Michoud v. Girod/Opinion of the Court
There were four inventories made of the property of the deceased, namely:--
November 12th, 1813. In the parish of Assumption.
February 3d, 1814. In the parish of Assumption.
February 18th, 1814. In the parish of Assumption.
February 26th, 1814. In the city of New Orleans.
The amount of all these inventories was $124,594.45. In the fourth inventory was included the half of a house and lot at the corner of S. Louis and Chartres Streets, in the city of New Orleans, whereas the complainants alleged that the whole of it belonged to the deceased, and ought to have been included in the inventory.
The bill then charged, that the executors plotted and contrived to obtain possession, for their own use and benefit, and to the wrong and injury of their coheirs, of the entire succession and estate of their deceased brother, by virtue of the following proceedings, which were charged with being illegal and fraudulent, namely:--
On the 19th of January, 1814, the executors presented the following petition:--
'To the Honorable Fran's Corvaisier, Judge of the Court of Probates of the Parish of Assumption, Lafourche.
'The petition of Nicholas and Jean Fran ois Girod, both merchants, residing in the State of Louisiana, and testamentary executors of the late Claude Fran ois Girod, deceased, in the said parish, humbly showeth:--
'That their deceased brother, Claude Fran ois Girod, by his testament dated the 30th of November, 1812, has appointed them his testamentary executors and detainers of his estate, and, as such, given to them full power and authority to cause an inventory of all his property to be made, without intervention of justice, to sell or cause to be sold his property, in whole or in part, as to them will seem best for their own interests, and for those of the absent heirs named in said testament.
'Wherefore petitioners pray the honorable court to order, that the sale of the movables, movable effects, and of the main plantation, as also of the slaves of both sexes employed thereon, and other lands adjoining thereto, and making part thereof in the lifetime of the deceased, be made at public auction, for cash, as consisting in part of perishable objects, and for the purpose of paying the debts of the succession, after the usual delays, advertisements, and publications required by law.
'The 19th of January, 1814.
(Signed,) N. GIROD, Testamentary Executor.
JN. FS. GIROD, Testamentary Executor.'
On the 16th of February, 1814, the following bond was executed:--
'Whereas, the honorable judge, Fran ois Corvaisier, thinks that he is not authorized to sell the several properties situated in the parish of Lafourche, interior, as being without the jurisdiction of his said parish; and whereas we are desirous to remove all the liabilities which the said honorable judge might subject himself to, by selling said lands in the same manner, and at the same time, as those situated within his jurisdiction. Now, therefore, as testamentary executors of the late C. F. Girod, we do bind ourselves, by these presents, to protect and warrant said honorable judge against all the troubles and difficulties which might be the consequence of his thus selling the lands of the succession situated out of this parish.
'In faith whereof, we have signed these presents, to be by him used as of right. Parish of Assumption, the 16th of February, 1814.
(Signed,) JN. FS. GIROD.
JN. FS. GIROD, Executor.'
On the 18th of February, 1814, a sale took place, as evidenced by the following paper:--
'State of Louisiana, Parish of Assumption, the eighteenth day of February, in the year 1814.
'On the day and year aforewritten, upon the request of the testamentary executors of the late C. F. Girod, I, Fran ois Corvaisier, judge of the said parish, did repair to the sugar-plantation of the deceased, and we there proceeded to the sale and adjudication (as requested), of the property, both movable and immovable, belonging to the succession, to wit:--'
(Then follows an enumeration of plantations, tracts of land, and personal property.)
'N. B. A certain lot of ground situated at Donaldsonville, which, through error, was included in the original inventory, has not been sold, because it does not belong to the succession, but to one F'se Wiltz, a free woman of color. And the present sale being concluded on the day and year aforewritten, we have closed these presents, amounting to the total sum of eighty-four thousand seven hundred and fifty-five dollars and forty cents, omissions and errors of calculations excepted. And the witnesses, the last appraisers, and the parties interested, have signed, before the judge of the aforesaid parish of Assumption, on the 18th of February, 1814.
(Signed,) JN. FS. GIROD, Testamentary Executor, for self, and by procuration of his brother, N a's Girod.
ETIENNE BOUDREAUY, witness.
JACQUES TERIOT, do.
L. RICHE, do.
P. L. LAURET, do.
Ordinary mark of PIERRE CANCIEL, do.
JUAN VIVES, do.
J. BERN'DO DE DEVA, do.
'Before me, F. CORVAISIER, Judge.'On the same day, namely, the 18th of February, 1814, the following judicial adjudication of the property was made, being in the nature of a deed:--
'State of Louisiana, Parish of Assumption, the 18th of February, 1814.
