CLAIM

on behalf of

LETTIE CHARLOTTE DENHAM AND FRANK PARLIN DENHAM

DOCKET REGISTRY NO. 13

Syllabus

The Tribunal reviewed the judicial proceedings of the lower court and of the Supreme Court of Panama and rejected the claim of denial of justice on the ground that there was "no evidence of any manifest violation of law or of manifest bad faith in the application of law or in weighing the evidence filed by the parties".

SUMMARY OF THE BASES OF THE CLAIM

The facts on which this claim was based are briefly sketched in the Decision of the Commission. That sketch does not, however, develop clearly the basic contentions of the United States before the Commission. The following brief additional outline of such contentions is therefore added, in order that the Decision may be fully appraised.

The deceased, Denham, had accumulated a considerable fortune in Panama. Long before his death he had made a full and satisfactory settlement with his paramour, Andrea Gonzalez, and their relations had been terminated. Denham and his wife had become reconciled. Just before his murder by Segundo Gonzalez, however, he and his wife had had another disagreement resulting in a conditional dissolution arrangement which was immediately

recanted by both and was never carried out. While in the heat of that disagreement, however, Denham had persuaded his wife to sign a written document by the terms of which she was to obtain a divorce in the United States and, after having obtained it, was to be paid a specified amount (in addition to certain amounts which she admitted having previously received from Denham) in settlement of her portion of the joint estate. By the terms of that document, however, she was to accept as a last payment in settlement of her portion of the estate a certain note for $5,000, supposed to have been guaranteed by a certain bank in the United States, to be paid only after she obtained the divorce. Because of the subsequent abandonment of the divorce arrangement, and the death of Denham, the execution of the contract became impossible and the $5,000 was never paid to Mrs. Denham. As indicated hereafter, however, she was held by Panamanian courts to have definitely lost her interest in the estate by that agreement, regardless of the subsequent impossibility of performance and her inability to collect the $5,000 consideration. The estate was valued at above $50,000 and, under the law of Panama, her interest therein was one half. As a matter of fact, very shortly after the supposed settlement contract had been concluded, Denham and his wife had mutually decided to abandon it, to sell the property in Panama, and to reunite the family on a permanent basis in the United States. It was at this point that Denham was treacherously murdered under the circumstances indicated in the case reported above, beginning at page 199. Immediately after the mortal wound was inflicted, when his mind was apparently clear, Denham made a will devising most of his property to his wife, his legitimate son, and his sister, after making certain cash legacies for his five illegitimate children. That will, however, lacked certain legal formalities. In the evening of the next day, a few hours before his death, and after his mentality had apparently become clouded by suffering and the infection from his

fatal wound, a second will was produced, under very suspicious circumstances, in a locked room, from which Mrs. Denham's friends were excluded. The will was admittedly dictated to the notary by one Kinkead, a Jamaican negro who was a friend of Andrea Gonzalez. No one was present at the writing of that will except Kinkead and the notary. Two "witnesses" were said to have been admitted later during the alleged signing of the will. By this last will Denham reduced his legitimate wife and son to the same status, in the distribution of the estate, as his illegitimate children, cut off his sister entirely, and left a small legacy to a certain Panamanian.

Shortly after Denham's death this latter will was offered for probate by Andrea Gonzalez. Mrs. Denham threatened to contest it. Had she made a successful contest, neither the Gonzalez woman nor her illegitimate children would have received anything from the estate since under the law they had no right of inheritance therein. They therefore risked the loss of everything by permitting such a contest to be made. In these circumstances the two women avoided litigation by entering into a mutual agreement whereby the estate was to be divided between Mrs. Denham, her son, and Andrea Gonzalez's illegitimate children in a manner considered equitable to all concerned, and the will was to be entirely abandoned. Although the probate proceedings had been opened on the basis of the alleged will, the parties, through their attorneys, jointly petitioned the court to give effect to the compromise agreement in lieu of continuing with the probate proceedings.

In accordance with article 1617 of the Judicial Code, the judge, to whom a will might be presented for probate, was required to dictate an order (auto) declaring the succession proceedings open and declaring certain facts concerning the contents of the alleged will, such as the heirs and legatees named therein, the executors (if not named in the will, who they would be by law), and the wards of any minor children. This auto was required to conclude with

an order calling upon all persons who might have any interest in the estate to enter their appearances. This order clearly was intended to serve the purpose only of giving the necessary publicity to the opening of the probate proceedings to enable all interested parties to appear to establish their rights. Other code provisions determined, with some detail, the necessary procedure thereafter for publication of the above auto, for the appearance of interested parties, for the temporary handling of the estate pending the establishment of the rights of contesting parties, et cetera. According to article 1608 of the same code, after such contests were determined, and the inheritance taxes paid (and only then), the court was required to issue a decree definitely fixing, for the first time, the rights of the parties in the estate. By virtue of this latter decree, and not before, the parties were enabled to initiate independent litigation in prosecution or defence of their rights in the estate. Codigo Judicial, 1611. Pending the issuance of this final decree, all rights in the estate were, of course, in a state of uncertainty and in suspense. When that decree was issued it retroacted to the date of the death of the deceased-not to the date of the opening of the probate proceedings. The preliminary auto opening probate proceedings was issued by the court, on the basis of the alleged will, on April 6, 1918. The interested parties then, by mutual agreement set the will aside. The final decree of the court giving effect to such mutual agreement, retroactively as from the date of the death, was issued on August 13, 1918. Therefore, by the unanimous act of the parties and the court, not only were the proceedings for the probate of the will abandoned, but, in lieu of the will, another document was approved by all as the basis for the decree of the court determining the rights of all in the estate.

It appeared to be obvious, therefore, that the auto opening the probate proceedings had such opening as its sole purpose and that it was never intended, either by the code provisions or by the court, to confer substantial property

rights. It was a mere formality and, after the issuance of the decree of August 13, 1918, was a nullity so far as concerned the vesting of rights.

For something more than two years, the property was handled in accordance with the agreement and the judicial decree of August 13, 1918, putting the agreement into effect. Andrea Gonzalez then brought suit to have the contract set aside (she had brought a similar suit in 1919 but subseqently abandoned it) and the estate redistributed in accordance with the terms of the alleged will. The principal bases for her action were her allegations that the illegitimate children had not received as much under the agreement as they would have received under the (doubtful, unprobated, and theretofore abandoned) will; that she, exercising patria potestas, had not had the right, under the law and without prior authorization of the court, to compromise the rights of her children; and that, therefore, her contract with Mrs. Denham was illegal and must be canceled, and the property redistributed in accordance with the unprobated will. The pertinent provision of local law in this connection was article 1501 of the Civil Code which, as translated, reads as follows:

"ART. 1501. The tutor may not compromise with respect to the rights of the person which he has in his charge without previous judicial authorization given with cognizance of the cause.

"The father, and in its case, the mother, may compromise with respect to the properties and rights of the child which they may have in their keeping, but if the value of the object of which the compromise relates shall exceed three hundred balboas, it shall not have effect without judicial authorization."

The case was defended, of course, on the ground, among others, that since no legal will had ever been established and the children, under the law, had had no rights in the estate in the absence of a valid will, it was impossible that their rights could have been illegally compromised by the mother in her agreement with Mrs. Denham, because they never had any vested rights until the court decree of