin, or having a valid
claim on the estate of decedent of nearly $330,000—more
than one-half of the whole estate now available—which is
contrary to the laws of Louisiana, where it is evident that
the lex /oci must prevail instead of the lex fort. (See Lou-
isiana Civil Code, p. —, which says that a testator cannot
divert from forced heirs more than one-third of his estate.)
- 5. It should not be probated because’ the surviving
executor named in said paper, who is to act without bonds,
is not a person to be entrusted with an estate, having been
once indicted, (October 9, ’52, p. 27, Ex.,) and convicted of
forgery, served a term, to wit: July 3d, 1856, p. 250 of
Record, and who was indicted the second time in 1878, in
the Libretto Market case, for fraud and forgery. He
escaped indictment the third time early in the winter of
1883, about forged letters purporting to come from Mrs.
Gaines, because that lady herself appeared in his behalf
and withdrew the prosecution. (He was arrested and ©
indicted the second time, but the State failed to disburse the
money necessary for the prosecution, and the cause re-
mained upon the record of said Court until after this suit
was begun.) And who has presented a fraudulent claim
against the estate of the decedent of over $260,000, when,




6

in point of fact, there appears of record an acquittance from
Wilder of all indebtedness to him by Mrs. Gaines a few
months before her death, of which we offer an exemplified

CUB: |
6. That the paper purporting to be the nuncupative will
of January 5th should not be probated because it is not prob-
able that Mrs. Gaines ever intended to appoint a convicted
criminal, of whom she stood in dread, and who had already
despoiled her estate, as her agent, her executor ; and to join
him, a pretended son-in-law, whom she hated—who had
eloped with her married daughter, had murdered her son,
and whom she had saved from the gallows to prevent the
entailment of disgrace on her descendants. (See Record
of District of Columbia, showing indictment of Christmas,
and testimony of Dr. Holcomb and Hutchison, etc.)

7. Thig paper, or so-called will, was never conceived by
Mrs. Gaines; was not dictated by her, read to her, or
signed by her; but was dictated by Wilder, written out

by Butts, and signed by Holcomb, who says he put the

peu in her hand, held her wrist, and guided her hand to-
make the cross, at which she frowned, and which she
seemed very averse to do. Butts says that he corrected
Wilder’s dictation, for “if I had written out all that Mrs.
Gaines said in her rambling way I would have had a will
more than 17 miles long.” (See p. 40 of Record.) Hol-
comb says: ‘She did not want to sign it.” (P. 190 of
Record.) “She never touched the will! It was laid on a
book before her just at the place where she had to sign.
The fact was she had a scowl on her face unmistakable, as
if she hated everybody in the room; and she told me
repeatedly that she hated Mr. Christmas. She was ex-
ceedingly reluctant to sign it.”

ARGUMENT IN Favor OF THE APPEAL, AND FOR THE
PROBATE OF THE WILL OF THE 8TH oF JAN., 1885.

1. We ask for the probate of the will of the 8th of Jan-
uary, 1885, because at 2s the will of Myra Clark Gaines,
a will conceived by, written out by, signed by, and dated
by the testatrix herself, after mature deliberation, and after

legal advice as to its effect and legality, and the knowledge
A PRP i OAH —s

7
and advice of friends in whom she had confidence. It was
the culmination of a long-cherished wish, and a settled
conviction that it would be the best thing for her estate,
and for the welfare of her grand-children. She knew Mrs.
Evans’ interest in them, and her kindness of heart, and
her business ability ; for she had been associated with her
socially and in business for 14 years; knew her knowledge
of the law, and her facilities for raising money should. an
exigency occur with reference to the estate. Julietta
Perkins had been her intimate friend for 14 years, and her
acqnaintance for a much longer time, in the beginning of
which Mrs. Perkins was possessed of ample means. Mrs.
Evans had been her adviser, her comfort and support in
many of her darkest hours, and notably so on the occasion
of the shooting of her son by Christmas, in which she
telegraphed Mrs. Evans to come to her at once! (See
testimony of Hutchison, and affidavit of Brown.)
She had been coerced, against her will and against her

