Chronology of Court Cases, 1901-1908, and Related Events

Below is a beginning timeline of various events, legal actions, and court cases concerning the estate of Josephine Louise Newcomb (1816-1901). We are updating this as we go along. Please write to us if you would like to help us.

Quotes in italics are from the McConnell volumes of records and briefs and Google-scanned court records. For the structure of the NY courts, see here.

1. May 12, 1898: Josephine Louise Newcomb signs and dates a will in olographic form in New Orleans. In her will, she leaves small bequests to two friends and the bulk of her estate to Tulane University “for the present and future development of this department of the University known as the H. Sophie Newcomb Memorial College….” Tulane University attorney, James McConnell, who has advised her on writing the will, stores it for her for safekeeping in his safety deposit box.

  1. 1900, Newcomb v. Newcomb, 33 Misc. 191 (1900), 68 N.Y.S. (Supreme Court). 430 Special Term, New York County, New York.

Synopsis: Action by Josephine Louise Newcomb, as sole surviving trustee under the will of Warren Newcomb, against herself, individually, and others, to construe the will and for an accounting. Will construed, and decree ordered to be submitted in accordance therewith.

This had to do with Warren Newcomb’s death (in 1866) and some complaints by his relatives. The money in question, however, had not been distributed at the time of JLN’s death in 1901 and some $200,000 was held in New York, and thus, there, her relatives could (eventually) file a petition to have the will declared invalid. See below numbers 5-7.

  1. April 7, 1901: JLN dies in New York City.
  1. April 8, 1901: McConnell retrieves Mrs. Newcomb’s olographic will from his safety deposit box. Along with a witness to verify Mrs. Newcomb’s handwriting, McConnell goes to Civil District Court for the Parish of Orleans. He files a petition, attaching the will and an affidavit swearing to the facts of Mrs. Newcomb’s death, praying that letters testamentary be issued to Joseph A. Hincks and Brandt V. B. Dixon. The petition contains the usual language praying for the will to be received, filed, probated, recorded and executed. As required by law, Judge T. C. W. Ellis reads the will in a loud voice and then two in the McConnell contingent swear that the olographic will is in handwriting they confidently identify as that of Josephine Louise Newcomb. Judge Ellis then declares the will to be truly proved and the will is then recorded by being copied in the Court’s Will Book, and the original is deposited in safe storage in the Clerk’s Office. The Succession of Josephine Louise Newcomb is assigned the docket number of 64,692.

The clerk of court, acting with McConnell and others with him that day, create other documents that go along with the process of having the will “received, filed, probated, recorded and executed” (affidavits, petitions for the will to be filed and for the issuance of Testamentary Executorship, and others documents concerning the appointment of a notary and others to create an inventory of property of JLN). The will is rewritten in its entirety into a will book and given a docket number (64692). The clerk of court makes copies of the will and of other documents as requested by McConnell. At least one of the copies has to be certified by the Secretary of State of Louisiana.

  1. April 8-April 16, 1901: The other executor, Joseph Hincks is already in New York (with a form that he has brought from New Orleans that will enable him to be appointed executor), and on April 9, McConnell and Dixon take the train to join him, with all their own copies and forms in hand. Together, they go to the New York probate court to ask permission for Dixon and Hincks to begin work as executors. They must ask this in New York since her property (stocks, bonds, and one piece of property) are managed by her broker, there. On April 16, 1901, the NY Surrogate Court issues letters testamentary to Hincks and Dixon as executors of the will thus giving them permission to begin legal and financial steps in fulfilling the wishes of JLN in her will.

From the McConnell briefs: On the 8th of April, 1901, the day after Mrs. Newcomb died, this instrument was admitted to probate as her last will and testament in the civil district court for the parish of Orleans in the state of Louisiana, without notice to her heirs at law or next of kin, and letters testamentary were issued to the executors named therein, both of whom promptly qualified. On the 13th of April, 1901, upon their petition, ancillary letters testamentary were issued to said executors by the Surrogate’s Court of the county of New York, without notice to any one; but the Comptroller of the State voluntarily appeared and, waiving notice, consented that ancillary letters should be issued. The executors forthwith removed the bulk of the assets belonging to the estate from the state of New York to the state of Louisiana.

And from the Judgment Roll of 1907, Exhibit D, April 16, 1901, about the NY Surrogate Court recordkeeping: An exemplified copy of the will of Josephine Louise Newcomb, deceased, late of the city of New Orleans, State of Louisiana… and of the letters testamentary issued thereon to Joseph A. Hincks and Brandt V. B. Dixon, the executors named in said will, having been filed in this court on the 15th day of April, 1901…and it appearing to the Surrogate that the said deceased died leaving personal property within the County and State of New York… that there are no creditors or persons claiming to be creditors…. And the Deputy Comptroller of the State of New York having duly waived the issuance and service of a citation and having duly consented that said ancillary letters testamentary issue…. Ordered, adjudged and decreed that…. Ancillary letters on said will issue to the said … Hincks and … Dixon….

