An Expanded View of Legal and Archival Recordkeeping Surrounding the Letters
The letters discussed on this website are available to us today through two different strands of recordkeeping—the one dictated by law, and the other by custom. The court case letters appeared in legal proceedings held in the New York court system during 1901-1908.[1] They are copies of handwritten ones, becoming court records when transcribed by a court stenographer. The originals were returned to those who provided them and, as far as we can tell, do not exist today. The other letters, called here the McConnell letters, were irrelevant to the cases presented in the court system but retained by Tulane University lawyer James McConnell, Sr. These letters ended up in his family papers. They did not become copies until we transcribed them here.
For both sets of letters, their presence amidst other materials allowed their survival. For the court case letters, their continued existence depended on rules of courts in New Orleans and New York, people in charge of court materials, the buildings, the institutions, families, and structures that held them. For the private papers, their continued existence depended on the practices of the office McConnell headed and then after he left practice and died, others who followed him, as attorneys and as family members. This section of the website addresses some of these factors in their survival via an exploration of how the court case unfolded, and how a few of the many records related to the case were created and retained.
Recordkeeping in the Court Systems
The creation of the collective body of court materials that we use today to know the life of JLN began at her death in 1901, and the almost immediate announcement that, by her will, the bulk of her estate was designated for the college established in her daughter’s name, the H. Sophie Newcomb Memorial College. Nothing was left to her sister’s children and they were incensed. With the help of attorneys, they eventually rephrased their sentiments into three points: that their aunt’s legal domicile at the time of writing a will in 1898 was New York and not New Orleans (thus a will written in the southern city was invalid), that she was “not of sound mind” when she made this will, and that in making it she was unduly influenced by Tulane University administrators.[1]
In gathering materials to prove or disprove these points, the petitioners and the defendants went backwards to JLN’s birth and the lives of her family members—their baptismal, marriage, and burial records. They went forward via testimonies from friends and letters she had written from that early nineteenth century time, traversing with JLN from Baltimore to New Orleans, to Kentucky, to New York, Paris, Havana, and many little country spots, visions of some even visible yet to us on the letterheads of the stationery in the McConnell letters. In the items gathered, we come through many passages of her life between 1866 and her death in 1901 (her daughter’s schooling, her purchase of material for clothes, her religious preoccupations, her desires to remember those who had died, her unhappiness with lodgings, her books saved and discarded). Then in the years leading through three court proceedings and filing of documents in New Orleans and New York, we have seven years of forms completed, testimonies written down, letters copied over, and much more, eventually all typed out and printed in at least thirteen volumes by 1908. We have testimonies, affidavits, commissions, orders, decrees, and other legal processes (within some 3,000 pages).[2]
One instigating moment in the creation of these materials came humbly as a single document, filled out in the room where JLN died in the New York home of her friends, the Chamberlains (see section on Correspondents here). There, completing the New York state death certificate was her doctor, Francis Scratchley (also in the Correspondents section). He listed time of death as seven in the morning on April 7, 1901, Easter Sunday.
In terms of recordkeeping history, the form was relatively new. Not until 1881 had statewide registration of deaths, begun.[3] Scratchley listed as cause of death “exhaustion following senile decay with consequent organ changes.”[4] This particular cause does not appear on the 191 possible causes of death on the state-required International List of Cause of Death (Revision 1) from 1900. Then, as even now, physicians didn’t always familiarize themselves with the list, though it would seem that Old Age would have been an easy enough category to remember.[5] Greenwood Cemetery officials, as early as the next day, would fill out another form and list “senility” as her cause of death.[6] This may have been the interpretation of the undertaker, noted on the cemetery form, but it may have been that senility was simply another way of saying old age. The Hendersons bypassed the death certificate and cause of death to support their claim that she was not of sound mind. This seems to indicate that her death was attributed to the deterioration of her physical strength rather than her mental abilities. JLN had been in poor physical health for many years.[7]
Her many letters show that she possessed a strong and capable mind right until her final months in 1901, not senile, as we today would interpret the term. And as her friend Ida Richardson testified, JLN knew what she was doing, planning even that her death would not be announced until the morning of her funeral.[8]
The death certificate had a blank for place of residence. Scratchley, as he would later testify, did not provide this information. JLN’s companion, Walter Callender, a man almost always noted as being some thirty years her junior, did, taking the form and adding New Orleans.[9] This would be very important later and Callender likely knew it was even immediately in terms of the will having been written in New Orleans. At the bedside was also her cousin, Joseph Anatole Hincks (a Tulane administrator) who then telegraphed Tulane’s attorney James McConnell about the death.[10]
After the telegraph, McConnell went to his safety deposit box and took out JLN’s will. She had trusted his advice in 1898 when she handwrote it, and also welcomed his willingness to keep it in New Orleans.[11] The next day (Monday, April 8, 1901), he had it in hand to present at the Civil District Court, then housed in the Presbytère that stood on the down river side of St. Louis Cathedral.
Built during the years 1798 to 1813, and since 1834, operating as a courthouse, the Presbytère was a storied building with many connections to court records and indeed all the records of the state. By the early twentieth century, McConnell and others would have known their way down improvised pathways to the Clerk of Court’s office. At least the odors complained about in summer visits there would not have been as noxious. That April morning was a rather cool one with temperatures in the 50s in the morning and rising to the 70s during the day.[12]
In the Clerk of Court’s office and in the courtroom of Judge T. C. W. Ellis, McConnell had four people with him: his son, James McConnell, Jr, also an attorney; Brandt V. B. Dixon, president of Newcomb College; Frederick Wespy, Newcomb College Greek and German professor; and J. C. Morris, a Tulane Board member. McConnell, Sr. had advised JLN to appoint local executors, those living in New Orleans. Dixon was one, and Hincks was the other.[13] Recall that Hincks was in New York. He had been called there a week before when JLN’s death was thought imminent. Dixon and Morris filled out an affidavit form to have the death certified, perhaps with the added submission of Hincks’ telegram.[14] Dixon presented the will, and McConnell, Jr., and Professor Wespy swore that it was in the handwriting of JLN. Both said they had “often seen her write and sign during her lifetime.” Judge Ellis read the will “in a loud voice” and declared “the said olographic last will and testament to be duly proved and ordered the same to be deposited and recorded in the office of the clerk of the Civil District Court for the Parish of Orleans.”[15]
The clerk of the New Orleans court rewrote the will in volume 29 of the Will Book. He assigned it docket number 64692, and filed the original. Thus the will was considered “received, filed, probated, recorded, and executed.”[16] At some point, either before filing the original or after, the clerk also made a copy for McConnell. Other forms were filled out as well, especially those honoring the appointment of Hincks and Dixon as executors. Yet more would be added later, and filed under the same docket number 64692, but for that Monday morning they had done all they could do.