better judgment, as Dr. Holcomb tells you, into signing —

this pretended “will of the fifth,” but with the conscious-

ness that she had the will of January 8th on her person,
and this fact was not unknown to the wily attendants
surrounding her. Mrs. Davis tells us that while she was
taking that unfortunate hot bath which led to her untimely
taking off, and against which Dr. Holcomb advised, that
she, Davis, was searching her bed for twenty-odd minutes
for private papers. It was well known by her intimate
friends that Mrs. Gaines carried important papers upon her
person, and of these Christmas and Wilder desired to pos-
sess themselves. (See testimony of Arthur and affidavit
of Brown.) Christmas said to Arthur, after he had seen
the will on the morning of the 8th: ‘“We knew she had a
will but we could not find it.” |

Besides this, Mrs. Gaines was interested in both the
Cotton and the Bank cases, which were being prosecuted
by Mrs. Evans, and in the latter one to the extent of
$20,000, and this contract is still extant, and in force.

Their interest and tastes were largely identical. They
were born in the same region of country, in similar sur-
roundings; both were cultured and educated, and both of






8

them spoke the English and the French tongue, (the latter
their native language.) Mrs. Gaines had no living daugh-
_ ter, and no faith in the friends and members of her own
family who surrounded her, and to whom, not even to
Christmas and Whitney, (her own son,) did she confide
her business affairs.

This simple, olographic will, so common in the States of
Louisiana and Texas, where the old Roman law prevails,
is a type of the woman herself, in its femininity, and in
its originality, and the form of will of her own father,
Daniel Clark, which she had fought fifty years to maintain,
and presumably the only form of will of which she had any
knowledge.

But it is claimed by opposition that this will is a forgery.
If the Court is to believe this, then it must believe the
whole body of the will, as well as the signature, is a for-
gery; that “The Confidential Letter” of August 23, 1884,
is a forgery; that “The Little Blue Paper” is a forgery,
and that from 50 to 100 letters by Mrs. Gaines to Mrs.
Evans, from 1880 to August 23, 1884, are forgeries; and
that the witnesses, Hechtman, Walker, Garnett, Burche,
Griffin, Arthur and Bouchard, who all testify to have pre-
viously seen the will in Mrs. Gaines’ hands, or “The Little
Rlue Paper,” and to have talked to her abont it, are
perjurers.

Mrs. Gaines was a voluminous writer. Her hand-

writing, from 1870 up to the day of her death, is in this
Court. :
Her pension vouchers, attested by a N otary, witnessed
by two friends, and certified by the Secretary of the Treas-
ury of the United States, of date, December 4, 1884, are
before the Court and cannot be controverted. These sig-
natures would show exactly the character of Mrs. Gaines’
writing up to a little more than a month previous to her
death. Wm. H. Hagen (expert, pp. 656 and 657) declares
the signature to the olographic will, genuine, and so does
Expert Kelly, after a very critical cross-examination.
(See pp. 674 to 709 of Record.)

It is claimed by one of the experts, that in no instance,
except where she has written the word Myra alone, does

a ee

CORRS ENE I

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= nt maleate

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&,

Y.

the loop at the end of the word occur, and yet we have
offered an Exhibit, a signature of Mrs. Gaines, under seal
of Notary Vinet of New Orleans, where the full name
occurs with the loop at the end of the word Myra. Wil-
der, who pronounces the signature to the olographic will
a forgery, declared also that Mrs. Gaines’ signature to this

Notarial Act was a forgery, when he did not know the -

nature of the signature to which he was attesting.

But Mrs. Elanor A. Garnett saw Mrs. Gaines writing
the will, took it from Mrs. Gaines’ hand and read it to
Caroline Johnson. She saw also “The Little Blue Paper.”

Miss Nannie Griffin, at the request of Mrs. Johnson, handed -

the will to Mr. Burche, who read it, (a lawyer called by
Mrs. Gaines, who had requested her to ask Burche, “if it
was a perfectly good will,”) and he replied that it was,
only that it needed a date. Dr. Mary Walker testifies
that she saw the will in the latter part of August, 1884,
and that at that time it was signed, but not dated. Mrs,
Gaines said she would date it when she got to New Or-
leans. (See p. 395 of Record.)

