TARVER V. TARVER, 34 U. S. 174 (1835)

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U.S. Supreme Court

Tarver v. Tarver, 34 U.S. 9 Pet. 174 174 (1835)

Tarver v. Tarver

34 U.S. (9 Pet.) 174


Alabama. A bill was filed by the heirs at law of R.T., stating, that R.T., being then a citizen of Georgia, in the year 1819, made a conditional will, in which he recites, "being about to take a long journey, and knowing the uncertainty of life, he deemed it advisable to make a will." The will was set out in the bill, and was executed before three witnesses; and devises all his real and personal estate to his brother, B.T., after making a small provision for his sister and her son. R.T. performed the journey, and returned

safe. After the decease in Alabama of R.T., his brother, B.T., carried the supposed will to the County Court in Dallas County, Alabama, to which the intestate and his brother had removed, and where they had purchased and held jointly considerable real and personal estate, and upon proof of the handwriting of two of the subscribing witnesses who were dead, the other witness living in the State of Georgia, the will was admitted to probate. The bill alleges the probate to be void, prays that the will may be cancelled and the estate distributed according to the laws of Alabama.

Held: that this was, not a conditional will. The instrument's taking effect as a will is not made to depend upon the event of the return or not of the testator from his journey. There is therefore no color for annulling the will that it was conditional.

In the case of Armstrong v. Lear, 12 Wheat. 175, 6 Cond. 500, it was said by this Court that no other evidence of there being a will can be received by the court than such as would be sufficient in all other cases where titles are derived under a will, and nothing but the probate or letters of administration with the will annexed are legal evidence in all questions respecting personalty. But the rule there laid down does not apply to this case. Here, the complainant set up the will as the source of his title, and was bound to prove it, which must be done by the probate, which must be set forth in the bill. In this case, the complainant had set forth a copy of the instrument in his bill, alleging it was conditional, and therefore not valid. The defendant was under no obligation to produce any probate. Everything, by the complainant's own showing, was before the court.

An original bill will not be sustained on the allegation that the probate of the will is void. If any error was committed by the court of Dallas County in admitting the will to probate, it should have been corrected by an appeal to the next term of the Supreme Court, in chancery or in the District of Washington, to the superior court of that district, according to the law 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 chanrobles.com-red

Page 34 U. S. 175

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 3 May, 1819."


"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

Page 34 U. S. 176

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."


"Sworn to, and subscribed before me, this 12 November, 1827."


"13 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 favor 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.


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