  1. July 1, 1901: In Re Newcomb’s Estate, 35 Mis. 589, NY. Sur.

The nephews and niece (the Hendersons) file a petition to “obtain letters of administration upon the goods, chattels and credits” of their aunt.

  1. February 7, 1902, the Hendersons are given permission to “institute upon proper papers, a proceeding for the revocation of the alleged ancillary letters testamentary… and for the annulment of the will.”
  1. April 3, 1902: The Clerk of Court places a notice of the Hendersons’ petition in various newspapers and also sends this notice to all named in the will. Anyone who objects to the petition must appear in court and [from the 1907 Judgment Roll] “show cause why such a decree [declaring will invalid] should not be made …on the sixth day of June, 1902.

From the McConnell briefs: …the heirs at law and next of kin of Mrs. Newcomb, being nephews and nieces and grand nephews and nieces, four of whom resided in Louisville, Ky., and two in New Orleans, upon their petition setting forth facts tending to show that the decedent resided in the city of New York at the date of her death, that she was not of sound mind, that she was subject to undue influence when she signed said instrument, and that a olographic will cannot be set aside on account of undue influence in the state of Louisiana, procured an order from the Surrogate’s Court of the county of New York requiring the executors to show cause why the ancillary letters testamentary should not be revoked and vacated. A citation was issued, and in due course of procedure an answer was filed by one of the executors, raising, among other issues, the question whether Mrs. Newcomb, at the time of her death, resided and had her domicile in the city of New York or in the city of New Orleans.

  1. April 8, 1902: Proceedings of the Hendersons for the revocation of ancillary letters begins.

From the McConnell briefs: This proceeding for the revocation of ancillary letters testamentary which were issued from the Surrogates’ Court of New York county, on April 16th, 1901, to Brandt V. B. Dixon and Joseph A. Hincks, was commenced by the filing on April 8th, 1902, of a petition of William H. Henderson, Howard L. Henderson, Victorine S. McCarthy, William V. Henderson, Silas M. Henderson, son, and Elizabeth B. Henderson as ancillary guardian of Marguerite E. Henderson, an infant.

  1. July 16, 1902: Robert E. Deyo appointed referee for the Surrogate Court.

From the McConnell volumes: Robert E. Deyo, Esq., appointed referee to hear the evidence relating to said issue and report the same with his opinion.

  1. March 30, 1903: Order Extending Time of Commission so that more testimony may be gathered in New Orleans. To do so, New Orleanian attorney George Walshe is appointed.

From the 1907 judgment roll: Ordered that an open commission issue in the above entitled proceeding directed to George C. Walsh….to examine on oath … [and to question] several witnesses by counsel for the respective parties….Ordered that the testimony of each of the witnesses be taken down by Said George C. Walshe or by a disinterested stenographer in his presence, and promptly reduced to typewritten form, and that such typewritten transcript of the testimony of each witness when completed, be signed and sworn to be such witness….

  1. September 1902-February 1904: Gathering of evidence.

From McConnell Briefs: Between 700 and 800 requests to find were presented to the referee and the surrogate, all of which were duly passed upon, and exceptions were filed by the respective parties to such findings as they considered unwarranted by the evidence or by law.

  1. March 1904 to March 27, 1905: Deyo reviews all evidence and testimonies.

He issues “Opinion of Robert E. Deyo, Referee,” Surrogate’s Court, County of New York, “In the Matter of an Application for the Revocation of Ancillary Letters Testamentary Granted in the Matter of the Estate of Josephine Louise Newcomb, Deceased.”

From McConnell briefs describing Deyo’s opinion: That the residence or domicile of Josephine Louise Newcomb, deceased, at the time of her death, was in the city of New Orleans, in the state of Louisiana.

  1. April 1, 1905: Deyo completes all his filing.

From the Judgment Roll: The referee on the 1st day of April, 1905, filed in the Surrogates’ Court the testimony and other evidence taken by him, together with his opinion, report and findings.

Deyo listed 121 points he addressed to answer the petition of the Hendersons, and 196 points, addressed to answer the replies of Dixon, the executor of the will. Within these points are quotes from more than 100 letters. There are many supplemental points also listed.

From the Judgment Roll: And the said report, opinion, findings of fact and conclusions of law, testimony and other evidence, having been thereafter submitted to this Court….

  1. July 13, 1905: Materials go to Surrogate Court Judge Fitzgerald.

From McConnell briefs: Deyo’s opinion then went to Surrogate Court, where it was heard on 13 July 1905, before Hon. Frank T. Fitzgerald.