Mrs. Hechtman saw “The Little Blue Paper.” Adolph
Bouchard met Mrs. Gaines at his office in the Custom
House in New Orleans, on the morning of the 24th of
December, 1884, and asked for Mrs. Evans, and showed
him, Bouchard, the will, written and signed, but without
date; and she said she would date it as soon as she saw
Mrs. Evans, (p. 419 of the Record,) and he states that up
to that date there was no ill-feeling between Mrs. Evans

and Mrs. Gaines, and Mrs. Gaines at this time calls Mrs. —

Evans “Her Little Pilot.”

The witnesses of the opposition, who testify so positively
that Mrs. Gaines did not sign the olographic will on Jan-
uary 8, 1885, are probably correct, for it was not con-
tended that she did sign it on that date, for it had been
signed long before, and this is what makes the signature
so good. The only thing left to complete the will, was the
words, “January 8th, 1885.” 3 .

Frank L. Arthur, to whom Mrs. Gaines had shown this

will in Washington in September, 1884, and who told him

why she carried it on her person, swears that he saw her




10

date it at 150 Thalia street on the morning of January
8th, 1885, and that Christmas saw her date it also. When
it was offered for probate, witness then said to Christmas,
“The old lady has gained her point. She has got her will
into Court!” Christmas was watching Mrs. Bradley, when
Bissell and Boyd saw her give the will to Mrs. Evans, and
he motioned them not to disturb the interview.

It is acknowledged by all parties that Mrs. Gaines and
Mrs. Evans were friends for many years, but an effort has
been made by parties interested in the probate of the pre-
tended will of the 5th, to show that a rupture occurred in
their friendly relations on or about September, 1881, when
Mrs. Gaines left the Vermont avenue house and returned
to Mrs. Harrover’s on I street; that this difference never
healed, and that it continued up to the date of Mrs. Gaines’
death. Neither this assumption, or assertion are true.
On the contrary, you have the testimony of Hutchison,
that Mrs. Gaines visited Mrs. Evans every day in the
November following, until Mrs. Evans went to New Or-
leans, and that this intimacy continued to his knowledge
up to Mrs. Gaines’ death. (See testimony of Hutchison,
and letters of Gaines to him on file ;) the testimony of Wm,
Reed Mills, Esq., who secured the judgment for Mrs.
Gaines in Judge Billings’ Court of over $2,000,000; (pp. 287
and 288 of Record ;) the testimony of Bouchard, who saw
Mrs. Gaines in his office in New Orleans with the will,
December 24, 1884; and the testimony of the eight pre-
vious witnesses, alluded to, who all controvert this as-
sumption.

Mr. Mills states: ‘But there was a quarrel out of the
percentage Mrs. Gaines was to receive in the ‘ Bank Case,’
(pages 287 and 288,) but no interruptions in their friendly
relations.”

“T don’t think this misunderstanding about the percent-
age caused any interruption of their friendly relations, be-
cause at that time they were frequently together in my
office, (see p. 287, Record.) As to social and friendly rela-
tions, I always supposed they were quite intimate and
friendly. I know that was the expression of those two
persons, Mrs. Gaines on one side, and Mrs. Evans on the












11

other, but of course as to the sincerity of the friendship,
one must judge for himself; but I never doubted the
extreme friendship between Mrs. Gaines, Mrs. Evans and
her mother, and I do not to-day; and I had a pretty good
opportunity ofjudging. At times I think that Mr. Wilder
and Mrs. Gaines were afraid of each other.’ (See testi-
mony of John H. Russell, p. 645 of Record, who says
Mrs. Gaines told him in August, ’84, that “ Mrs. Hvans
was her very dear friend.”) |

That there was jealousy created in the minds of Christ-
mas, of Wilder and of the so-called Mrs. Whitney as to
Mrs. Gaines affection for Mrs. Evans, faith in and reliance
upon her, there are too many palpable evidences to doubt.
Christmas had already killed Whitney, Mrs. Gaines’ only
son, through jealousy of Mrs. Gaines estate; Hutchinson,
as he himself states, had warned Christmas that Mrs.
Evans would be made her executor; Wilder, her agent,
whom she feared, but who was so thoroughly identified
with her lony and intricate litigations that she could not
get rid of him, and whom she did not dare to fight openly,