Meanwhile, by law, notice also had to be given in newspapers for three days. This was done first in the New Orleans Item of the same day, the late edition. In a column on page 3 labeled “Civil District Court, New Proceedings,” the “Succession of Mrs. Josephine Louise Newcomb, James McConnell” appeared among eighteen other listings for successions, divorces, and sales. Not obligatory but newsworthy, some unsigned journalist copied the whole of JLN’s will in another section of the paper under the headlines: MRS. NEWCOMB’S WILL. The Sophie Newcomb College the principal beneficiary—Tulane Administrators will be Trustees.[17]
The next day, Tuesday, John T. Michel, “Secretary of State of the State of Louisiana and custodian of the seal of State,” signed his name to a form that said the will McConnell held now in copied form was “an exemplified copy … duly authenticated.” The form indicates it was signed in Baton Rouge, and McConnell later testified that he had “ordered [it] at once” and “used all dispatch to have it in hand as soon as possible because such a copy would be needed if the appointment of the executors would be accepted “for use in another state.”[18] We do not know if there was an office kept in New Orleans for such matters that would have come up regularly or if one of the parties traveled by train or car the two hours or more up to the state capital, but McConnell’s note of urgency is significant.[19]
On Monday, Hincks also had work to do in New York. He arranged the funeral according to JLN’s instructions inviting no one, and he also presented a printed form reading “State of Louisiana, Civil District Court for the Parish of Orleans” with blanks to a New York notary. He and the notary completed the form so that he could be one step closer to taking up his duties as executor. It would eventually have to be returned to the New Orleans court and signed there, as well. But it is dated and signed first in New York on April 8, and so we know then that he brought it with him. The Tulane administrators had all in order since JLN had always feared something would happen to prevent her wishes.[20]
Also on Tuesday and again on Wednesday and Thursday, newspaper postings and articles appeared, with one article in New York. These articles went into some of the details of the legal filing of the will on Monday while adding the possibility that the Henderson heirs would contest the will. We know from the newspaper articles, also, that McConnell and Dixon left New Orleans by train on Wednesday.[21] They had in hand the copied will and the form appointing Dixon one of the executors.
By Friday, the New Orleans contingent presented themselves, the authenticated copy of the will, and other materials at the Surrogate Court for the County of New York, then located in what was called either the Old New York County Courthouse or the Tweed Courthouse.[22] McConnell asked that “letters testamentary” be issued to Dixon and Hincks. They asked, in other words, that they be given the legal authority to act, especially in overseeing the transfer of the principal part of JLN’s legacy in stocks, bonds, and other financial instruments to Tulane University for the college founded in her daughter’s name. On the 16th of April, the NY court directed that this be done.[23]
But nothing quick was to take place. By May, the Hendersons were gathering information. One can tell this by looking at the date supplied by the church registrar of whom the Hendersons asked for various baptismal, marriage, and burial information showing the relationship of their mother to JLN. His registrar’s seal and his signature later become part of the court record.[24] By July 1, the Hendersons had petitioned “to obtain letters of administration upon the goods, chattels and credits” of their aunt.[25] By February 7, 1902, they were 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.”[26] Money could not then flow yet to the University for the College, or to the others named in the will.
The Hendersons’ petition initiated many more processes, creating many more materials, requiring an extended period for gathering all. This began in the same NY court where McConnell and his party had come in early April, the Surrogate court. On July 16, 1902, that court appointed attorney Robert E. Deyo to serve as a referee, that is, in the capacity of a judge. Such appointments were made when a particular case required extensive amounts of time.[27] Deyo was charged with reading testimonies and evidence gathered by the two sides, the New York lawyers for the Hendersons (Rollins & Rollins in New York), and, for the estate defending the will (Wilmer & Canfield). Deyo was to gather information within a few months, but by May 21, 1903 there was an Order Extending Time of Commission, since both parties agreed that more time was needed to take testimony in New Orleans.[28]
Deyo would stay in New York, but the Surrogate Court judge appointed an attorney in New Orleans, George C. Walshe, to hear testimonies with the aid of a “disinterested stenographer.” This stenographer should have the testimonies “promptly reduced to typewritten form.” If the witnesses had evidence with them, letters often, that too would be copied by hand and then typed. “[S]uch transcript of the testimony … when completed” was to be signed and sworn to “by the witness.” The letters and other documents copied over and typed were likewise sworn to be the same as the handwritten ones they had in their possession.[29] Walshe and the stenographer probably worked in the overcrowded Presbytère, and certainly worked from September 1902 to February 1904, the dates that appear in the Index to the evidence.[30]
On March 27, 1905, Deyo gave his report finding that JLN was competent to declare her own residence as New Orleans and had done so. On January 23, 1906, Surrogate Judge Fitzgerald agreed with Deyo’s report and provided his Conclusions of Law and Decree denying the petition of the Hendersons. JLN was competent to choose her legal residence.[31]
The various documents, evidence, and materials gathered by Deyo (affidavits, citations, commissions, notices, services, petitions, proofs, statements, stipulations, testimonies, and exhibits) were then filed in the Surrogate Court. As to where and how filed, as far as can be told from the perspectives of todays’ archivists at the Surrogate Court and the State Archives, this meant that all probate records were kept together but other records, were filed separately. The Surrogate Court didn’t start using file numbers for cases until June 1920. Any orders involving the estate were kept in a record group called “Orders”; Letters Testamentary were all housed together; Affidavits, all together and so forth. The records could have been filed all over the Tweed Courthouse, or they could have been kept together in anticipation of an appeal.[32] Somewhere were the original stenographic transcripts, which, by the Code of Civil Procedure in New York, had to be kept for two years.[33]
In July 1906, the Hendersons appealed. This most likely meant a gathering of the records from the disparate locations in the Surrogate’s Court, all the material that Deyo had caused to be created, that the lawyers on both sides and their witnesses had created, and a reorganization of them in a specific order to be printed and then for those volumes (judgment roll and testimony and evidence ) to be delivered to the Appellate Court, First Department. Copies had to be distributed to the clerk of court and judges of the intermediary court, in the majestic Beaux Arts building at 27 Madison Avenue, at East 25th Street. Copies were also distributed to all the attorneys involved, as well as the petitioners and the appellants, and to a few libraries, which by law, served as designated repositories for such materials.[34] These repositories were each branch of the library of the Court of Appeals, one copy to the library of the NY Law institute, one copy to the Law Library of Brooklyn, one copy to the Law Library of the eight judicial districts, and one copy to the reporter.[35]
On December 20, 1907, the Appellate Division, First Department, affirmed the Surrogate’s Court decision: “No opinion. Decree affirmed, with costs, Order filed.” This decision was made available in the NYS reporter (122 A.D. 920, 107 N.Y.S. 1139).
