baptism was produced, which bore the alleged signatures of the parents, under the name of Somerset. The first name of the mother had been written on an erasure, and it was claimed to represent 'Anna.' Two handwriting experts, however, testified that the name was absolutely indistinguishable, and they declared that the rest of the signature was evidently written by the same hand which had signed as Arthur Somerset What adds to the strangeness of the proceeding, as viewed from the standpoint of the decedent, is the circumstance that the ceremony was solemnized with her consent in a church edifice, which was open at all hours to worshipers and visitors, and in which at any moment she might have been recognized. But another and apparently impassable bar to the acceptance of the narrative is the personal description of the decedent, which was furnished by the claimant's witnesses. The decedent was quite petite, and the slenderness and grace of her figure were everywhere remarked. Indeed, she prided herself upon these characteristics, and was careful to dress in a manner to show them to advantage. To use the words of Mr. Petre, 'She was short, very elegant, and very smallwaisted.' The nurse with whom the child had been left, in the descriptions which she gave of the mother, pictured her as the reverse of this portrait. In her testimony before the commissioner she described the child's mother as a good-sized lady, with 'yellow hair', (the decedent's hair being a dark brown), tall, above the average height of a woman. To the lady who founded the Mission Home and Orphanage Institution at Paris she said the mother was an English-❘ woman; that 'she was big, stout, and thickset, and always came into the room with a bounce.' She complained that the parents had discontinued the stipulated allowance for the support of the child, and when she was told by the manager that the sum which was then due would be paid her by the institution, provided she would surrender the child to its custody, she replied that she would do better than that, and that she would bring up the boy to be a curse to his parents. "If the testimony of Mr. Petre were excluded, a court might well hesitate, upon the remaining evidence, to sustain a verdict in favor of the claim. He alone, of all the witnesses, has brought the decedent face to face with the claimant. He was the confidant to whom the decedent made an unreserved confession of her double folly and crime, and at the same time implored his aid, and he was an eyewitness and actor at the child's baptism. Unfortunately for the purposes of this investigation, the supreme test of his truthfulness or falsehood, the letters of the decedent, whose production would have ended the case, are wanting. The vital fact that such letters were ever received, or that, if received, they came from no other than the decedent, rests on his unsupported word. His testimony as to the decedent's presence at the christening stands on no better basis. It is not corroborated by the record which he declared she signed, in which the assumed first name of the child's mother was undecipherable, and in which her assumed family name was apparently in the handwriting of Arthur Somerset. Our business is with facts, and we are not bound to search into motives. One or two things, however, appear upon the surface. Mr. Petre was a man of the world, cynical and indifferent in his mode of thought, but solicitous, it may fairly be presumed, for the reputation of certain noble English families with which he was more or less closely allied. The ties between him and the decedent were purely conventional, and had indeed been severed when by his own admission the decedent had deliberately cut him in public. He knew, before he gave his testimony, that she and her husband were dead. It is at least possible that he determined to interpose the decedent, who had thus passed out of his life, as a shield to protect the honor of an English lady, who is more or less obscurely hinted at in the evidence as figuring in the history of Capt. Farquhar. The captain's brother, for instance, stated that he had examined the contents of a box containing letters addressed to his brother, which, after the death of the latter, had been sent the witness by Mr. Petre, and that no letter from Mrs. Dundas was among them; but letters were there from an English lady of title which showed that the writer was on terms of close friendship with the captain. If this was Petre's design, his task was comparatively easy. He had only to substitute the name of this decedent for the actual person who assumed the name of Somerset, and the whole superstructure of his story was already built. A woman under that name undoubtedly placed a child in the home of the Redmonds, and attended at its baptism. Either she or Capt. Farquhar furnished the moneys for its maintenance, and she wrote, if they were written at all, the self-incriminating letters. If the testimony of a number of eyewitnesses is to be believed, this person differed in essential particulars, which could not have been mistaken or overlooked, from the decedent. Capt. Farquhar, who could have solved the riddle, is dead, and Petre alone swears to the identity of the decedent, We have read the evidence with care, and are bound to say that in our judgment it does not sustain him. "It would serve no useful end to attempt an elaborate analysis of testimony, which covers 1,000 pages of print, and which contains much that is necessarily irrelevant in connection with the acts of parties which took place many years ago. Discrepancies