'At the request of the testamentary executors of the late C. F. Girod, J. F. Corvaisier, judge of the aforesaid parish and of the Court of Probates, did repair to the sugar-plantation of said deceased, where, the customary formalities being complied with, and the sale having been announced by the public crier, I proceeded, as requested, to sell at auction, and for cash, to the highest and last bidder, on account of said succession, or those interested therein, all the lands, slaves, and other property situated in this parish and county of Bayou Lafourche, to wit: Thirteen tracts of land or plantations, cultivated or otherwise, including thereon the sugar-plantation [and] three small islands lying at the mouth of said bayou; also one hundred and seventeen slaves, employed on said sugar-plantation, said slaves being of different ages and sexes, in good health, sick, infirm, crippled, and such as they are or may be, and no warranty being given to the purchaser against the redhibitory vices and maladies prescribed by law, said warranty being on the contrary absolutely and totally refused; also a cotton-gin adjoining said sugar-plantation; also a distillery in operation, with its implements and appurtenances; also all the horned cattle, mules, horses, carts, and wagons; also all the implements of husbandry of said sugar-plantation; as also all the furniture [and] old silver plate; also twenty-two hundred gallons of Tafr a, in the distillery aforesaid; also fifty-five thousand pounds of brown sugar lying on cisterns; also sixty-three bales of cotton (nine of which are damaged), weighing together twenty-three thousand one hundred and thirty pounds. All the above articles were sold separately, and cried by the public crier, with the exception of the sugar-plantation, which was sold, with the furniture thereof, as appears by the judicial sale, detailed and deposited in the clerk's office of the said parish of Assumption; and the whole, amounting together to the sum of eighty-four thousand seven hundred and fifty-five dollars and forty cents, was adjudicated for cash to Mr. Charles Saint Felix, who is satisfied therewith, for having seen, visited, received, and taken possession of same. And the aforesaid Nas. Girod and Jn. F. Girod, here present, declare, by the present act, that they have received from the said Charles Saint Felix the aforesaid sum of $84,755.40, for which acquittance is hereby given, and that they quitclaim and release him, and his heirs and assigns, of and from all claims and demands whatsoever.
'In testimony whereof, the aforesaid parties have signed the present judicial sale, the day and year first above written, in presence of the undersigned witnesses, and of the parish judge.
'Signed, per procuration of Nas. Girod, JN. F. GIROD.
JN. F. GIROD.
'Before me, J. CORVAISIER, Judge.'
On the 23d of February, 1814, by a similar deed to the above, Saint Felix conveyed the whole of the property to Nicholas Girod and Jean F. Girod, describing it in the language above quoted, and for the same consideration. The deed concludes in the following language:--
'All which articles, the said Saint Feli does, by these presents, retrocede to the said purchasers, Nas. Girod and Jean Fran ois Girod, for themselves, their heirs and assigns, without any reservation or reclamation whatever, for the price and sum of eighty-four thousand seven hundred and fifty-five dollars and forty cents, which the said vendor acknowledges, by these presents, to have received, in ready money, from the said purchasers, Nas. Girod and Jean Frs. Girod, and for which the present sale will operate as an acquittal and release against all and every person or persons whatever; the said Saint Felix herein declaring, that he is not bound to furnish the said purchasers with any other titles for the said lands and slaves, than those which have been given and delivered to him at the judicial sale aforesaid, and which he now delivers to said purchasers, who acknowledge to have received them, and to be satisfied therewith. Wherefore, the contracting parties agreeing both to these presents, have set their names to the same, the day and year aforewritten, in the presence of the undersigned witnesses, and of the parish judge aforesaid.
(Signed,) NAS. GIROD, per procuration.
JN. F. GIROD.
JN. F. GIROD.
'Witness,-(Signed,) J. COURRIE.
On the 4th of March, 1814, the following petition was presented, and order given for the sale of the property in New Orleans.
'To the Honorable James Pitot, Judge of the Court of Probates, the petition of Nicolas and Jean Fran ois Girod, testamentary executors of the late Claude Fran ois Girod, humbly showeth:
'That, in conformity with the order rendered by this honorable court, they have caused an inventory to be made by the register of said court of all the property left by the deceased in this parish, and amounting, according to the appraisement made thereof, to the sum of twenty thousand seven hundred dollars, being the amount of eight lots, and a piece of ground, situated in this city, at the corner of St. Louis and Chartres Streets, as the whole appears from said inventory deposited in the clerk's office of said court. Petitioners further show, that the succession of their late brother Claude Fran ois Girod is indebted in a sum of sixty thousand dollars, or thereabouts, being the amount of the legacies and debts left by the deceased, which it is necessary to pay without dealy. Wherefore petitioners pray this honorable court to order that the said piece of ground and eight lots be sold for cash, as also the said house, which, belonging in common to the succession and one of the petitioners, cannot be conveniently divided without loss or inconvenience to the owners; and petitioners further pray that the present petition be served upon the attorney appointed to represent the absent heirs, so that the law be complied with, and justice will be done.
(Signed,) N. GIROD, Mayor.'
Copied from the original in English.
'Let Mr. C. R. Caune, attorney appointed by the court to represent the absent heirs of said Claude Fran ois Girod, be notified to show cause why the prayer of this petition should not be granted.
(Signed,) JS. PITOT.
'New Orleans, March 3d, 1814.'
'As attorney representing the absent heirs of the said late Claude Fran ois Girod, I have no objections to the petitioners' demand.
(Signed,) R. CAUNE, Attorney for absent heirs.
'New Orleans, March 4th, 1814.'
'Let the sale be made as prayed for.
'New Orleans, March 5th, 1814.
(Signed,) JS. PITOT, Judge.'
On the 9th of April, 1814, a sale was made of the property in the city of New Orleans, in conformity with the above order, which was inventoried on the 26th of February, as appeared by the following paper.
'And on this ninth day of the month of April, in the year of our Lord one thousand eight hundred and fourteen, and of the independence of the United States of America the thirty-eighth, at the hour of ten, A. M., I, Jean Baptiste Marc Brierre, deputy register of wills for the city and parish of New Orleans, did repair to suburb Saint Mary, for the purpose of selling to the highest and last bidder the houses and lots belonging to the succession of the late Claude Francois Girod, and there being, we did find and meet with Mr. Nicolas Girod, one of the testamentary executors of the deceased, and Charles Robert Caune, attorney at law, appointed by the court to represent the absent heirs. Whereupon, in their presence, and in that of Prosper Prieur and Sebastian Blondeau, witnesses hereto required, I did proclaim the said sale in a loud and audible voice, and on the following terms and conditions, to wit:--
(The paper then enumerated the lots of ground, and concluded as follows.)