The Hendersons appealed again, this time to the highest NY court, the Court of Appeals. So there were more copies distributed, a whole new set of volumes moving up to Albany, and importantly rules over where each copy of the judgment roll and evidence bound together should go. On May 19, 1908, the decision was the same. The higher court affirmed the findings of the intermediary court.
Placing this Trajectory and These Steps into an Archival Framework
To place all these steps into an archival framework we can look briefly at the large judgment roll (over 700 pages), and the small but significant will of three pages. The judgment roll of the Court of Appeals, NY’s highest court, when completed, was longer by just a few pages than that of the Appellate Court. At the end of the Court of Appeals’ Index, sometime after the May 19 decision, the clerk of court inserted “page iva” to the judgment roll volume, listing “Papers subsequent to appeal to Appellate Division.” Below that are headings and page numbers for the additional materials: Notice of Appeal to Court of Appeals, 749; Order of Affirmance by Appellate Division, 751; Affidavit of No Opinion, 752; Stipulation waiving Certification, 753. This judgment roll and the three volumes of testimonies and evidence were then also distributed (in this new version) to the same libraries as the earlier volumes of the intermediate court had been. In this economy of so few additional pages and in distribution of copies, the court system was being practical.
The judgment roll, volume one in the set of so many materials, contained “the original claim and all amendments and supplemental claims and other pleadings, certified copy of the final order or judgment.” It was, according to state practice, “filed in a suitable place in the office of the clerk.” It was important that others had access to it, immediately for the proceedings but later as precedent.[36]
A judgment roll as a record has a specific form, content, and context, as well as an archival history. It is linked to the more general manuscript term of a roll. The Society of American Archivists’ dictionary gives five possible definitions to a roll, the fourth of which is “a record of official proceedings.” The glossary further explains that “a roll is frequently made up of several pieces of parchment or paper that attach at the edges to make a long, continuous strip.” Merriam-Webster simplifies this archival definition by writing that a roll is a parchment roll or a book containing a record of the proceedings and judgment of a case in a court of law.
In twelfth-century England, the first rollus were financial documents of the Exchequer. They were made of two membranes of parchment stitched together to form a length of a little more than two yards. When a year was over, all the rolls were stacked up and secured at the heads with cords. One could flip through the lower ends, making retrieving documents much easier than with a continuous roll. The law courts modified this method of recordkeeping such that by 1190, only one membrane of parchment went into the making of their plea rolls, and then stitching them together on some regular basis. In short, the roll as a form lasted because it was practical, and the name continued to be used for compiled documents.[37]
Within the Newcomb judgment roll, the will was one of the centerpieces of the trial and like the evolution of the larger form, a will is a practical document. A will can have a long definition involving mention of beneficiaries, legatees, devisees, percentages, gifts, executors, codicils, trusts, and the need or not for probate and much more. Most definitions also mention signing and dating by both the testator and witnesses. The fact that not all states of the US honor a holographic will is also often mentioned in such definition,[38] The archival definition is more compact: A will is a document giving instructions on how an individual’s property is to be disposed of after the individual’s death.[39]
Wills have a very long history. The testamentary part (“my will and testament”) is tied to property other than land, to inheritance, to religion, and to individuality. Does one have the right to own something in such a way that one can decide upon the person or group to whom one’s ownership should extend? And, the important question both to JLN’s will and to archival history and theory in general, did a will have to be written down and if so, how, and where was it kept and by whom? The early Romans thought a will could be stated aloud to seven witnesses, but this soon proved too difficult. Memory was too faulty, hence the written will. The Greeks also sometimes read their written wills aloud before magistrates and even the Archons. Where and how were wills kept before death or even after death? Not much is known about that, though historian of ancient archives, Ernest Posner, mentioned that the Greek city states allowed wills to be stored for security reasons in archives even before the death of the testator.[40]
The Romans had many rules about wills, and much of their legal tradition in this regard as in others came down to the English. There were legislation and court rules focused on who could be left what, who should be involved in the reading of a will, the filing, but almost nothing specific about where or how wills were filed, who used them after filings, and in general the archival processes that old wills came to experience.[41]
The writing of wills as opposed to a verbal declaration of inheritance was clearly important to their lasting as documents. While written wills were often used by large landowners, one significant step in English inheritance history came when average people also began to have access to pen and paper for recording their legacies. M.T. Clancy tells us that between 1258 and 1290, in just one generation, wills in England went from an essentially oral act, dependent on witnesses, to a closed and sealed document. “The witnesses no longer heard” the person’s voice; “instead they saw his seal being placed on the document…. The validity of the will” came to be dependent on being in its “correct documentary form.”[42] As for other documents during this period of change from an oral to a written culture, scribes were sometimes employed to write wills. But Clancy also wrote of a particular thirteenth century will dictated by a father and handwritten by his son. The main purpose of a will in this case was a more intimate and personal one than the disposition of property alone. Wills attested to the “testator’s state of grace at death.”[43] When English law came over to the colonies in North America, such practices followed. Legal historians believe that many people knew about wills, how to frame them, and how to work with the courts to have them read and then filed. In the US, laws governing succession came to vary by state and change over time, and so did wills.[44]
In many ways, a will stands as a link between an individual, his or her past, and some future of his or her wishes living on. It is often the most prized record by genealogists especially if accompanied by an inventory of property, the worldly goods that surrounded a life. The inventory is probably more telling than a will but a will has a more consistent presence in imaginative works such as novels, films, and poems.
