Source:Fleming-vanished
George T. Fleming. "Vanished tomb recalls sad story: Perpetual trust designed to care for remains of eccentric character unfulfilled: Fate of grave lot." Pittsburgh Gazette Times, Nov. 21, 1915, sec. 5, p. 2. Newspapers.com 85896250.
THE story today is a continuation of the De Rouaud–Tustin–Price history and will tell mainly of the provisions made by De Rouaud in his will for the erection and main- [sic] of his tomb and how these extraordinary methods came to naught. The tomb, costly and rare in its day, was ruthlessly torn away, it is alleged, without warrant of law.
What became of the bones, if any were left, cannot be ascertained.
Those supposed to know when interrogated affected ignorance.
Claire Aime Fidele De Rouaud, rare character, strange in every way when contrasted with conventional behavior of ordinary persons, withal was human apparently in most ways. Moreover, he was just and honest and honorable. In his eccentricity he did no man wrong.
He was ill a long time before his death and meditated upon his last resting place, planning the monument he desired erected to his memory on the spot he had selected and designating the person whom he thought best adapted to write an appropriate epitaph. This epitaph was in last week's story.
Having no ancestral estate or realty of any kind in Pittsburgh, his thoughts turned to his friend, James Tustin, and the mansion and beautiful grounds of that Soho pioneer, on the hillside overlooking the Monongahela, where he, with Tustin and Price, had passed many happy hours, for with all his oddities De Rouaud was not unhappy.
Odd But Not Unhappy.
The tragedies that terrified his early life had but twisted his disposition without souring it. This was evidenced in his will.
This was a thoroughly exact legal document, written by a lawyer of note, Charles S. Bradford, and witnessed by James Ross, a distinguished lawyer and publicist. It appointed Harmar Denny, a lawyer equally distinguished; Mr. Bradford and Dr. William H. Denny executors.
Three codicils were added to the will within a month, each witnessed by different persons. There was no thought of any illegality or want of testamentary capacity. As his end approached new thoughts came to the testator, which he hastened to incorporate in codicils, and he revoked certain provisions in the will, making new provisions.
The will is long and in the old-fashioned phraseology. It covers three pages of Will Book V, beginning at page 445, and is closely transcribed, the spelling of record—likely Attorney Bradford's—differing from the proper French spelling of Rouaud's given names.
The records read "Claire Aimi Fidelle De Rouaud."
De Rouaud's end came from the infirmities of old age, 76 years, but he was clear-headed to the last.
The provisions he made for his tomb are material at this point.
He had sent for James Tustin and requested that Tustin permit burial upon the spot selected by De Rouaud and that Tustin convey by a deed in fee simple to De Rouaud's executors or one of them, enough ground to erect a tomb after the manner De Rouaud had been used to seeing in France.
Tustin Gives Deed.
Tustin had selected the very spot that De Rouaud indicated for his own tomb but, led by the importunities of his dying friend consented. The deed was subsequently made.
Tustin selected a spot nearby for his own tomb, but this was a vault, part of which still remains on the hillside at the turn in De Ruad street.
Herein Tustin was laid in a coffin on a rock shelf at the rear.
Now as to De Rouaud's desires, written into his will with scrupulous exactness:
I bequeathe to James Tustin of Pitt Township, the sum of one thousand dollars in consideration of which I require him to take care of my dogs during their lives. I further bequeathe to said James Tustin fifteen hundred dollars out of which all my funeral expenses including grave lot and tomb shall be paid.
I bequeathe to James Tustin three thousand dollars additional on consideration that he convey to my executors in fee to be held in trust as a grave lot for my body a piece of ground in the rear of his dwelling house in Pitt Township such as shall be satisfactory to my executors, and that he erect around the said piece of ground a wall and railing in a manner satisfactory to my executors and also on the further consideration that he perform the conditions annexed in my will, to wit: to take care of my dogs, defray my funeral expenses and expense of my tomb satisfactory to my executors.