'And there remaining nothing else to be sold belonging to said succession, I, deputy register, aforesaid, closed and terminated the present process verbal. And after reading thereof, we ascertained the amount of said sale to be twenty-seven thousand seven hundred dollars, which sum was left by us in the hands of the said Nicolas Girod, testamentary executor aforesaid, who acknowledges the same, takes charge thereof, and has signed with the parties, the witnesses, and me, deputy register, the day, month, and year aforewritten.
R. CAUNE, Attorney.
N. GIROD, Testamentary Executor.
BRIERRE, Deputy Register'
On the 28th of April, 1814, Laignel conveyed to Nicholas Girod, as follows.
Sale of House and Lots from Simon Laignel to Nicholas Girod.
'Before me, Michel de Armas, a notary public, residing in New Orleans, State of Louisiana, United States of America, and in the presence of the witnesses hereinafter named and undersigned, personally appeared Mr. Simon Laignel, merchant, residing in suburb St. Mary, who has, by these presents, sold, transferred, and conveyed, from this day and for ever, with no other warranty than that of his own acts and deeds, unto Mr. Nicolas Girod, of this city, merchant, here present and accepting purchaser for himself, his heirs and assigns.
'1st. Six lots of ground,' &c., &c., enumerating the lots, and concluding as follows:-'To have and to hold said property unto the said purchaser, who may use, enjoy, and dispose of the same, in full and complete ownership, by virtue hereof. The property herein sold and described belong to the vendor, for having acquired the same at the public sale which the said Nicolas Girod, as testamentary executor of the late Claude Fran ois Girod, caused to be made on the 9th of April, instant, by the register of wills, of the property belonging to said Claude Fran ois Girod's succession, as the whole appears by the act of sale confirmatory of the adjudication aforesaid, passed before the notary undersigned on the 25th instant. By the certificate of the recorder of mortgages in this city, bearing even date herewith, it appears that there is no mortgage in the name of the vendor on the property herein bargained and sold.
'The present sale is made for and in consideration of the total sum of thirty-five thousand eight hundred dollars, which the said vendor acknowledges to have received cash, before the signing hereof, and out of the presence of the notary and witnesses undersigned, from the purchaser, to whom he grants full and ample acquittance and release of the same, renouncing the benefit of the exception, non numerata pecunia, and the two years' delay which the law accords to enforce said exception. Thus it was, &c., promising, obliging, renouncing, &c.
'Done and passed at New Orleans, in my office, in the presence of Messrs. Michel J. B. L. Fourcesy and Charles Robert Caune, both witnesses hereto required and domiciled in this city on the twenty-eighth of April, in the year eighteen hundred and fourteen, and of the independence of America the thirty-eighth; and the said appearers, notary, and witnesses, have signed these presents, after reading thereof.
(Signed,) N. GIROD,
MICH'L DE ARMAS, Not. Pub.'
The bill of the complainants in the court below also charged, that the executors, in order to appropriate, wickedly and fraudulently, to their own use and benefit, the funds of the succession, did, in their account of the 23d of May, 1817, place themselves as creditors of said succession for a sum of nearly forty-nine thousand dollars, to wit, said Nicholas Girod for forty thousand four hundred and eighteen dollars and nine cents, and said Jean Fran ois Girod for eight thousand two hundred and fifty-three dollars and twenty cents, although no sum was due to them.
The proceedings upon which this charge was founded are as follows:--'STATE OF LOUISIANA:
J. F. GIROD, Executor of C. F. Girod, and R. C. Caune, &c.
No. 604.-Parish court.
'To the Honorable James Pitot, Judge of the Parish Court for the Parish and City of New Orleans.
'The petition of Nicolas Girod, of the said city and parish, merchant, showeth, that Claude Francis Girod, of Lafourche, was indebted to your petitioner in a large sum of money, previous to his decease; that thereto annexed is a detailed account of the money due by his estate, at this time, to your petitioner; which account, amounting to the sum of forty thousand five hundred and seventy-seven dollars and twenty cents, principal [and] interest, the executors of the said Claude F. Girod has refused to pay, though thereto frequently required. Wherefore your petitioner prays, that John Francis Girod, now residing in the city of New Orleans aforesaid, one of the executors of the said Claude F. Girod, and R. C. Caune, the attorney appointed to represent the interest of the absent heirs, may be cited to appear and answer this petition.
'And your petitioner further prays, that they may be condemned to pay your petitioner the above sum of $40,577.20, with interest and costs.
'And your petitioner further prays all such other relief as the case may require, and to justice and equity many appertain.
'Received the annexed document, New Orleans, September 9th, 1816.
(Signed,) N. GIROD.
'A copy thereof being annexed to the award of the arbitrators in the premises.
'Mr. J. F. Girod, Executor of C. F. Girod, and C. R. Caune:
'You are hereby summoned to comply with the prayer of the annexed petition, or to file your answer thereto in writing with the clerk of the parish of Orleans, at his office at New Orleans, in ten days after the service hereof; and if you fail herein, judgment will be given against you by default.
'Witness the Honorable James Pitot, judge of the said court, this 26th day of November, in the year of our Lord
(Signed,) SAM. P. MOORE, Deputy Clerk.
'Served a copy of petition and citation on each [of] defendants, November 28th, 1814; returned November 28th, 1814.
J. H. HOLLAND, Deputy Sheriff.
'Answer of J. F. Girod, filed November 29th, 1814.