In terms of the form of a will, many begin with the same words used by JLN: “Aware as I am of the uncertainty of life, I….do make this my last will and testament.”[45] The use of “uncertainty” seems somewhat surprising given that we know we will die. On the other hand, these and other words in wills negate our ineffectuality as people on earth such a short time. We comfort ourselves in leaving something behind, we come to the same medieval need for a state of grace noted by Clancy.[46]
In civil law that prevailed in Louisiana, a handwritten will, was preferred.[47] McConnell wrote JLN’s cousin Joseph Hincks of that consideration on March 21, 1898 a few months before she wrote her last will. With Hincks arranging a meeting, McConnell gave her the requirements and offered his willingness to help. Since no witnesses were needed, it could be kept in private.[48] It is interesting to think of JLN’s consideration of this. Her earlier wills were not written in Louisiana.[49] Yet the holographic will, what Louisianans consistently called an olographic will, matches her temperament and habits. She was always worried about betrayal, and privacy, and she was an educated and frequent writer of letters, not just family ones, but also ones of business; she was a letter writer. In her holographic will (as we call it today), she used these skills and demonstrated her power and practicality, a characteristic she always admired.
We can look at the use of the will and ask about its status as a record. First we might ask how it moves from an active status (used in probate and in the lengthy hearings) to one of deposit and later, comes to sit on a shelf in an archives. We can see the movement in JLN’s will, its being removed from the safety deposit box (Germanica Bank) and then taken into the Civil District Court that morning, the day after her death in April 1901. Then we know that its certified copy was used to initiate the long trial. Then, finally we can see it ceasing to be important after the court decision in 1908.
The Society of American Archivists Dictionary defines the life cycle of a record as being one with “distinct phases of … existence, from creation to final disposition.”[50] So, in this model, JNL created the will in 1898, and in 1901, in its presentation at the Civil District Court, it was put into action. It was also put into action as the focus of the Henderson’s petition. They said the will was not valid because it was written in New Orleans, which was not her legal residence. It became archival, that is inactive, after 1908 when the court ruled that JLN was competent to name her own legal residence. New Orleans was this home for her. So the will was valid and the money could go to the College. While the will remained linked to other aspects of her legacy under the number assigned to it by the Civil District Court, it was not living, not needed again in the same way for which it was created. It had reached its end point.
But the will was involved in so many more steps than creation, use and disposition, that the records continuum model is more practical as a way of thinking of JLN’s continuing paper and electronic collection. This model emphasizes overlapping dimensions of recordkeeping and related axes of accountability.[51] Though the will is one record, and its creation and use are important functions, there are other steps and all together they orient us towards a collectivity in the process of record making and retention. Other steps have to happen in Louisiana for the will to stand. The executors have to take up their appointment. There has to be made an inventory of all JLN’s worldly goods. All these functions mean a return to the original wording but also new uses, new organization.
Throughout the twentieth century, as the University and others grappled with the meaning of a separate women’s college, the will was used again and again. Its latest use happened in the years following Hurricane Katrina. Then the will was used in another court case deciding if the descendants of the heirs who had lost in 1908 could block the University from creating a coeducational undergraduate college called Newcomb-Tulane, replacing the coordinate college named for H. Sophie Newcomb.[52] Here the will continued well into the twenty-first century to offer evidence, facilitate transactions, and bolster identity. The court found a new use of her words in the will, and in archival terms, pluralized the document in doing so.[53]
Physically, JLN’s will was moved around at least three times in New Orleans. The court in the Presbytere moved in 1910 to the Supreme Court Building on Royal Street and the records came there too. Then in 1960, the court at last had a new building on Poydras and Loyola, and the records moved again too. This made them in close proximity to other newly opened public buildings, including City Hall, the Public Library and the Supreme Court.[54] Then, with space running out, and with an alert about jeopardy to the records from Mormon microfilm volunteers, archivists and librarians literally rescued the early records from their transfer to warehouse space already infested with roaches, rats, and mildew, moved them to the City Archives, located in New Orleans Public Library. There, the Mormon volunteers filmed the records.[55] And there, librarians made an index that included JLN’s 1898 will.
The will itself as an individual and physical item changed over time in other ways, as well. At the Presbytere and at the other locations of the Civil District Court, the will’s pages were first folded in three pieces and bundled with other wills. Wills were stored in “tall metal, cubby-hole cases” at the 1950s’ court location. But sometime in the twentieth century, the court no longer folded wills coming into the storage area. And then later, those older folded ones were “reordered,” or unfolded: “NOPL staff/volunteers (mainly the Mormon microfilming crews) flattened entire series of records over the years, but many series remain in the original bundles,” archivist Wayne Everard remembered. He also remembered that “For some years, we were refolding documents after researcher use, but finally began the practice of flattening any and all records pulled for use. Those are filed in individual folders and boxed separately from the main body of records. The flattened records are given consecutive box/folder numbers and there is a database showing the box/number for each flattened record. If a record is requested and is not available on film or digitally, staff checks the flattened record list before going into the bundles.”[56]
In the early 2000s, the Mormon volunteer-created microfilm was converted to electronic scans and made available on Ancestry.com and other databases. The records continuum model would include this new form online as another pluralization of the will. It moved farther out there in the world. Even the creation of a website here has brought the will into a different type of use.
That said, the will has other layers of activation or pluralization that connect not to the future but backwards with another consideration of why JLN handwrote her will, the context of her will-writing. She and McConnell specifically wanted an “olographic will” to conform with Louisiana’s laws and customs, but they also wanted it to be exactly in line with all that was needed for such a record because of circumstances surrounding the 1887 death of Paul Tulane, for whom the University is named. Paul Tulane had written a codicil to his will leaving all his money to the University. But this codicil was never found. McConnell didn’t want such a loss to happen again. He could depend on the handwritten will of JLN, especially in his deposit box. There he kept it long enough to present it to the court of record in New Orleans and its copy to the court of record in New York.[57] Its use has this frame of another legal document lost.