had been for a long time striving insidiously to poison ~

Mrs. Gaines’ mind against Mrs. Evans for his own pur-
poses; and the so-called Mrs. Whitney, who had been only
tolerated by Mrs. Gaines during the life-time of her son,

because she feared that he might at any time be arrested —

for bigamy; and Hutchinson, who had quarreled with
Mrs. Evans because she refused to give him a 25 per cent.
interest in the ‘‘ Bank Case,” did all he could, as he tells
us in his testimony, to turn Mrs. Gaines’ mind against
Mrs. Evans, because he was angry with Mrs. Evans and
wished to defeat her. It was for this reason, he says, that
he selected all of Mrs. Gaines’ letters from 1882 until 1885,
whose signatures differed from that in the olographic will
presented by Mrs. Evans, and sent them to the Court in
New Orleans on purpose to defeat her, but he dared not
appear in Court against her; and says, in what should be
considered a confession, that he never succeeded in weak-
ening Mrs. Gaines’ confidence in Mrs. Evans to the day of
her death. This witness, at this late day, volunteers to












12

undo the’wrong he once did to Mrs. Evans, and unlike the
witness Bradley, does not attempt to retract it.

It is true that the letters of Mrs. Gaines, taken as a
whole, show some very peculiar traits of character, amount-
ing at times almost to duplicity, and yet they are quite
intelligible to those who knew intimately that curious
combination of pliability and firmness, who was so easily
moved to the right or the left, but who invariably returned
to her own well-formed and fixed opinions. Should the
olographic will be discredited, which we do not believe, it
will be difficult to disprove of the genuineness of “The
Little Blue Paper” and ‘The Confidential Letter.”

There is still one other point in this remarkable romance
in real life stranger than fiction, and that is the method by
which Mrs. Evans became possessed of this will, after its
execution, despite the persistent and unremitting guard
that was kept over Mrs. Gaines to prevent its delivery to
her, and to prevent any communication between Mrs.
Gaines and Mrs. Evans.

The witnesses differ as to the exact date Mrs. Gaines
arrived in New Orleans. Wilder says November 14th;
Whitney between October 6th and 7th. Mrs. Evans-did
not arrive there until December 11, 1884, and December
23d was the last time she ever saw Mrs. Gaines alive. Up
to this time they had met every day since their arrival in
New Orleans. We will take her own testimony. Mrs.
Evans says, (see p. 206 of Record,) “The last time I saw
Mrs. Gaines was the 23d of December. I was taken ill
that night after Mrs. Gaines called upon me, and did not
again leave my room until the morning of the 9th of Jan-

uary, when I went to call upon my attorney. There was

a motion pending in a case. On that day I called at 150
Thalia street. I did not know that Mrs. Gaines was ill
until that day. A little girl bade me come in. I followed
her until I came into a room where two men were talking,
(Christmas and Wilder.) As I was about to enter Mrs.
Gaines’ room Christmas exclaimed, ‘Madam, you cannot
go in there!’ (p. 261 of Record.) I answered that ‘I have
just heard that Mrs. Gaines is dying.’ Christmas answered

2

Fo

AE pean










13

‘very well, madam, but you don’t go in that room!’”’
and Mrs. Evans, as any other lady would, retired. It is
not difficult to understand why, even at that late hour,
when Wilder and Christmas supposed they had the will of
Mrs. Gaines securely fixed in their favor, that they should
have feared Mrs. Evans’ influence over Mrs. Gaines, or
Mrs. Gaines’ affection for Mrs. Evans. If this pretended
nuncupative will had been a paper that Mrs. Gaines
desired really to go into effect, no influence would have
made her waver, and no person would have had any right
to interfere. It cannot be claimed that Mrs. Evans, an
intimate friend, was kept out of Mrs. Gaines’ room on
account of the weak physical state of Mrs. Gaines, for if
we are to believe the testimony of the opposition, not less
than ten or twelve persons were constantly going and
coming through that sick room; and many more had been
admitted to it, and yet Mrs. Gaines was virtually a pris-
oner in the hands of these conspirators, so far as Mrs.
Gaines’ personal friends were concerned. Her attorney,
Mr. Mills, had also called at the house and had been
refused admission. But Mrs. Evans went to her lawyer's
and again returned to the house.