'To the Honorable James Pitot, Judge of the Court for the Parish and City of New Orleans, the answer of Jean F. Girod, one of the testamentary executors of the late C. F. Girod, to the petition of Nicholas Girod, humbly showeth:
'That all and singular the items in the accounts presented by said Nicholas Girod, in his said petition, must be proved, to justify his claim against the succession of C. F. Girod, and for that purpose this respondent prays this honorable court to order what shall seem the best for the common interest of parties, and moreover to be hence dismissed with costs. And, &c.
(Signed,) J. F. GIROD, Ex., Jr.
'Answer of R. Caune, filed November 29th, 1814.
'To the Honorable James Pitot, Judge of the Parish Court, the answer of C. R. Caune, in his capacity of attorney representing the absent heirs of the late C. F. Girod, to the petition presented by Nicholas Girod, against the estate of the late aforesaid C. F. Girod:
'Your respondent denies all faots mentioned in the plaintiff's petition, and he says that the plaintiff must be proven his claim before court, and prays the court to dismiss him, with costs of the suit; in duty bound, your petitioner shall ever pray.
(Signed,) R. CAUNE, Attorney.
'Order appointing Arbitrators, Parish Court for the Parish and City of New Orleans, November 27th, 1814.
'Present: the Honorable James Pitot.
'NICOLAS GIROD v. J. F. GIROD, Ex. of C. F. Girod, and C. R. Caune, attorney for the absent heirs.
'Upon motion of Alfred Hennen, esquire, of counsel for the plaintiff, it is ordered that F. Percy and F. M. Rouzan be appointed arbitrators in this case, to decide on the claim of the plaintiff, and in case of their not agreeing, that the court appoint a third person as umpire. I do hereby certify the above.
'In testimony whereof I have hereunto set my hand and affixed the seal of the said court at the city of New Orleans, the day and year first above written, and of the independence of the United States the thirty-ninth.
(Signed,) SAM. P. MOORE, Deputy Clerk (swearing).
'Personally appeared before me, one of the justices of the peace in and for the city and parish of New Orleans, Ferdinand Percy et F. M. Rouzan, of this city, who were duly sworn according to law as arbitrators as above named, that they will examine the accounts between the parties with impartiality, and give the report according to law.
(Signed,) F. MEFFER ROUZAN.
F. PERCY, Jun.
'Subscribed and sworn to before me, at New Orleans, the 10th day of December, 1814.
(Signed,) J. L. LAPANSE, Justice of the Peace.
'The undersigned arbitrators, appointed by a decree of the honorable the court of the city of New Orleans, under date of the 25th of November last, to verify and examine the accounts and demands of Nicolas Girod, a merchant residing in New Orleans, against the succession of the late Claude Fran ois Girod, his brother, who was a resident of the parish of Lafourche, in this State, said succession being represented by Jean Fran ois Girod, one of the testamentary executors thereof, and C. R. Caune, attorney for the absent heirs, and to make a report thereon to said honorable court, do declare, under the sanctity of the oath they have taken, on the tenth of December instant, and which is hereto annexed, that after hearing the parties interested in this affair, and the witnesses by them introduced, after being sworn by John L. Laparge, a justice of the peace in this city, they have proceeded to the examination and verification of the documents, titles, accounts, and books exhibited to them by the parties interested in the manner following, to wit:-First, they have examined the sworn account produced by Nicolas Girod, on the 25th of November last, which consists of thirteen items, which the arbitrators have verified in the manner following.
The first item, amounting in capital to $ 1,602 for
hides, which the said Nicolas had left in the stores
of Claude Francois Girod, is established by the
declaration of Jean Francois Girod, who affirms
positively that the said 801 hides had been left in
the stores of said Claude Francois Girod, who disposed
of the same for his private account ; the said Jean
Francois Girod declares likewise, that two dollars
was the price for hides in 1794, and that he himself
had purchased some at that price for his own account $ 1,602
The second item, amounting in capital to $ 1,500, is
the produce of an account which Mr. Pierre Bousignes,.................................................
then clerk of the house of Claude F. Girod, had
collected and paid in the hands of said Claude F.