and contradictions are apparent in the proofs submitted on both sides of the controversy, and are the natural consequence of a lapse of memory on the part of the narrators; but tition is denied by the answer in the most positive terms. The claim of the petitioner, it is now stated, has been assigned, and any recovery will inure to the benefit of the assignee. The consideration of the assignment does not appear, but the amount covered by the petitioner's claim is one-third of the estate embraced in the administrator's account, or $38,173.39, with interest. The on his own behalf, admitted on cross-examination that he had, before making the assignment, endeavored to raise money on his claim by fabricating evidence in its support, and the case is thus brought within the principle illustrated by McHugh v. McHugh, 186 Pa. 197, 40 Atl. 410, 41 L. R. A. 805, 65 Am. St. Rep. 849; Moriarty v. Railway Company, L. R. 5 Q. B. Cases, 314, etc., that the fabrication of evidence, while it does not raise a presumption of law, justifies a finding against the guilty party, as furnishing 'strong evidence that he knew perfectly well that his cause was an unjust one.' It is not necessary, however, to decide the case on this ground, though in considering the testimony of the petitioner's witnesses it is not to be lost sight of. they have little bearing on the final result. The same may be said of other incidents which, standing by themselves, would seem difficult of explanation. It may be freely admitted, for instance, that Mrs. Dundas was flattered by the attentions of Capt. Farquhar, and that she even loaned him some of her jewels upon which to borrow money for his needs. It was not, however, so remarkable as to be incredible. The captain | petitioner, who was examined as a witness was a trusted friend of her husband, and she knew him to be in financial straits. So the payment by Maj. Dundas, under the settlement forced upon him by the claimant's attorney, loses whatever sinister meaning might otherwise have attached to it, in view of the absolute inability of the husband to probe at the time into the facts. That he soon after learned enough to assure him of his wife's innocence is very manifest from his reply to the lawyer's demand for additional money. His language in that letter 'was: 'Had I possessed a month ago the 'data now in my hands and for the collection of which some time was necessary, I would not have paid one penny. If the parties apply to me in France I am determined to make it a matter of summary police correctionelle.' The nurse, embittered because she felt that she had been defrauded by the child's parents, was a willing witness for the claimant. She made variant statements as to the number, of visits made by the mother to the witness' house, and she recognized photograph likeness of the decedent, although she said the mother wore a veil at those visits and at the child's baptism. She admitted that she had never heard the name Dundas until it was communicated to her by the lawyer, Wallis. Mr. Petre's declaration that the money for the child's support must have come from the decedent, for the reason that Farquhar was destitute, was offset by his after-declaration that he received a letter from the captain, who was in his command in Egypt, stating that the writer had a deposit of £600 in the bank at Cairo, which was subject to Petre's order. It is unnecessary, however, to go into further detail. "The petition is dismissed." The following concurring opinion by Penrose, J., was filed in the court below: See "The petition in this case seeks to set aside a decree confirming the adjudication of the account of the administrator, making distribution of the decedent's estate between her husband and son; such distribution having been confirmed more than a year after her death, and the husband having died before the presentation of the petition. Piper's Estate, 208 Pa. 636, 57 Atl. 1118. It alleges that the son to whom distribution was made was not the only child of the decedent, and that the petitioner was also her child, born in June, 1880, and as such entitled under the intestate laws to one-third of her estate. This averment of the pe "In 1880, and for a number of years before and after that time, the decedent and her husband resided in Paris. They had two children, of whom the youngest was then about seven years of age. In May, or the latter part of April, of the year mentioned, the husband was called to Philadelphia, where he remained until some time in the following fall, leaving, in the meantime, his wife, the decedent, in charge of their house and household and of their little son. The petitioner alleges that the wife, at the time of the husband's departure, was far advanced in pregnancy and on the eve of confinement as the result of an intimacy with an officer of the British army, and that, taking advantage of the opportunity afforded by the husband's visit to America, she absented herself from their residence and went to a house in another part of Paris, where for a period of six weeks she remained with this officer, as husband and wife, and where, during that time, viz., June 18, 1880, she gave birth to an illegitimate child, whom, after supporting for a number of years, she finally deserted; the child so born being the present petitioner. The husband, as already stated, returned to his wife and family in the fall of 1880, and from that time the marital relation continued without interruption until the wife's death, in January, 1897. What became of their little son during the six weeks that the wife is thus alleged to have abandoned him is not stated or explained. "The testimony in the case shows, without contradiction, that the husband and wife lived together, not only in the same house, but in the same apartment; and why, therefore, there should have been any reason thus paid; the charge, as the daughter vehemently asserts, having been false and the mother a perjurer. for concealing from the husband (assuming | appropriating to her own use the money that it was possible to have kept him in ignorance of the wife's pregnancy) and from the world the birth of a child, it is difficult to imagine. 