Tarver v. Tarver

APPEAL from the district court of the United States for the southern district of Alabama.

The appellees, citizens of the state of Georgia, filed their bill in the district court of the United States for the southern district of Alabama against the appellant, Mason Gilliam, and John Gilliam, her son, stating that they and the defendants were the heirs at law of Richard Tarver, who died in the year 1827; that the deceased in 1819 made a will, which they assert to be a conditional will, and which they exhibit; which they also state was not considered as a will by Richard Tarver at the time of his death. That the principal devisee in that will, Benjamin Tarver, one of the defendants, has proved the will in Dallas county, by proving the handwriting of two of the subscribing witnesses, who were dead; the other being out of the state; and that the probate thereof is void; that the said Benjamin has taken possession of all the deceased's lands and effects; and they pray an account of the real and personal estate of the testator, and the time at which it was acquired; and 'that the will may be cancelled, and the property of the deceased be distributed according to the laws of Alabama.'

The copy of the will and of the probate annexed to the will, were as follows.

'Will. In the name of God, amen! Being about to travel a considerable distance, and knowing the uncertainty of life, think it advisable to make some disposition of my estate, do make this my last will and testament. It is my will that my brother Benjamin J. Tarver, should have all my estate both real and personal, except a competent maintenance for my sister Gilliam and her son John Gilliam, and further, he should give the said John Gilliam a liberal education, and then carry him through the study of law or physic, as he may think best; and at the age of twenty-one, give him, the said John Gilliam, twenty-five hundred dollars in money or property.

'Given under my hand this 3d May 1819.

'RICHARD TARVER, [L. S.].

'Test: W. Lyman, William Booker, William H. Carter.

'Witnesses: D. C. Patterson, William F. Hay.

'Probate of will. Orphan's Court, November term 1827. State of Alabama, Dallas county. Personally appeared before me, James Suffold, judge of the county and orphan's court, in the county aforesaid, Joseph Scott, who being duly sworn, saith that he knows the hand writing of William Booker and David C. Patterson, who signed their names as witnesses to the within will, that he has seen them write; that he believes the signatures appearing thereto was their, and each of their proper acts and signatures; that to his certain knowledge both Booker and David C. Patterson are now dead.

'JOSEPH SCOTT.

'Sworn to, and subscribed before me, this 12th day of November 1827.

'JAMES SUFFOLD.

'13th November, H. VANDYKE, Clerk, recorded.'

The answers of the defendant in the district court, declare that Richard Tarver made his last will and testament, as stated in the complainant's bill, but deny that there was a condition annexed thereto. The defendant states that the testator and himself lived together and employed their capital together, and for their joint benefit, with an express agreement, that the survivor should have the whole, which was the joint property of both. At the time the testator executed the will referred to in the bill of the complainant, he executed a will substantially similar in all respects to that executed by Richard Tarver. The answers assert that the probate of the will is in full form and was regular, and that there is no sufficient cause shown in the bill for the exercise of equitable powers by the court.

The district court gave a decree in favour of the complainants, on the ground that the will of Richard Tarver had not been admitted to probate by the proper orphan's court; and of course that it did not appear to the court that he made a will. And also that this proceeding was instituted to set aside the will of Richard Tarver, and no title which the respondent might have to the property of Richard Tarver, can be set up in the case, except such as may be derived from the will. The defendants appealed to this court.

The case was argued by Mr Key, for the appellants; and by Mr Gamble and Mr Wilde, for the appellees.

Mr Justice THOMPSON delivered the opinion of the Court.