Girod, as making part of the funds belonging to
Mr. Bousignes declared under oath,
that he does not remember the precise amount of
that sum, but that it must have been something
like fifteen hundred dollars ; he recollects that
that account was paid in before the fire of 1794,
and that several cash payments for the private
account of C. F. Girod were made out of the funds
belonging to said Nicolas Girod ... $ 1,500
The third item, amounting in capital to $ 6,222.18,
proceeds from the following remittances and effects,
to wit : Jean Francois Girod paid in specie to
Claude Francois Girod, Nicolas Girod's interest,
say two thirds in a shipment of furs made in March,
1795, on board the brig Jane, bound to Philadelphia,
and amounting to $ 3,593.37, as appears from a
copy-book or register, marked A, No. 40, written by
Guilhempan, and signed by the said Claude Francois
Girod, which book or register has been produced
by the said Jean Francois Girod, who further
declared, that the said Claude Francois Girod was
at that time authorized to settle the accounts of
Nicolas Girod with this deponent, and that the said
C. F. Girod has never rendered to Nicolas Girod an
account of this transaction ......... 2,395
For so much paid by Jean Francois Girod to said Claude
Francois Girod, for Nicolas's interest, say two
thirds in another shipment of furs made in April,
1795, on board the brig L'Archedimoi, bound to
Philadelphia, as appears from the aforementioned
copy-book or register, marked A, No. 40 . 432
For the amount of a barrel of wine, with which the
private account of said C. F. Girod was debited on
the 17th of October, 1795, but never since credited
with, as appears from the aforementioned copy-book
or register, ........................... 50
Amount of a bill of exchange drawn by Claude Francois
Girod, on the 7th of April, 1796, payable eight
days after sight, at New York, to his brother,
Nicolas Girod, for $ 2,000, which he had received
from Jean Francois Girod, for $2,000, which he had
received from Jean Francois Girod; said bill has
never been accepted or paid, as appears from the
bill itself, which has been exhibited to us by said
Nicolas Girod, ...................... 2,000
For the half of the amount of twenty-six barrels of
gunpowder, shipped in the month of April, 1796, on
board the ship The Two Friends, bound to New York, and consigned to Th. Thebane, by Jean Francois
Girod, on joint account with Nicolas Girod. The
proceeds whereof, amounting to $ 1,193.75, as
appears from the copy-book aforesaid, were received,
as also the profits of said Th. Thebane by the said
Claude Francois Girod, who never accounted for them
to the parties interested. This being established
by the declaration of said Jn. F. Girod, . $596
Amount of sundry merchandises belonging to Nicolas
Girod, and by Jean Francois Girod intrusted to
copy-book aforesaid, which was exhibited to us by
said Jean Francois Girod, who declared that Claude
merchandise to said Nicolas Girod, .... 210
Amount of sundry debts which Claude Francois Girod
had undertaken to collect for account of Nicolas
Girod, as appears from the statement produced by
Jean Francois Girod, and corroborated by the
aforesaid copy-book or register A, .... 476
Amount of a barrel of wine, sold to Mr. de Vangine,
by the said Jn. Francois Girod, which was paid to
said Claude Francois Girod, as is proven by a
written declaration of said Jn. F. Girod in said
copy-book or register, ................. 60
The 4th item, amounting in capital to $ 186, is
established by the declaration of Jean Francois
Girod, who affirms that it is within his knowledge
that the articles composing said item were delivered
to Claude Francois Girod, who shipped them for
Havana on his private account, ........ 186
The 5th item, amounting in capital to $ 651.50,
consists of the net proceeds of the sale made by
Claude Frs. Girod of 2 bales of blue drilling,
shipped for New York in 1801, on board of the ship
South Carolina, Stick, master, by Thibaut, for
account of Nicolas Girod, and consigned to Claude
F'ois Girod, as appears from book No. 1, which was
exhibited to the arbitrators, who ascertained that
it was in the handwriting of Guilhempan, then the
clerk and agent of C. F. Girod, ....... 651
The 6th item, amounting in capital to $ 299.06,
consists likewise of the net proceeds of the sale
of a cask of manna, shipped by Nicolas Girod when in
New York, in 1797, on board of schooner Despatch,
Clark, master, to the consignment of said Claude
Francois Girod, as the whole was made to appear
by copy-book No. 1, mentioned in the foregoing
article, ............................ $ 229
The 7th item, amounting in capital to $ 379.12,
consists of a lot of merchandise, consigned by
Jean Francois Girod to Claude Francois Girod, at
the time of said J'n F. Girod's departure for the
United States in 1797, which said merchandises
belonged to said Nicolas Girod, and were sold by
said Claude Francois Girod, as appears from a waste
or copy-book, in the handwriting of said Guilhempan,
marked B, No. 42, and produced by said Jean Francois
Girod, ................................ 379
The 8th item, amounting in capital to $ 813.82,
consists of the proceeds of the sale made by Claude
Frs. of divers merchandises belonging to Nicolas
Girod, which the latter had left in the hands of
Jean Francois Girod, who delivered them in kind to
Claude Francois Girod at the time of said J. F.
Girod's departure for the United States, in 1797 ;
said merchandises are enumerated in a copy or
waste-book in the handwriting of the late
Guilhempan, marked B, No. 41, and likewise produced
by the parties interested, ............ 813
The 9th item, amounting in capital to $ 899, consists
of the net proceeds of twelve barrels of wine
shipped by Nicolas Girod when in New York, 1797,
on board the brig Success, Dinsmore, master, to the
consignment of Claude Francois Girod, who sold the
same, as was shown by the sales-book No. 1,
aforesaid, ............................ 899
The 10th item, amounting in capital to $489.63, consists
also of the net proceeds of sale made by Claude
F'ois Girod, of 498 sextains of cards shipped by
N'as Girod when in New York, in 1797, on board of
the brig Success, Rathbone, master, to the
consignment of said Claude F'ois Girod, as was shown
by the sales-book No. 1, aforesaid, ... 489
The 11th item, amounting in capital to $ 991.38,
consists also of the net proceeds of the sale made
by C. F. Girod of 762 sextains of cards, shipped in
1795 by Nicolas Girod, then in New York, for his
account and risks, on board the schooner Active,
Wilcox, master, and consigned to said Claude Frs.
Girod, as appears from the sales-book No. 1,
aforesaid, ............................ 991
The 12th item, amounting in capital to the sum of $ 13,901.94, consists of divers lots of merchandises
and jewelry belonging to N. Girod, which the said
Claude Francois Girod sent into the provinces of
the interior, and there sold, or caused to be sold.
The accounts of those sales were never settled
between Claude Francois and Nicolas Girod, which
fact is attested by the declaration of Jean Francois
Girod, and several other witnesses, who testify that
Claude Frs. Girod has constantly avoided to render
said account. The several articles composing the
present item are enumerated and detailed in the
aforementioned sales-book No. 1, which the arbitrators
have ascertained to be in the handwriting of
Guilhempan, ....................... $13,901
The 13th item, amounting in capital to $6,574.30,
consists of the balance of an account between Nicolas
and Claude F. Girod, adjusted on 1st August,
1813, by Mr. Phillippon, jr., who was authorized
for that purpose by the said Claude F. Girod.