The will appears on page 92 of the judgment roll. Reading this volume and its accompanying volumes takes one through all the legal recordkeeping and archival passages, other contexts, or one might say subtexts that allow another frame. That frame concerns the NY Code of Civil Procedures and the New York Code of Practice, which governed how records were kept. Sometimes called the Field Code, the Code of Civil Procedure was considered the first to fuse common law traditions into a comprehensive statute. Its rules were reviewed every two years.[58] There were various manuals explaining and setting out guidelines within these codes. We can turn to them to learn more about what was required in the creation, use, and dissemination of records.[59] For example, a book popularly called Parsons’ Complete Annotated Pocket Code, in its thirtieth and 1905 edition, specified in Rule 19 that all pleadings submitted to the court had to be numbered and marked at each folio (every hundred words or so) in the required margins. All copies also had to be marked in this same way so that original drafts would conform to the copies. Each set of papers compiling the case materials had first to be endorsed “with the title of the cause.” Each had to be written or printed in black characters, legible, and on durable paper of good quality.[60] In some rules for specific courts, the type of paper to be used was given (if typewritten, for example, be on paper “of linen quality equal in width to sixteen pounds to the double-cap ream”).[61] Paper sizes varied for different records, from seventeen by twenty-eight inches for a very few, with most at ten and one-half by eight inches. Text itself should take up an area of seven inches long and three and one half inches wide and so fit on various sizes of paper. “The paper should be bound on the edge of the greatest length.”[62]
As the papers moved to the Appellate Division, they were bound in what we call today a soft binding. The petitioners paid for all the printing, according to Rule 41 of the Code.[63] The Clerk of Court, for a fee of one cent per folio, certified that the printed copy of every record in the judgment roll matched the originals or other certified copies.[64] No mention is made in the Code or the manual of rules of printers. However in the judgment roll there is some discussion of the printing of papers, and printers’ imprints can be found on all the volumes submitted to the Appellate Division, as well, of course, on briefs in many collections today. Three printers used in the Newcomb case volumes are Crist, Scott, and Parshall, the Appeal Print. Co., and R. H. Tyrell—of New York city or Albany suggesting that local printers were favored.
The printed copies in duplicate copies, dispersed to many libraries, meant the survival of the letters within the testimony and evidence volumes. We doubt that these letters of JLN would have survived at all, and certainly not come together in such quantity, had there not been a court case and the rules governing the retention of the printed materials.
But how did the originals fare, or even the stenographic copies of the letters, and where were all the completed forms, their combination of print and handwriting, housed in New York? They were in the Tweed Courthouse and then in 1907, moved, when the court moved, to 31 Chambers Street. They moved again in 2017 to the State Archives.[65] And, the judgment rolls and volumes of testimony and evidence from the New York intermediate and higher courts, are now within the arguably not-an-archives, that huge universe of so many documents, the Internet, scanned from copies held by the New York City Bar Association library, one of the repositories the Code always listed in their early rules as the Law Institute.[66] Thus we see how the various processes and rules made the court materials last until today, becoming part of an archival legacy.
Recordkeeping by Custom
Some ten years before the scanning of the New York City Bar Association volumes, when we began this project, we did not know about the letters in such plentitude in volumes three and four of evidence and testimony. However, we did know that there were volumes, vaguely mentioned as briefs, that the attorney McConnell had left to Tulane University Law Library. How we knew of this we do not remember. They were not cataloged volumes or listed in any finding aid. One just had to know one could ask for them. We found no citations to them. They were, in some ways, hidden. The JLN letters in the family papers of the McConnells were similarly not described in finding aids, and before we found them, not in other footnotes.[67]
McConnell’s briefs, judgment roll, and other volumes have a history themselves that becomes apparent in opening and studying them. They came also with 900 other books and their own “antique” bookcases, and included briefs from other states, 170 from New York.[69] They have now crumbling dark leather covers with various paper labels taped near to their spines’ gold lettering: Newcomb Case: N. Y. Supreme Court, Appellate Division (four volumes), Newcomb Case: Court of Appeals (also four volumes); Newcomb Case: Brief for the Henderson Heirs, Surrogate Court; and Newcomb Case: Brief for Henderson Heirs, Supreme Court and Court of Appeals; Newcomb Case: Defendants’ Reply Brief; and Newcomb Case: Petitioner’s Brief. Within the pages of his Testimony of J. McConnell, McConnell has written in pencil on the pastedown end paper “Used in my argument before the Referee which lasted six of the hottest days in July 1903.” On the page opposite, he and some one processing the books have added other notes. In the top right hand corner is first “James McConnell, Private” in ink, indicating his own library. Then below that in pencil someone else added ENCL Louisiana TR-N, suppl. V.1. In the left hand side of the page, they added the stamp of Tulane College of Law. The stamp is slightly askew, one of those markers that one thus registers as the speed or simple hurry of the processing clerk. The next page has a bookplate, printed with “College of Law Library” and then handwritten in the section after “Supplied by” James McConnell, Sr. on October 22, 1908. Perhaps they had waited from May until autumn for a little ceremony where McConnell would have pulled this volume from the shelf and handed it to the librarian. Also handwritten within the bookplate’s blank line is the date June 26, 1936. So they waited to actually add the books to the library. They likely sat in McConnell’s son’s office, or that of someone else who followed him in his work. On another opening page, the division of time between donation and accession is noted, “Presented by James McConnell, Sr. October 22, 1908 (Accd’d on June 22, 1936).”[70]
The content pages follow, the Index as it is called. McConnell organized it in three parts, by the three complaints of the petitioners about their aunt’s will (domicile, mental instability, and undue influence by Tulane). Besides the printed index, he has more than a dozen handwritten notes, to go with the page numbers, for example, “198, Mrs. N. always rational”; “199, Mrs. N not a paranoiac”; “202, Family Quarrels not delusions caused the separation.”
These notes are archival, in that they are uniquely assembled into a specific form, the handwriting set in the context of the printed volumes. [71] They are not written down in exactly the same way anywhere else; they reveal a particular conduct of work and life. They show us how McConnell used the printed materials as a workspace.