  1. January 23, 1906: Judge Fitzgerald denies the petition of the Hendersons.

From McConnell briefs: There is “a motion to confirm the Referee’s report.”

From the Judgment Roll: …. And the Surrogate having duly made and filed his decision containing matters and findings of fact and conclusions of law, dated the 23rd day of January, 1906.

From the McConnell Briefs: A decree of confirmation was issued by the Surrogate Court.

From the 1908 Judgment Roll about this 1906 confirmation: The surrogate confirmed all the findings of fact and law made by the referee, adopted his opinion, and also found specifically: That Josephine Louise Newcomb, the decedent, was, prior to and at all times since the death of her husband and daughter down to the time of her own death, in all respects, competent to select, change, acquire, and establish a legal and valid domicile or residence; that previously to the time of her death the said Josephine Louise Newcomb had voluntarily, and without compulsion or restraint exercised upon her, selected and adopted the city of New Orleans, in the state of Louisiana, as her domicile and place of permanent abode and residence, and continued to there reside and have her domicile and permanent place of residence and abode down to and at the time of her death. He dismissed the application for the revocation of ancillary letters testamentary, and a decree was entered accordingly.

  1. July 10, 1906: Hendersons appeal to the Appellate Court.

From McConnell’ briefs: Notice of appeal by all the petitioners was served and filed.

  1. July 10, 1906, and weeks after: Judgment roll and testimony and evidence compiled and sent to various people in the Appellate Court and among the parties to the legal proceedings, as well as to various libraries.
  1. December 20, 1907: Appellate Court affirmed Surrogate Court decision. This decision was made available in the NYS reporter (122 A.D. 920, 107; N.Y.S. 1139, N.Y.A. D. 1 Dept., Dec. 20, 1907).

From McConnell brief: Petitioners hereby appeal to the Court of Appeals of the State of New York from an order entered herein in the office of the Clerk of the Appellate Division of the Supreme Court of the State of New York, First Department, on the 20th day of December, 1907, which affirmed a decree of the Surrogates’ Court of the County of New York entered in said Surrogates’ Court on the 10th day of June 1906. Appeal denied.

  1. February 18, 1908: Notice to Court of Appeals.

From the Judgment Roll (1908): Petitioners appeal to the Court of Appeals…from an order entered herein in the office of the Clerk of the Appellate Division of the Supreme Court of the State of New York, First Department, on the 20th day of December, 1907….

  1. March 10, 1908: Affidavit of No Opinion submitted to Court of Appeals, saying that Appellate Court affirmed the decision of Surrogate Court.
  1. March 12, 1908: Stipulation Waiving Certification, signed by the attorneys from both sides. This allowed all the materials made for the Surrogate Court’s hearings and Appellate Court’s hearings to move to the Court of Appeals.

That the copies of the notices of appeal, papers, orders and decree herein, and of the case and exceptions herein, together with the order settling the same, all comprising volumes I, II, III and IV of this record, are true copies thereof and of the whole thereof respectively, as the same are filed in the office of the Clerk of the Surrogates’ Court of the Count of New York or of the Clerk of the Supreme Court in and for the County of New York, and that certification thereof pursuant to Section 1315 of the Code of Civil Procedure be and the same hereby is waived.

  1. May 19, 1908: In re Newcomb’s Estate, 192 N.Y. 238, or, 84 N.E. 950 (NY 1908). Court of Appeals affirms lower courts’ findings.

Appeal denied. The order of the Appellate Division should be affirmed, with costs.

  1. Sometime soon after May 19, 1908: The Clerk of Court adds pages at the end of the judgment roll (pages 749-753) noting the Court of Appeal’s affirmation, and distributes these updated volumes to various libraries and other clerks of court.

Then, after the trial, on October 22, 1908: McConnell gives his briefs, twelve volumes among some 950 other books to Tulane Law Library. Then, in 1967, the descendants of McConnell give their family papers to Tulane University Library’s Special Collections. The family papers contain the JLN letters that did not pertain directly to the court case. They are transcribed and edited here on this website.




*We will provide more complete citations to all quotations at a later date. We are working with various volumes of the judgment rolls, testimonies and evidence, as well as the opinions. Some of these have been scanned and are available on GoogleBooks. The Surrogate Court (in NY, the lower court) had a practice of binding the record (judgment rolls, and testimonies and evidence) to send on to the appellate court, and that court had a practice of binding again to send on the Court of Appeals. By law, a certain number of copies had to go to specific libraries (as well as courthouses in New York). The copies now in GoogleBooks are scanned from the New York City Bar Association. We also quote from pages in volumes of briefs from McConnell, now in Tulane University Law Library. He bound his books for his own ease in working in New York and brought his copies back to New Orleans.

Return here to the Overview of the Letters.

For a longer overview of these passages of court records, see also on this website, here.