She summoned courage to go again to the house and
room of her friend to which she had been so cruelly refused

admittance, and as she turned to enter, saw standing on

the block step a woman, who had hurried out of the house,
and who, leaning towards her said, “Are you Mrs. Hvans?”’
who answered “ Yes, is Mrs. Gaines dead? A. “No, she
is not dead, and neither speechless or unconscious; she is
talking about her business now, and she has just talked
with me. Mrs. Gaines has told me, ‘Letitia, if I never
see Mrs. Evans again, promise me that you will hand her
this for me.’ Now Mrs. Evans, I give you this, (handing
her the olographic will wrapped up in a small ladies pocket
handkerchief,) I have done what I promised, but I want
you to make me one promise. I want you to promise me
that you will never bring my name into this thing; I want
to have nothing to do with those bad men, Christmas and
Wilder.” Mrs. Evans, with the will, then returned to her

lodgings, and on her way there, stopped at her husband’s





' ©
14

place at the Exposition grounds, gave him the will, and he
placed it in his armoire where it remained wel it was
withdrawn and given to her lawyer, Mr. Mills, who gave
it to Hall and Breaux for probate.

It does not matter how this will reached Mrs. Hivans,
if the will itself is genuine, as we assert, but because sae

circumstances have been denied on the stand by the woman

Bradley who delivered the will, it seems necessary to give
it some attention. Mrs. Bradley (so-called) afterwards

refuted this testimony, (see p. 97, Ex.,) and then refuted

her refutation. In this paper of restitution she says, ‘“The
will was already written and signed, and she (meaning
Mrs. Gaines) put in the date only.” This, Arthur’s testi-
mony corroborates. (See also testimony of W. R. Evans
about paper of restitution.)

If the manner in which this will reached Mrs. iia
rested upon her uncorroborated statement, or upon the
equivocal statement of Bradley, we must then weigh the
testimony of the two in the balance against each other;
but we have the unpublished testimony of Arthur, who
saw Mrs. Gaines write the date, January 8th, in the will,
while he and Christmas were looking at her, the words
‘New Orleans” having been already written, and the un-
disputed and disinterested testimony of Bissell and Boyd,
who both saw the delivery of the paper which Mrs. Evans
relates, and the testimony of W. R. Evans as to its receipt
by him on the evening of the 9th of January, and the
corroboration of the following dates, by her attorneys
and the Court records. We present an unbroken chain

of evidence, well corroborated, of Mrs. Gaines’ intention

to make a will in Mrs. Evans’ favor; the actual making
of the will except the date, and the pinning it on her
person, (see affidavit of Brown, Bissell, and Evans,) the
wearing of it through the year, the dating of it by her,
(see testimony of Arthur,) and the delivery to Mrs. Evans,
(see testimony of Bissell and Boyd.)

The conspirators to the pretended nuncupative will of
January 5th had laid their plans well to prevent opposition.

Mrs. Gaines had been in the hands of, and under the
close supervision of Christmas from the moment that she










= ee i i A asi wi be it : . , . Pe : ~ iibing ~



®

15

had reluctantly consented, under the persuasion of Hutch-

ison, as he tells us, to take him with her to New Orleans.
She was now ill in Mrs. Virginia H. Davis’ house, and
that lady must necessarily know most of the things that

transpired there. After Mrs. Davis’ testimony was taken ‘

in New Orleans, she refused to return for cross-examina-
tion. Wilder had made her the first legatee under this
pretended will by bestowing upon her a plantation of
nearly 800 acres of ground situated in the Parish of St.
Landry, and worth from $50,000 to $75,000. Naturally
it closed her mouth to any word or act that might militate
against the validity of this pretended will. Christmas,
who had gotten himself into this pretended will as co-ex-
ecutor, was placated with a legacy of $100,000. The

fraudulent widow of Mrs. Gaines’ dead son, mother of these

so-called three infant heirs, the Whitneys, opponents
herein, who was the next person most to be dreaded
by Christmas and Wilder, was given another legacy of
$100,000; Edward Pendleton Gaines, step-son of the dece-
dent, $25,000; to George W. Benson, a friend, $10,000;
to Rev. John W. Harman, $10,000; to Myra Clark Gaines
Mazerat, (grand-daughter of Wilder,) $20,000. We have
here in legacies in this pretended will fully $330,000, or
considerably more than one-half of the whole estate; nor
is this all. Mr. Wilder testifies that on the 8th of January
a promissory note of seven hundred odd dollars was drawn
up for Mrs. Gaines by Mr. Anatole Ker, a Notary, in favor
of a Mr. Bradley, (p. 503 of Record) and that Mrs. Gaines
signed this note by mark, and also states that on the same
day a donation was made to Mrs. Davis, which was also
signed by mark. |