The letters in the family papers also have supporting and contextual notes discussed on this website.[72] As shown there, two tattered sheets of paper wrap around the letters and give some explanation as to their relevance, or lack thereof, to the court case. In preparing for the court cases, McConnell contacted the friends and relatives of JLN requesting they send to him any letters that were written by her. It appears that McConnell himself, or an assistant, read through the letters selecting those for the court case that pertained to the charges brought by the plaintiffs. They found some 133 letters that were not relevant. These they retained separate from the others.[73]
One sheet wraps around a set of letters with the instruction “Not to be printed because irrelevant to Q of domicile 51 letters in this package.” Then written below those instructions was the notation “Not relevant to question of Domicile nothing about H—” then listed below, “Note 30 letters to Dr. Dixon as above (herein) 25 “ Col Johnston} in two other bundles 27 “ “ “82 total”.[74]
A second group of letters were held together by a paper clip in what had been an envelope with the return address of the New York attorneys representing the University: Wilmer & Canfield, Counselors at Law, Atlantic Building 49 Wall Street, New York.
On the envelope was written: “Letters to ‘My dear friend’”
93-94
Domicile
Property of Jas McConnell Esq
[words illegible] of Mrs Newcomb + copies
10 Fr Dr. Dixon print
To be Offered
10 letters from Mrs N in this envelope”
Several of the letters had a pencil note at the top indicating something of the content of the letter, for example “Callender.” These notations are indicated in the transcriptions. Other pencil marks on the letters, such as a line down the margin, are not included in the transcriptions. The earliest correspondence in the collection dates to 1880. The last is October 1, 1900, approximately six months before her death.[75]
The retention of the paper cover sheet allows us insight into their organization in lawyer McConnell’s office. It suggests too that the family did not touch the records, did not disturb what archivists call original order. They may have done so either by intention or neglect. They were donated in 1967 and no one today can remember where they were located prior to their donation. [76] In brief, their survival is more one of circumstance than intent.
Conclusion and Suggested Work Ahead
In the description in the NE Reporter (In re Newcomb’s estate, 192 N.Y. 238, 84 N.E. 950 (1908)), we find two columns of information within eight pages. There is a synopsis, other remarks, and the opinion of Judge Vann. In the latter, the overall important comment was that JLN was competent to choose her own residence.
Of interest is Judge Vann’s remark that there was one place in the evidence that error could have been made.[77] This was in not allowing more testimony by the physician Scratchley, with whom we began our look at some of the records in this case, in his filling out of the death certificate. Why had he wanted to leave the place of residence blank? Why had JLN’s companion been the one to add New Orleans as her home to the form? Why, in short, if New Orleans was her home, was JLN in New York City when she died? The Hendersons wanted that asked of Scratchley. But the judge would not allow it. “The trial was of unusual length, and during such a protracted and sharply contested investigation errors of minor importance are apt to creep into the record. We doubt if the matter could be tried over again with a smaller percentage of error.”[78]
Vann goes on to say something that applies too, to archival endeavors. “Courts are practical agencies of government for the administration of justice, and theoretical perfection is seldom attained. A close scrutiny of slight errors tends to retard the transaction of judicial business and to hamper the adjustment of legal differences.”[79] These remarks are especially applicable to rulings in Surrogate’s Court, for the New York Code directs judges not to reverse a decree or order of that court ‘for an error in admitting or rejecting evidence, unless it appears to the appellate court that “the outcome would have been different.”[80] To know if JLN would have come to New Orleans if she was not sick was not important. She had declared her residence as New Orleans and no matter when or where she lived, she had the right to do so.
As in archives, her declarations (in letters) to friends of New Orleans as home, and her will, were not perfect, but were statements that she, and also McConnell, meant to have been written and received in a manner that could hold up in a court of law. This is my legal residence and from here I make this will and do so following rules I know from living here. In a way, she was familiarizing herself with recordkeeping in this her last, but in so many ways also her first home. She had never owned a home, even with her wealthy husband, and had not lived in a shared home or a solitary home in any one place since very early adulthood.[81]
The will had a life she didn’t know about, of course. It came to be embedded with her wishes, her legacy, but first surrounded by various documents that came together to uphold her declared home. The letters she had written from so many disparate places came to have a practical home, as evidence of her sanity, in volumes of the court record. That context continues between her as a creator of the letters and their archival legacy, between the strands of recordkeeping—one bound by legal requirements, one given over to customs and habits—that were part of her life and afterlife.
There are many more questions that could be asked and answered using the records of the court case. We hope that this website serves as a jumping off point for those questions. Check back here for those questions that we will display using comments from readers like you.
[1] In re Newcomb’s Estate, 192 N.Y. 238, 84 N.E. 950 (1908). For the three points, see Synopsis.
[2] Ibid., The Judgment Roll and the three volumes of evidence both for the Court of Appeals and the Appellate Court also contain these items. For an explanation of what can be found online in 2020, see https://josephinelouisenewcombletters.tulane.edu/google-scanned-volumes/. For this essay, citations are to Appellate Court materials unless otherwise directed: State of New York Supreme Court, Appellate Division-First Department: In the Matter of Newcomb’s Estate, Case on Appeal, Volume I, Judgment Roll. Hereafter cited as Judgment Roll, Case on Appeal (New York, 1907).
[3] “Birth, Marriage, and Death Records,” New York State Archives, http://www.archives.nysed.gov/research/birth-marriage-death-records.
[4] Judgment Roll, Case on Appeal (New York, 1907). 43-44, 257; New York City Deaths, 1892-1902; Deaths Reported in 1901 (M-Z). Borough of Manhattan; Certificate #: 10988. Available Ancestry.com. New York, New York, Death Index, 1892-1898, 1900-1902 [database on-line]. Provo, UT, USA: Ancestry.com Operations Inc, 2003.
[5] International List of Cause of Death (revision 1) 1900, http://www.wolfbane.com/icd/icd1h.htm; Kathryn Schulz, “Department of Public Health, Final Forms,” New Yorker (April 7, 2014): 32-37.
[6] Greenwood Cemetery, Vital Information Form, Josephine Louise Newcomb 1901.