'Pater est quem nuptiæ demonstrant.' And the presumption that the husband, under the circumstances of this case, who was not simply 'infra quatuor maria' but 'infra quatuor moenia,' was the father of any child who might be born, by the wife, was a conclusive one-so conclusive, indeed, that even the sworn testimony of the wife would have been insufficient to overcome it. Dennison v. Page, 29 Pa. 420, 72 Am. Dec. 644. Conceding, however, the possibility of a motive for concealment, and the fact that the husband, who was the undoubted father of her two acknowledged children, was not, and must have known that he was not, the father of a child to which she might give birth in June, 1880, the course alleged to have been taken to effect concealment was still more extraordinary than even the desire to conceal at all. The decedent was an American woman, of prominent social position, and, as it would seem, well known as such to the Parisian public generally, and especially to other Americans residing in that city; yet, as alleged by the petitioner, one of the first steps taken, in the plan to conceal her disgrace, was to call in, during the period of her confinement and while she was living as the wife of an officer in the British army, an American physician. It need scarcely be added that this physician was one who has since died. The next of these extraordinary steps was the public baptism of this illegitimate child in a Catholic church; neither of the adulterous parents being Catholic, but both of them appearing at the ceremony and avowing their relationship. But still more extraordinary is the assertion that, in order to procure the services, as godfather, of an intimate friend of the father, the mother unbosomed to him, he being a Catholic, and told him, what was wholly unnecessary that he should know, of the birth of the child, its paternity, the employment of the American doctor, etc. This gentleman, who appears to be the deus ex machina of the petitioner's drama, declares that he was greatly astonished at the announcement, as he had not the least suspicion of such a condition of affairs, though he had seen his informant only a short time before they happened; and he gives as a reason for this remarkable confidence that the two Irish women, mother and daughter, who had agreed, in consideration of the payment of a large monthly sum, to take care of the child, were devout Catholics, and might give up their bargain unless there should be a baptism thus solemnized. Of these two women, it may be added, the daughter, who is still living, admits that at a subsequent period she was sent to prison upon a charge by the mother that she was 63 A.-4 "The gentleman who thus became godfather goes on to state that the decedent afterwards deposited with certain English bankers funds for the support of the child; the deposit having been effected through the agency of a letter, signed by her, which he prepared for the purpose. A very remarkable feature of this letter, which was produced, is the fact that the depositor, forgetting that her name, as well as her assumed name, was 'Anna,' describes herself in the letter, and so signs it, as ‘Mary'; while the handwriting of the signature not only bears no resemblance, discoverable to the ordinary eye, to that of the decedent, but is declared by some of the experts who were examined to be identical with that of the body of the instrument, which was written by the godfather himself. At a still later date, when, as he says, the mother's love for the child, which had been intense, had so completely ended that she no longer made remittances for its support, the god father's influence with the bankers-who had never seen the depositor-was such that he was permitted to draw the balance standing to the credit of 'Mary Somerset,' without communication with her, and send it to the Irish caretakers. About the same time, he also testifies, the mother positively refused to do anything further for the child's support, and declared that application must be made to the relatives of the father, which, of course, necessarily involved the making public of the facts which she had, according to the witness, been always theretofore so solicitous to conceal. With regard to the testimony of this witness, so far as it is based upon admissions alleged to have been made to him by the decedent, what was said by Judge Coulter, in Harbold's Executors v. Kuntz, 16 Pa. 210, may well be applied: 'Admissions-the easiest mode of testimony to lead to error, the kind of evidence most apt to be misapprehended and mistaken, and in relation to which a facile conscience may stretch itself like India rubber.' That his conscience was 'facile' is demonstrated by his own letters, in one of which, apparently in answer to an effort to induce him as godfather to do something for the support of the child, he says, 'Any part that I have had in this business began and ended in the religious ceremony of baptism;' and in another he asserted that