This was the culmination of the conspiracy. The con-
ditions of the will were supposed and intended to placate
everybody able to make a formidable opposition to it except
Mrs. Evans, and the only way to dispose of her was not to
allow her to see Mrs. Gaines at all, or in other words to
cut off all communication between them. They knew she
had this will prepared before Christmas and Arthur had
seen it dated, and they had no faith that she would not
attempt to deliver it, nor had they any faith in the woman


16

Bradley. Christmas said of her to Arthur: “She is a
she devil, and I must watch her,’ and to excuse himself
for watching her said to Bissell and Boyd: “It is business
this time.” It was for the purpose of watching and con-
trolling the woman Bradley, then known as Gonzales, so
that she could not deliver the will to Mrs. Evans, that
this bogus marriage was gotten up, that took place on the
afternoon of January 9th, and this note of over $700 was
the sop given to the man Bradley for marrying the woman.
(See testimony of Wilder, p. 510 of Record.) Notwith-
standing this precaution the woman Bradley did deliver
the will to Mrs. Evans, but asks not to be known in it,
and then for fear that she will forfeit the note, denies it.
In the meantime the man Bradley disappears, the note
was sold to John Clyne, and Mrs. Bradley in the presence
of Wilder is promised a brick house ‘for something she has
done for me.” So Bradley and Wilder testify that Mrs.
Gaines said, and this was on the evening of her death.
There is one other point of interest, and that is Mrs.
Gaines ability to have written, “January 8th”’ to the will,

Me

on that date. She did sign by mark two other papers in ©

the evening of that day as the witnesses state. It was the

date of the unfortunate bath which she persisted in taking, ©

when she sat up by herself twenty minutes, and which
Mrs. Adolphine Case swears that she would have taken
by herself had they not assisted her, so strong was .her
determination to take the bath. But there were eye wit-
nesses to the signature. |

It is, however, a very common occurrence, quite patent
to those who are familiar to the sick chamber and with
death, that an apparently unnatural strength both of
mind and body occurs often the day before, and sometimes
only a few hours before final dissolution, so marked that
friends are often encouraged that the patient will recover,
even when the death shadow is over them. The execution
of important papers at such times has not been uncommon.
Even the opponents to the will of the 8th testify that Mrs,
Gaines’ mind was clear enough on that day to make the
two donations named above, but that she signed by mark.
But Mrs. Gaines was a ready writer and had a curious
















nth TO ON ie it ge
re









17

way of avoiding what she did not wish to do. These do-.
nations were the donations of Christmas and Wilder and

not of Mrs. Gaines. Wilder says that Christmas wrote
the $700 note to Mr. Bradley, contradicting his former
testimony, and that he, Wilder, guaranteed its payment.

Mrs. Gaines, as Dr. Holcomb tells us, “was angry and
vexed at all of the business transactions that had been
crowded upon her” by the conspirators on January 8th.
Now we come to the close of the last day of her life, Fri-
day, January 9th.

The marriage had been consummated and the note
delivered. They had secured all that they wanted for
themselves, and the Bradley woman had delivered the will
to Mrs. Evans at five o’clock, and Mrs. Gaines says to Wil-
der, “‘I want you to buy a brick house for Letitia, (Mrs.
Bradley,) with a bay window and marble steps.” (See
Wilder’s testimony, pp. 503 and 504 of Record.)

Without divulging to Wilder her motive, she thought

~to compensate Bradley for delivering the will to Mrs.

Evans, and, according to the opposing witnesses, her mind
was perfectly clear at this time, and she exemplified in it
the truth of the old adage, “The ruling passion strong in

death.”
Betva A. Lockwoop,

Of Counsel for Appellants.

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