The arbitrators, after examining that account and
the one preceding it, are satisfied that the articles
mentioned in said accounts are foreign to the affairs
which existed between the said Nicolas and Claude
Frs. Girod, ......................... 6,574
Secondly. The arbitrators have examined and verified the account of interests also making part of the claims of said Nicolas Girod, as follows, viz.:--
Interests on $1,602, amount of the first item of the account produced by Nicolas Girod, from November, 1794, to the date hereof, making, in all, 20 years, at 6 per cent. per annum, $1,922
Interests on $1,500, amount of the 2d item, from the year 1794 to the date hereof, that is, 20 years, at 6 per cent. per annum, 1,800
Ditto, on $6,222.18, amount of the 3d item; the arbitrators have examined the eight parts whereof this item is composed, and found that the interests calculated on each part amounted to $7,087.92, wherefore they have been of opinion to leave the item as it was presented, 6,657
Ditto, on the $186, amount of the 4th item, from January, 1797, to this day, making 17 years, 10 months, at 6 per cent. per annum, 199
Ditto, on $651.50, amount of the 5th item. The arbitrators have reduced the amount claimed, to wit, $664.02, to $504.91, because the interests ought to have been calculated only from the 1st of January, 1802, when the 2 bales of drilling shipped by Thibaut, were sold;-this gives 12 years and 11 months, at 6 per cent. per annum, $504
Ditto, on $229.06, amount of the 6th item. The arbitrators have verified the calculation, which they have found correct, 233
Ditto, on $379.12, amount of the 7th item. The calculation was verified, and found correct, 382
Ditto, on $813.82, amount of the 8th item. The calculation was verified, and found correct, 817
Ditto, on $899, amount of the 9th item. The calculation was examined, and found correct, 876
Ditto, on $489.63, amount of the 10th item; after examination, found correct, 477
Interests on $991.38, amount of the 11th item; examined, and found correct, 996
Ditto, on $13,901.94, amount of the 12th item; examined, and found correct, 12,998
Ditto, on $6,574.30, amount of the 13th and last item of the account presented by Nicolas Girod. The arbitrators, after examining the calculation, found that it fell short of what it ought to have been, but as the difference is trifling, and in favor of the heirs, they left the item as it was presented, 493
Capital and interests due, after examination, $62,769
The arbitrators next proceeded to verify and examine the sums with which the said Nicolas Girod has credited the account he has produced, which sums amount, in capital and interests, to $22,351.89, and were found correct, 22,351
Balance in favor of Nicolas Girod, $40,418
'So that the balance in favor of Nicolas Girod is reduced to $40,418.09 instead of $40,579.20, as claimed in his account, this difference being produced by the reduction made on the interests of the 5th item of said account. The arbitrators, after having examined and heard the declarations of Messrs. Pre. Bousignes, M. Pacaud, Joseph Guillot, and Jean Fran ois Girod, witnesses introduced by the parties, and sworn by John S. Lapauze, a justice of the peace, who positively assert that Claude Fran ois Girod has always refused to settle his accounts with his brother, Nicolas Girod, and after a scrupulous examination of the books, accounts, titles, and other documents which were produced in this affair, are of opinion that the sum of forty thousand four hundred and eighteen dollars and nine cents, claimed by said Nicolas Girod, is lawfully due to him. In faith whereof, we have signed the present award, that it may have its legal effect given to it.
'New Orleans, this fourteenth day of the month of December, eighteen hundred and fourteen.
(Signed,) F. MEFFRE ROUZAN,
F. PERCY, JUN'R.'
'On this, the twelfth day of the month of December, 1814, in the thirty-ninth year of the independence of the United States of America, before me, one of the justices of the peace for the city and parish of New Orleans, personally appeared, as requested by the parties, Mr. Joseph Guillot, a witness in the case of Nicolas Girod v. Jean Fran ois Girod, one of the testamentary executors of the late Claude Fran ois Girod, and Charles Robert Caune, attorney for the absent heirs, who, being duly sworn according to law, declared and said, that he has always been a friend of the Girods, and that some time in the month of July, 1813, the late Claude Fran ois Girod, being in town, came to deponent's house, and requested him to call upon him in his room, saying that he had something to confide to him; and that having repaired thither, said Claude Francois Girod communicated his intentions of preventing all difficulties after his death, saying that he was desirous to settle with his brother Nicolas, that he had been to church, where he had knelt before the Holy Virgin, beseeching her to assist him in terminating his affairs with his said brother Nicolas; deponent, knowing nearly all their affairs, asked him in what manner he intended to settle them; then the said Claude Fran ois Girod told him,-Here are my propositions; I will sell my house in St. Louis Street for cash to my said brother Nicolas, with a view to settle with him, reserving, for the term of my natural life, the use of one of the back rooms of said house; and if there be any balance remaining due to him, he will grant me a delay to pay the same;-and he requested deponent to submit those propositions to Nicolas Girod's consideration, which deponent did; but the said Nicolas Girod answered him surely, No; and added, that he requested deponent not to interfere in that affair, saying that he himself had made proposals to Claude Francois Girod, his brother.
'Deponent further says, that he knows well that said affairs between Nicolas and Claude Francois Girod were never settled; and he has signed with us.
(Signed,) JN. FRS. GIROD, Test'y Executor.
R. CAUNE, Attorney for absent heirs.
'Sworn to and subscribed before me, at New Orleans, this 12th day of December, 1814.