The will was admitted to probate by P. A. Maderia, then Register of Wills, January 3, 1844, the subscribing witnesses, William McKnight and James Ross, testifying that they "saw and heard Claire Aime Fidele De Rouaud sign, publish and declare the said instrument to be his last will and testament, and at the time he did so he was of sound and disposing mind to the best of their observation and belief and at his request and in his presence subscribed their names as witnesses."
Second Codicil Added.
But De Rouaud was not satisfied that he had made himself clear. On December 2, 1843, he added a second codicil—to wit:
I make the following explanations and additions to said will:
It is my meaning and intention that the last mentioned legacy to James Tustin of three thousand dollars may be considered as given to him for the purpose of enabling him to improve his place and to be expended in putting in good order and keeping in complete repair his fences, enclosures and grounds, trusting in this to his friendly desire to follow my wishes. It is not my meaning and intention that the legacy of two thousand dollars bequeathed to him on condition of his defraying my funeral expenses, providing grave-lot and grave stone, shall be all expended for that purpose. On the contrary I wish it to be understood that the same for the most part is given to him in testimony of our long and sincere friendship, and that I desire a portion only of it expended as aforesaid, relying on the good sense of my executors that my funeral expenses and tombstone shall be suitable and proper, and such as becomes my character. I trust that in this as well as in the faithfully carrying out of our mutual views and understanding as to the particular spot selected for my grave, my friend James Tustin needs no injunction from me to do what his own heart will dictate, and that he will regard in its true light the stipulation for a deed of the grave lot which however unnecessary as respects to himself and his family, is deemed needful in law against others, their successors who might come after them in possession of the property.
Trust is Created.
I direct that my tomb shall be of marble as more durable than freestone and that it shall be of plain and compact form. I leave the design and inscription to my friend William H. Denny, and I appoint them to visit my tomb (Claire Aime Fidele DeRouand [sic]) during his life to see that the taxes be paid and that it be kept in good order and repair and that my wishes and intentions in respect to it be fulfilled. To provide for the continuance of such visitation and care after the death of the said William H. Denny, I authorize, and enjoin on the said Denny during his lifetime to appoint his successor with power also to appoint his successor, and so on, for the purpose of perpetuating this friendly office and in order that my grave may be kept as inviolate, and as free from molestation and decay as if it were in the best preserved cemetery.
It is my wish that in the deed of my grave lot it shall be stipulated by James Tustin that all taxes and needful repairs on said lot and tomb shall be a charge on his place forever.
It is my desire as I have already expressed to him verbally that William H. Denny be my acting and managing executor, in every important step consulting with my other executors and guided by the legal counsel of Mr. Bradford, and by the experience of that gentleman, and his brother Harmon, so that if possible there may be no contention and no law suit.
Surely De Rouaud was of sound and disposing mind, but his care and exactness in regard to his tomb came to naught. He has no tomb—has had none since 1902. To use a quaint expression: "It has been dug up, root and stump."
The conveyance stipulated in the will was made by James Tustin, Sr., to "William H. Denny, executor, etc.," and is recorded in Deed Book volume 73, page 43, December 22, 1845, and conveys a piece of ground 10 feet by 10 feet, reciting the surveyor's bearings with nicety.
Some Legal Points.
The language of the deed is as follows, after reciting the consideration in De Rouaud's will and the further consideration of $1:
The said James Tustin etc has granted, bargained sold released and confirmed unto the said Denny executor etc the ground occupied by the grave and tomb of said testator to have and to hold said piece of ground to the said Denny executor, his heirs and assigns and successors forever in trust for grave lot of said Claire Aime Fidele DeRouand [sic] and for no other purpose or use whatsoever.
Then follows the covenants as to care of tomb, repairs, taxes, etc., and to permit Denny access. The deed was witnessed by James Tustin, Jr., Ralph Reed and Thomas Daft, justice of the peace.
Some curious legal points are now suggested:
One—In whom was the title of De Rouaud's grave lot vested upon the death of William H. Denny in the failure of Denny to appoint a successor in the trust?