[7] Alice Reid and others, “A ‘confession of ignorance’: Deaths from Old Age and Deciphering Cause-of-Death statistics in Scotland, 1855–1949,” The History of the Family vol. 20, no. 3 (July 2015): 320-344. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4738191/. See also Lexico, U.S. Dictionary: s.v. “Senility, ” https://www.lexico.com/en/definition/senility. Testimony of Chamberlain, Vol. II, Case on Appeal (New York, 1907), 193.
[8] Testimony of Ida Richardson, Vol. II, Case on Appeal (New York, 1907), 184.
[9] Judgment Roll, Case on Appeal (New York, 1907), 257-258.
[10] New York Supreme Court, Appellate Division-First Department, In the Matter of Newcomb’s Estate, Appellant’s Points, 12; “President Dixon Talks Of Newcomb, His Trip to the North is Partially for Study,“ New Orleans Times-Picayune, Apr 10, 1901.
[11] James McConnell, Sr. to Joseph Hincks, March 21, 1898, Judgment Roll, Case on Appeal (New York, 1907), 695-697.
[12] Mary Ann Wegmann, The Law Library of Louisiana, and University of New Orleans History Department, “The Presbytère: Home of the Louisiana Supreme Court, 1822-1853.” New Orleans Historical, https://neworleanshistorical.org/items/show/804; Alphabetical and Chronological Digest of the Acts and Deliberations of the Cabildo, 1769-1803,A Record of the Spanish Government in New Orleans, New Orleans Public Library. http://nutrias.org/~nopl/inv/digest/digest.htm#digest.
[13] Judgment Roll, Case on Appeal (New York, 1907), 93-99. James McConnell, Sr. to Joseph Hincks, March 21, 1898, Judgment Roll, Case on Appeal (New York, 1907), 695-696.
[14] Judgment Roll, Case on Appeal (New York, 1907), 94.
[15] Judgment Roll, Case on Appeal (New York, 1907), 97-99.
[17] “Civil District Court, New Proceedings,” New Orleans Item, Apr 08, 1901; “Mrs. Newcomb’s Will,“ New Orleans Item, April 8, 1901.
[18] Vol. II, Case on Appeal (New York, 1907), 281.
[19] Judgment Roll, Case on Appeal (New York, 1907),101.
[20] State of Louisiana, Civil District Court for the Parish of Orleans, No. 64692. Oath of Joseph A. Hincks on assuming duties as executor for estate of JLN., April 8, 1901.
[21] “Mrs. Newcomb’s Easter Death. The Founder of the Great Southern Female College Passes Away Peacefully,“ New Orleans Times-Picayune, Apr 9, 1901; “Mrs. J.L. Newcomb Dead,” New York Daily Tribune, Apr 9, 1901; “President Dixon Talks Of Newcomb”; “The Hendersons Will Contest The Will Which Makes Newcomb College Mrs. Newcomb’s Only Heir,” New Orleans Times-Picayune, Apr 11, 1901.
[22] Judgment Roll, Case on Appeal (New York, 1907), 101, 103-107.
[23] Exhibit D, Order Directing Issuance of Ancillary Letters, Judgment Roll, Case on Appeal (New York, 1907), 30-31; Judgment Roll, Case on Appeal (New York, 1907), 102.
[24] Exhibit A, Judgment Roll, Case on Appeal (New York, 1907), 43. Wyatt signed his certification of the baptismal records of JLN on May 27, 1901. He signed also Exhibit F, concerning the burial of JLN’s mother as 1837, which should be 1831. However, he copied this date and others incorrectly and the original records are lost. The referee in the case noted that JLN’s mother likely did not die in 1837 but earlier. JLN remarked in a letter that her mother died when she was fifteen. Supplemental Findings, Judgment Roll, Case on Appeal (New York, 1907), 360, 630; “Mrs. Newcomb’s Sanity,” Opinion of the Referee, Judgment Roll, Case on Appeal (New York, 1907), 630; JLN to Mrs. Putnam, Feb. 16, 1900, Judgment Roll, Case on Appeal (New York, 1907), 15.
[25] Judgment Roll, Case on Appeal (New York, 1907), 21, 123, 152.
[26] Judgment Roll, Case on Appeal (New York, 1907), 21.
[27] C. Raymond Radigan and Adam J. Gottlieg, “Surrogate’s Court Structure, History, and Jurisdiction,” https://rmfpc.com/surrogates-court-structure-history-jurisdiction/
[28] “Order Directing Issuance of Commission,” Judgment Roll, Case on Appeal (New York, 1907), 189-199. The entire NY rules governing such a commission as Walshe’s are recorded in the judgment roll.
[29] Ibid. There are a number of choices for the witnesses in promising the veracity of what they were saying or having copied, including swearing on a Bible and other such methods.
[30] Index to Volumes II, III, IV, Judgment Roll, Case on Appeal (New York, 1907), v-xxix.
[31] “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.”; “Report of Referee,” Judgment Roll, Case on Appeal (New York, 1907), 205-206; In the Matter of Josephine Louise Newcomb Revocation of Ancillary Letters Testamentary Granted, 122, D.C. 920 (1907).
[32] Kimberley Sulik, Archivist/Records Manager, New York County Surrogate’s Court, Email to Susan Tucker, May 18, 2020.
[33] “Notes, how preserved: when written out,” In New York (State), Henry Browne Parsons, and John Crawford Thomson. The New York Code of Civil Procedure: Containing All Amendments to June 1, 1904, With Notes of Decisions to Date : Also the State Constitution, General Rules of Practice And Municipal Court Act of New York City. 29th ed. (Albany: H.B. Parsons, 1904), 23. Hereafter, Parsons.
https://hdl.handle.net/2027/hvd.hl49fc.
[34] Christopher Gray, “Streetscapes/Appellate Division, 25th Street and Madison Avenue; A Milky White Courthouse With Rooftop Sculptures,” New York Times, Oct. 24, 1999, “Supreme Court, Appellate Division, First Department,“ https://www.nycourts.gov/history/legal-history-new-york/documents/Courthouse_Supreme-Court-Appellate-First.pdf.
[35] Rule 7, Robert C. Cumming and Frank B. Gilbert, The Court Rules of the State of New York and Bankruptcy Rules and Orders, 2nd ed. Rev. (New York: The Banks Law Publishing Company, 1906), 24. 334. Hereafter, Cumming and Gilbert. https://hdl.handle.net/2027/umn.319510026533745
[36] “Rule 8, Judgments, entry and docket,” In Cumming and Gilbert, 49-50. See also “ Rule 23, “Judgment Rolls,” In Rules of Court of Claims,” Cumming and Gilbert, 49-50, 388.