he acted as godfather at the earnest request of the father,' and not, as he now states, at the instance of the mother, to aid her in the trouble which she confided to him. He speaks of letters received by him from the decedent in connection with these transactions, but explains his inability to produce any of them by the assertion that after the death, in 1883, of his friend, the British officer, he gave them all to the friend's brother; but the brother, who was examined as a witness on behalf of the petitioner, denies this, and declares that no letters from her ever came to his possession. He admits, however, that there were letters from an English lady, of high social position, between whom and his brother, according to 'gossip,' the relationship' was 'very close,' up to the time of his going to Egypt, where he was killed; and it is within the range of possibility that a desire to screen this lady at the expense of a foreigner in whom he had no interest may have furnished a motive to the godfather, who was an Englishman, also of 'high social position.' In 1890, when there was a likelihood of the petitioner's becoming a charge on the public, the godfather referred inquirers to the decedent. She was then very ill, and communications addressed to her came to her husband. These communications were from a Bow street lawyer on behalf of the Irish caretakers, and the husband, shocked by what was thus brought to his knowledge, and unable to communicate with his wife as to the real facts, was induced to pay a considerable sum of money to suppress a story which, as he then thought, covered himself and his family with disgrace; but soon afterwards, when further demands were made on him, when, it is fair to believe, the wife had sufficiently recovered to make him acquainted with the real facts, he declared, in a letter addressed to this lawyer, 'As to the persons who now, taking exception to the settlement concluded with you, suggest an appeal to me, I will say that, had I possessed a month ago the data now in my hands and for the collection of which some time was necessary, I would not have paid them one penny. If they apply to me in France I am determined to make it a matter of summary police correctionelle.' This defiance to a lawyer, having in his possession all the information now presented to the court, was in September, 1890; and there the matter rested, without any action whatever, until May, 1899, when the present petition was presented, more than two years after the death of the decedent, and nearly two years after the death of her husband. "It has often been said that a claim of right not asserted as a legal demand until after the death of the party affected by it, although upon the claimant's own showing it originated and matured many years before, comes before the court-and especially the court established for the protection of those no longer able to protect themselves-discredited on its face, and with every presumption against it; and this applies with increased force where the claim, repudiated in the lifetime of a decedent, not only involves a large portion of the estate, but, if sustained, blasts the decedent's good name, and convicts of the commission of a heinous, most disgraceful crime. A recovery in such a case can only be had upon evidence clear and convincing; the claim must be established by the testimony, free from inconsistency or contradiction, of witnesses whose veracity is unimpeachable; and the circumstances must be such as to be inconsistent with any other explanation and leave no rational doubt of the justice of the claim. To doubt as to such a claim must necessarily be to deny. It is enough to say that the testimony in support of the claim in the present case is not of this character, and that, apart from inherent, manifest improbabilities, the witnesses contradict themselves and each other; this being especially noticeable in the case of the leading witnesses relied on to establish the claim. The daughter of the Irish woman declares that the father and mother of the child came almost daily, in the years 1880, 1881, 1882, and 1883; and William Kelly (Father Matthew), who was introduced to the mother and actually saw her 'nursing the baby' in 1880, tells how freely and openly she talked to him in 1883, when she and the father were about to start 'on a voyage around the world.' Yet the godfather speaks of her dread of discovery, and of his going with her three times during the years mentioned, because she was 'afraid to go.' A janitor, Royer, who says he saw the mother several times in 1882 or 1883, and 17 years afterwards is able to identify her by a photograph, is contradicted by his own written statement. Another janitor, Rivey, janitor of the building in which the child was born, who at times saw the mother in 1880, during the month in which she was confined, is able to identify her after the lapse of 20 years. He declares that the two Irish women, mother and daughter, came there for the child; the mother going upstairs and carrying the baby in her arms, leaving in a cab, while the parents remained until 3 or 4 in the afternoon; but the daughter swears that the child was brought to them, in their apartment, by the father, who gave it to her, and toat the father and mother 'always said it was born in England.' The daughter also swears that the Bow street lawyer asked her to employ him, which he denies and declares to be untrue. He admits, however, that he deceived his clients, that he acted for both parties, and finally, after having undertaken, in the most solemn manner, not to act