Two—Could a valid title be had to De Rouaud's grave lot except through Denny or a surviving executor, or one appointed as trustee as provided in the will?
Three—Is a grave lot containing a single grave a burial ground within the meaning of the laws relating to cemeteries in Pennsylvania?
Four—If yes to the above, does it not come under the provisions of the police regulations affecting burial grounds and cemeteries in Pennsylvania?
Five—If the answer of query two above is yes, "by adverse possession, for a period of twenty-one years," the question arises: How can one maintain adverse possession of a grave lot, since dispositions in perpetuity for the care of burial places have been legalized by the act of May 26, 1891, and such dispositions therein held to be made for charitable use?
Not Sold for Taxes.
Six—if the answer to query to be yes—"title by tax sale"—this answer is met with the requirement that this sale must have been made before April 5, 1859, as by the act of that date grounds used for perpetual burial are free from taxation.
Again, it could not have been by any tax sale, for James Tustin's heirs were in possession until 1887 and carried out the provisions of the will.
Seven—Has not someone grabbed a plot of ground 10 feet square for which he can pass no valid title?
The act of March 31, 1860, makes the violation of a grave or the malicious destruction of cemetery property a misdemeanor, and reads:
Any person who shall wilfully and maliciously destroy, mutilate, deface, injure or remove any tomb, monument, gravestone or other edifice in any cemetery, or graveyard, appropriated to and used for the interment of human beings in this commonwealth, or shall wilfully and maliciously injure, destroy or remove any fence railing or other work for the protection or ornament of such places of interment, or shall wilfully open any tomb, vault, or grave within the same and clandestinely remove any body or remains therefrom or maliciously destroy any tree or shrubbery growing in such cemetery or graveyard, shall be guilty of a misdemeanor, and on conviction of either of the said offenses be sentenced to undergo an imprisonment not exceeding one year, or to pay a fine not exceeding one hundred dollars or both or either at the discretion of the court.
"It seems inconceivable that the violators of De Rouaud's tomb," said William Henry Sims, "could have been ignorant of the provisions of this act. I made inquiry about the matter at the time and got scant satisfaction.
No Prompt Action.
"Two years is the statutory period within which an information for a misdemeanor can be brought. I permitted this period to elapse and now the parties who despoiled the tomb are exempt from punishment.
"All De Rauaud's [sic] careful plans, his carefully expressed last wishes have come to naught; also, all my great-grandfather James Tustin's care and kindness.
"I think the whole story of this vandalism is a sorry story of greed and avarice and could have been avoided, and I may say further that if I wanted to purchase the lot on which the tomb stood, I would very much question the right of the present holder of it to give a valid deed for it. The lot as it now exists is virtually a small precipice."
And the question recurs whither journeyed De Rouaud's bones and what of Cricket and Baby Bee, pet spaniels, who lay by his side?
Small accounts of them may be written, for bequests for the burial of beasts, even pets are much beloved, have been held invalid as against public policy.
It is different with the remains of human beings. The law safeguards them—at least presumes to—or to put it thus: the law has made statutory provisions for the maintenance of a sepulcher and provided against its violation—but all in vain as regards Claire Aime Fidele De Rouaud.
There are some other provisions in his will that deserve passing notice.
To James McCluskey of Pittsburgh he devised 1800 arpents of land in Missouri, at St. Genevieve. An arpent is five-sixths of an acre.
To Louis Lize he bequeathed $250, and to Samuel Mahy $250—the latter having been employed in De Rouaud's store.
All the rest of his estate was to go to his brother, Pierre Marie, "at Nantz in the department of the Loire Inferieure."
Further Bequests Made.
De Rouaud added a codicil to his will on November 29 in which he directed William Daly to make out an inventory of the stock in the store and have it sold by his executors. In case the brother Pierre should be dead James Tustin was to receive $3,000 for the purposes mentioned; 20,000 francs was to go to the next of kin, and 25,000 francs to the nurse who may have been the longest in attendance upon Pierre.