(Signed,) JH. L. LAPANGE, Justice of the Peace.'
JEAN FRAN OIS GIROD, EX. of C. F. Girod, and C. R. CAUNE, Att'y, &c.
'Upon motion of Alfred Hennen, Esq., counsel for the plaintiff, and upon reading and filing the report of the arbitrators appointed in this case, it is ordered, that the defendants do show cause on Saturday next, the 17th instant, if any they have or can, why the said report should not be homologated, and made the judgment of this court in the premises.'
Sheriff's Return on Copy of the above Order.
'Served copy of the within order on each of the defendants, December 15th, 1814.
(Signed,) J. H. HOLLAND, Deputy Sheriff.'
'It is ordered, that the report of the arbitrators be homologated, and made the judgment of the court in this case, and that the said defendants do pay to plaintiff, in conformity to the said award, the sum of forty thousand four hundred and eighteen dollars and nine cents, with costs of suit to be taxed.
'New Orleans, May 6th, 1815.
(Signed,) J. PITOT, Judge.'
'I do hereby certify this to be a true copy of all the records, documents, and proceedings had in this case. Clerk's office of the Parish Court, New Orleans, January 10th, 1844.
(Signed,) ALFRED BODIN, Deputy Clerk.'
In the preceding March, Jean Fran ois Girod had brought in an account against the succession, and passed it through a similar process, which resulted in a judgment in his favor for the sum of $8,253.20.
The bill of the complainants in the court below then charged, that nearly all the coheirs, having full faith and confidence in the honesty and integrity of Nicholas and Jean Fran ois Girod, did intrust them with their powers of attorney, authorizing them to represent the interests of such coheirs in the settlement of the succession; in virtue of which the executors approved the account rendered by themselves. And that afterwards, by concealment of facts which they knew to exist, and were bound, as agents, to communicate, the said executors obtained from some of them an acquittance or transfer of all claims against the succession.
The bill then recited that Nicholas Girod had died, in possession of all the real estate of Claude Fran ois Girod except some parts which were mentioned as having been sold, all of which property thus remaining with Nicholas Girod the complainants claimed as the original coheirs of Claude Fran ois Girod, and also an account of the rents and profits. All claim against the other executor, Jean Fran ois Girod, was released.
Amongst the matters introduced in evidence was the following letter, which is inserted because it is referred to in the opinion of the court; and was sent by Girod at the same time that he obtained from his two sisters the receipts which are mentioned in another part of this statement.
'New Orleans, 27th May, 1817.
'My sister Quetend:-To-morrow, our brother Jean Fran ois embarks for Havre; from thence he will proceed home, for the purpose of delivering to each one of you what is coming to him from the succession of our late brother, Claude Fran ois. I assure you, that if I had not been anxious to protect the honor of this brother, every thing would have been absorbed in settlement of accounts with me, and by other debts; besides, whether you have it now or later, the greater part cannot escape you;-this is to be understood of those who shall not cease to merit our friendship and esteem. Beware not to imitate the example of Jacques, who has for ever lost our regard by his iniquities toward our whole family. Hereafter, when I shall have, in some measure, recovered from my losses by different bankrupts, I will send you some assistance from time to time. At present J. F. has orders to regulate his conduct towards you all by your conduct towards him. Farewell.
'I cordially embrace you all.
'Your brother and friend,
(Signed,) N. GIROD.
'I have not time to write to you more at length, having much to attend to before the departure of my brother.'
The original is indorsed:--
'Recorded in consular book G, page 94.
'Paris, 22d January, 1844.
(Signed,) LORENZO DRAPEZ, [SEAL.] Consul United States.'
Proved and admitted in evidence, April 29th, 1844.
On the 19th of January, 1830, Jean Fran ois Girod executed to his brother and co-executor, Nicholas, the following deed.
'On this nineteenth day of the month of January, of the year eighteen hundred and thirty, and of the independence of the United States of America the fifty-fourth, before me, Louis T. Caire, a notary public in and for the parish and city of New Orleans, duly commissioned and sworn, and in the presence of the witnesses hereinafter named and undersigned, personally appeared Mr. Jean Fran ois Girod, junior, residing at Paris, in the kingdom of France, and now in this city, herein acting for himself and in his own right, of the one part, and Mr. Nicolas Girod, his brother, residing in this city, and herein acting for himself, and in his own right, of the other part, who declared that they own, in common, for a moiety each, several landed properties, and, among others, a sugar-plantation, situated on Bayou Lafourche, parish of Assumption, in this State, which they have for several years cultivated as partners, the said Nicolas Girod having the exclusive administration of the same, and being clothed with the necessary powers to that effect; but that from the date hereof the partnership between them is amicably dissolved, by consent of both parties.
'And the said Jean Fran ois Girod moreover declared that he sells, abandons, transfers, and sets over, without any other warranty than that arising of his personal acts and deeds, but with substitution and subrogation to all the warranties which have been given to them by their original vendors, unto the said Nicolas Girod, his brother, here present, and accepting purchaser, for himself, his heirs and assigns:--
'1. The undivided moiety of a sugar-plantation, seven leagues distant from the River Mississippi, situate on Bayou Lafourche, in the parish of Assumption, as it now is, or may be, together with the undivided moiety of the improvements, slaves, animals, ameliorations, implements of husbandry, and all other objects or things whatever appertaining thereto.
'2. The undivided moiety of all the lands belonging to them in common, and situated on Bayou Lafourche.
'3. The undivided moiety of three islands lying at the mouth of said Bayou, and known as Timballier, Bross, and Caillon islands.