further in the matter, that he broke his engagement, and, after the death of the decedent and her husband, renewed his connection with the petitioner. He also swears that the godfather, Mr. Petre, told him who the mother was, while the latter swears that he did not. Mr. Petre gives a dramatic account of a trouble which occurred at the baptism because of the unwillingness of the priest to permit the mother to sign for the absent godmother, because that would be 'illegal'; but the priest himself, Father Cassabianca, tells us that such signing would be entirely proper; the same thing being also said by Father Matthew. Madame Theophile Vielletet swore that she saw the baptismal party-the nurse and child, god. mother and godfather, and a lady and gentleman, 'said to be the father and mother'; but, on finding that she had fixed the time three years too late, she said, quite unconcernedly: 'I did not affirm that it was the baptism of the little one. Miss Redmond did not tell me. People said it in the neighborhood. Perhaps it was the baptism of another child in the house.' The testimony of Miss Redmond is so saturated with contradiction and prevarication that the mere reading of it is sufficient to show its utter unreliability. "In cases of this character, discrepancies, even as to seemingly trifling matters, have always been regarded as significant. A notable illustration is reported in a book of very high authority. Apocrypha, Hist. Susanna, chap. 1. When opposed to all this is the testimony of the numerous witnesses on behalf of the respondents, which, if believed, and there seems to be no reason to doubt it, proves that the decedent could not possibly have been the mother of this child, we can have no hesitation in declaring that the petition to vacate the decree confirming the adjudication, and permit the petitioner or his assignee to participate in the distribution of the decedent's estate, must be dismissed." Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. Gustavus Remak, Jr., and Alex. Simpson, Jr., for appellant. John G. Johnson, for appellees. PER CURIAM. The decree is affirmed, on the opinions of the court below. (213 Pa. 415) FIDELITY TITLE & TRUST CO. et al. v. ILLINOIS LIFE INS. CO. (Supreme Court of Pennsylvania. Jan. 2, 1906.) 1. INSURANCE-ACTION ON POLICY-EVIDENCE. A policy of life insurance had the following notice on the face: "See copy of application inside, and if errors or omissions are found therein note the same, and return the same to the company for correction." The policy offered in evidence contained no application. The evidence was to the effect that it was omitted by mistake. There was an express averment in the statement of claim that the copy of the policy filed was a true copy, and that the insured had performed all the covenants of the instrument. The affidavit of defense alleged fraudulent misrepresentation, but did not deny that the policy was the entire contract. Held, that the policy was properly admitted in evidence. [Ed. Note. For cases in point, see vol. 28, Cent. Dig. Insurance, § 1675.] 2. PLEADING-ADMISSIONS-CONCLUSIVENESS. Where a policy of life insurance provided that a payment by the insured of the first premium while in good health should be a condition precedent, the admission by defendant of facts set out in the statement that insured had performed all things on his part to be fulfilled precluded an objection that such payment had not been made. [Ed. Note. For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 82, 270, 271; vol. 20, Cent. Dig. Evidence, § 1036.] In an action on a life insurance policy, the verdict on conflicting evidence as to whether insured at the time of taking out the policy was affected with a mortal disease will not be disturbed. [Ed Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3935.] Appeal from Court of Common Pleas, Allegheny County. Actions by the Fidelity Title & Trust Company, as guardian of Gladys L. White and others, and by Jennie E. White, against the Illinois Life Insurance Company. The actions were tried together. From judgments for plaintiffs, defendant appeals. Affirmed. At the trial plaintiff made the following offer: In the case at No. 387, February term, 1903, counsel for plaintiffs offer in evidence the averments of the plaintiffs' statement not denied by the affidavit of defense, to wit: That William J. White, deceased, took out a policy of insurance in the Illinois Life Insurance Company, on October, 15, 1900, in the sum of $5,000; that the premiums on this policy were duly paid up to the time of said William J. White's death, on November 6, 1902; that proofs of loss were duly made to the defendant company of said death, and said policy has not been paid. Mr. Ferguson: The offer is objected to in so far as it relates to the policy, for the reason, first, that the policy produced does not contain a copy of the application attached to it, although the application is referred to upon the face of the policy as attached, and no explanation is proposed to be given as to why the application is absent. The Court: I do not understand the offer to include the policy. The offer is simply that the decedent took out a policy. Mr. Dalzell: That is right. We are simply offering in evidence so much of the affidavit of claim as is not specifically denied by the affidavit of defense. The Court: You are not offering the policy. Mr. Dalzell: No. There is nothing in either the affidavit of defense or the supplemental affidavit of defense that raises the question as to the application. Mr. Ferguson: If the offer as made is as |