[38] Law.com: Legal Dictionary, s.v. “Will.” https://dictionary.law.com/Default.aspx?selected=2248; Britannica Academic, 2018, s.v, “Wills”; Britannica Academic s.v. “Inheritance.”
[39] Dictionary of Archival Terminology, s.v. “Will.”
[40] Ernest Posner, Archives in the Ancient World (Cambridge, MA: Harvard University Press, 1972), 184, 192.
[41] Lawrence Friedman, Dead Hands: A Social History of Wills, Trusts, and Inheritance Law (Stanford University Press, 2009); Britannica Academic, s.v. “Inheritance.”
[42] M.R. Clancy, From Memory to Written Record: England 1066-1307. 2nd.ed. (Cambridge, MA: Blackwell, 1993), 254.
[45] “Will,” Judgment Roll, Case on Appeal (New York, 1907), 95-97.
[47] Britannica Academic, s.v. “Wills.”
[48] Judgment Roll, Case on Appeal (New York, 1907), McConnell to Hincks, March 21, 1898, 695-696.
[49] Judgment Roll, Case on Appeal (New York, 1907), 254, 397, 728.
[50] Dictionary of Archives Terminology, s.v. “life cycle.”
[51] Dictionary of Archives Terminology, s.v. “records continuum.”
[52] Montgomery v. Admin. of Tulane Ed. February 18, 2011.
[53] The 2011 court found LN’s wishes were “precatory” not “dispositive.”
[54] Judicial District Court Buildings Commission, “Civil District Court History – 130 plus years of service,” http://www.orleanscdc.com/CDC-BuildingSite/CDC%20History.html
[55] Collin Hamer, email to Susan Tucker, August 3, 2012.
[56] Wayne Everard, two emails to Georgia Chadwick, June 2, 2020. In possession of Susan Tucker.
[57] McConnell to Hincks, March 21, 1898, Judgment Roll, Case on Appeal (New York, 1907), 695-697; John Dyer, Tulane, The Biography of a University (New York, Harper and Row, 1966), 47, 60-63.
[58] Kellen Funk, “Equity without Chancery: The Fusion of Law and Equity in the Field Code of Civil Procedure, New York, 1848-1876,” The Journal of Legal History 36, 2 (2015), 152-191. Cumming and Gilbert, 24.
[59] The most well organized and easily searched online is the Cumming and Gilbert. That said, I have quoted from others as well, below, in order to get as close as possible to the date of the JLN proceedings 1901-1908. H. N. Greene, Greene’s practice time-table; consisting of the times required for each step in the practice of law in the state of New York, 2nd. ed. (Albany, N.Y., M. Bender, 1902). https://hdl.handle.net/2027/uc2.ark:/13960/t8rb70s07.
[60] Parsons, Rule 19, “Pleadings to be folioed” in “General Rules of Practice,” 82-83.
[61] “Rule 19, Regulations as to size of paper, writing, etc.,” in Cumming and Gilbert, 81-82.
[63] “Rule 41, Papers to be furnished on appeal,” in Cumming and Gilbert, 48; Parsons, 91.
[64] “Fees of the Clerk of the Court of appeals,” Parsons, 952-953; “Rule 8, Judgment-roll, by whom prepared; manner of filing, 49, in Cumming and Gilbert.
[65] Rick Rojas, “Centuries of New York History Prepare for a Move,“ The New York Times, Jan. 5, 2017; Isaac Newton Phelps Stokes and others, Iconography of Manhattan, vol. 6 (New York: R.H. Dodd, 1915-28): 220-221; Jim Folts, Head, Reference Services, New York State Archives. Email to Susan Tucker, May 15, 2020.
[66] Richard Tuske, Senior Director of Library Operations, New York City Bar, Email to Susan Tucker, Aug. 27, 2019.
[67] Harriet Swift, “’Being Entirely Alone & Unprotected’: Mrs. Newcomb in Letters,” in Newcomb College, 1886-2006, ed. Susan Tucker and Beth Willinger (Baton Rouge: Louisiana State University Press, 2012), 44-55.
[68] His daughter Annette McConnell Anderson was in the second graduating class of 1891. See Newcomb Student Records, Newcomb Archives.
[69] “Valuable Donation to Law Library,” Tulane Weekly, Oct. 8, 1908.
[70] Located in Tulane Law Library, Special Collections.
[71] James M. O’Toole, “On the idea of uniqueness,” The American Archivist vol. 57, 4 (1994): 632–658.
[72] See https://josephinelouisenewcombletters.tulane.edu/background-mcconnell/.
[73] McConnell family papers, LaRC/Manuscripts Collection 156. Box 15; Box 40. Louisiana Research Center, Tulane University, New Orleans, LA.
[76] Mary McConnell, wife of McConnell Sr.’s grandson. Conversation with Susan Tucker, June 29, 2020.
[77] “Opinion,” In re Newcomb’s Estate, 84 N.E. 950 (N.Y. 1908).
[80] Exceptions upon a trial,” Code Civ. Proc. § 2545, Parsons, 705.
[81] In Volume III, Case on Appeal (New York, 1907): JLN to Marie?, Dec. 15, 1884; JLN to JP, June 26 and July 15, 1900; JLN to LH, Christmas, 1873; JLN to LH, Nov. 10, 1871. Pages 786, 800, 801, 997, 1003.
[1] In re Newcomb’s Estate, 192 N.Y. 238, 84 N. E. 950 (1908); In re Newcomb’s Estate, 122 A.D. 920, 107 N.Y.S. 1139 (1907). For the letters presented as evidence, see The Judgment Rolls and three volumes of evidence and testimony, in the Google Scanned Volumes, linked in the Sources section of this website. : https://josephinelouisenewcombletters.tulane.edu/google-scanned-volumes/. For the letters in the McConnell Family Papers, see McConnell family papers, LaRC/Manuscripts Collection 156. Box 15; Box 40. Louisiana Research Center, Tulane University, New Orleans, LA.