'The whole of which had been acquired, on joint account, by the said appearers, by purchase from the late Joseph St. Felix, as per act executed before F. Courvaisier, judge of the aforesaid parish of Assumption, on the eighteenth of February, eighteen hundred and fourteen, the said St. Felix had purchased the same at the judicial sale of the property belonging to the succession of the late Claude Francois Girod, who in his lifetime had acquired the same by purchase from divers persons; the said purchaser acknowledging that he is fully satisfied with the said titles, and declaring that he is well acquainted with the said plantation, lands, animals, slaves, and improvements, which are the subject-matter of this act, and requires nothing further.
'But it is well understood and agreed upon, by and between the parties hereto, that the sugar and molasses now on said plantation and in the sugar-house are not included in this sale, and that the net produce thereof shall be equally divided between the parties.
'And the said Jean Fran ois Girod moreover declared, that he also transfers and abandons, unto the said Nicolas Girod, his brother, all and singular the debts due to said plantation, as also all such sum or sums as now are, or may hereafter be, due to said partnership or community, under what title, and for what reason or reasons soever, hereby giving unto his said brother full power and authority to sue for and enforce the payment thereof, but without recourse against the transferer.
'The present sale and transfer of debts are made and accepted by the contracting parties for and in consideration of the price and sum of seventeen thousand dollars, in payment whereof the said purchaser, Nicolas Girod, has presently subscribed to the order of the said Jean Fran ois Girod, his brother, three promissory notes, each for a like sum of twenty-three thousand three hundred and thirty-three dollars thirty-three and one-third cents, the first payable on the first of March, eighteen hundred and thirty-one, the second on the first of March, eighteen hundred and thirty-two, and the third on the first of March, eighteen hundred and thirty-three, with power and faculty, however, to postpone the payment of said notes, or of parts thereof, from year to year, by paying to the said Jean Fran ois Girod, or to the holder of the notes the payment whereof shall have been postponed, a yearly interest, at the rate of eight per centum per annum, until final payment; which said notes, after being marked ne varietur by the notary undersigned, to identify them herewith, were handed over to the said Girod, who acknowledges the receipt thereof, and gives full and ample acquittance for the same.
'By means of the foregoing, but provided the aforesaid notes be paid, the said Jean Fran ois Girod transfers and abandons unto the said Nicolas Girod all the rights of ownership whatever which he had, has, or may have, in and to the plantation, lands, slaves, animals, implements of husbandry, in a word, in and to all the property which they owned in common, wishing that the said Nicolas Girod be seized of the same, and may enjoy, use, and dispose thereof, as of things to him well and lawfully belonging, from this day and for ever.
'And the said appearers have furthermore declared, that by act before G. R. Stringer, a notary in this city, bearing date the fifteenth of May, eighteen hundred and twenty-nine, Mr. Nicolas Girod, acting for himself, and in the name and with the consent of his brother, sold to Messrs. Abner Robinson and Benjamin Ballard a tract of land situated in the parish of Assumption, and belonging to the community aforesaid, for the price of fifteen thousand dollars, five thousand whereof were paid cash, and converted to the use of said sugar-plantation and other property; that the ten thousand dollars payable at one, two, and three years from the date of the act aforesaid belong to them for a moiety each, but that the said Jean Fran ois Girod assigns to Nicolas Girod his share of five thousand dollars in said debt, on condition that the latter shall credit his running account with a sum of twenty-five hundred dollars, as for money had and received, and without recourse to the assignor, who moreover transfers to said Nicolas Girod, without exception or reservation any, all the rights, actions, privileges, and mortgages accessory to the aforesaid debt of five thousand dollars, being the transferer's share in the price of the sale aforesaid.
'And the notary undersigned having made known to the parties hereto article 3,328 of the new civil code of Louisiana, which reads as follows:'-'Every notary who shall pass an act of sale, mortgage, or donation, of an immovable or slave, shall be bound to obtain from the office of mortgages of the place where the immovable is situated, or where the seller, debtor, or donor has his domicile, if it be of a slave, a certificate declaring the privileges or mortgages, which may be inscribed on the object of the contract, and to mention them in his act, under penalty of damages towards the party who may suffer by his neglect in that respect,' they, the said parties, declared, that, as tenants in common, they are fully aware of the state of things in relation to the immovables and slaves, object of this sale, and that they do hereby, jointly and separately, relieve and free the notary undersigned from all liability on that subject.
'Done and passed in my office, at New Orleans, the day, month, and year first above written, in the presence of Messrs. Charles Darcantel and Jose Antonio Bermudez, witnesses hereto required, and domiciled in this city, who have signed with the said appearers and me, notary, after reading hereof.
(Signed,) JN. FS. GIROD.
J. ANTONIO BERMUDEZ.
LOUIS T. CAIRE, Notary Public.'
About the 1st of September, 1840, Nicholas Cirod died, in New Orleans, leaving the following will:--
'Will of Nicolas Girod.-Filed 30th January, 1841.
'Ne varietur. New Orleans, 30th January, 1841.
(Signed,) J. BERMUDEZ, Judge.
A due bill to the Mayor of New Orleans, for the
sum of $100,000.00, to be employed in the
construction of a building called by the name of
"N. Girod," in the parish of Orleans, to receive
and come to the relief of the French orphans
inhabiting the State of Louisiana,.$100,000
A due bill to the treasurer of the Charity Hospital, $30,000
A due bill to the president of the Catholic Asylum, 30,000
No. 4. A due bill to Mrs. Bouvard, born Poidebard,
of Bordeaux,.... 100,000