In case none of the relatives were alive all the residue of the estate was to go for the founding of a hospital in Nantes, France. This codicil was witnessed by William McKnight and S. K. Johnston.
In the codicil of December 2, 1843, enjoining upon William H. Denny the duty of visiting De Rouaud's grave as recited above, it was further enjoined upon Mr. Denny that he should go to France to deliver the inheritance to Pierre, if alive, and also that "Denny shall visit my native city Chalons in La Vendee."
Now we come to some apparently mixed geography. Chalons Sur Marne has becomme [sic] noted in the history of the great war now raging, that is Chalons on the Marne River. Then there is Chalons sur Saone, and there is Chalonnes on the Loire, but not in La Vendee.
De Rouaud must have known where he was born. His tombstone read: "At Chalons in La Vendee."
William Thorn and David Diffenderfer witnessed the codicil of December 2. There was yet another on December 9, witnessed by Dennis S. Scully.
Stephen Quinon's description of the tomb in October, 1894, as related in the Philadelphia Times, reads:
When I was on the spot the other day pieces of marble of the tombstones of the dogs were lying around. De Rouaud's body is in a brick vault covered with a block of sandstone. The marble slab bearing the inscription which in the will it is said William H. Denny was to write, has been turned over probably by persons trying to get into the vault. If it was restored to its place the exact date of his birth and death might be obtained. It would require several men, however, to move the slab. Tustin was to select the spot for the grave and he selected the one where they used to sit and discuss theology. It is among terraces of stone which if in England would be mentioned in the guide books.
Trip to France.
The inscription as revealed from the photograph of the tomb shown last week testifies that De Rouaud died January 1, 1844. He selected the site of his tomb and Tustin acquiesced.
Mr. Quinon likely refers to Tustin's burial vault. De Rouaud was buried in the ground.
In the summer of 1844 Dr. Denny took 45,000 francs and started for the chateau of Count Pierre Marie Rouaud de Raillere, near Nantes. He was received most cavalierly by the old Count, a "crank" one would call in modern parlance.
"I don't want the money," blurted the erratic nobleman. "I have more than I know what to do with." And then he showed good Dr. Denny the door.
The visitor was in a quandary. He hesitated. It was evident all the queerness in the De Rouaud family had not been interred with Claire Aime Fidele in Soho, Pittsburgh.
Dr. Denny tried again and met a second refusal. But Denny, who spoke French fluently, tried his powers of persuasion until the Count relented, agreeing to receive the money if Denny would bring a notary and swear to the truth of his statement.
This was done and then the Count refused the money again, demanding gold. Gold was given him, whereupon the Count rang for his servants and ordered them to take the gold and put it in the vault. He did not count it or look at it further.
Easy money to him, sure enough, and about $8,500.
Now Dr. Denny began to reason and he deduced as follows:
These brothers were long separated. Pierre doubtless fears some scheme; that Claire has left a son or heir in America who will attempt to oust him or his heirs from the ancestral estates.
Pierre could not know that Claire had dropped his baptismal names and the aristocratic "De" and in Pittsburgh was simply Francis Rouaud, a merchant.
And these deductions are logical enough.
Site of the Tomb.
The lonely and long-since despoiled tomb of Claire stood upon the land first purchased from the state by Mollie Murphy, an original genius whose life was passed among the soldiers about Fort Pitt and who could swear as loud and as long as any of them; who sold everything from pins to whisky, and with her gains bought land and, having no child of her own, adopted a daughter, who became the wife of the Count de Beelen.
We have Beelen street in Pittsburgh and once had Murphy street in the old Fourteenth Ward in Soho. Anthony Beelen conveyed the land to James Tustin.
And so, on the terrace above Fifth avenue opposite Seneca street, there once reposed all that was mortal of Claire Aime Fidele De Rouaud, Vendeean noble, pioneer silk merchant and liquor dealer of Pittsburgh, and on the land once owned by Mollie Murphy, vivandiere.
