WEEKLY NOTES OF CASES.

VOL. XV.] THURSDAY, NOV. 6, 1884.

Supreme Court.

[No. 13.

of Hannah Nicely, deceased, and Samuel Rothermel, heir of Maria Rothermel, deceased, to recover the undivided one-third part of a tract of 231 acres of land in Maxatawny Township.

On the trial, before SASSAMAN, J., the following facts appeared: In the year 1794 title to the tract in question was in Baltzer Geehr. In 1801 he died intestate, and the land descended to his two sons, Jacob and John Geehr. In 1810 or thereabouts, John conveyed part of the farm, and afterwards the rest of it to his brother Jacob, and in 1823 died unmarried, intestate, and withEvidence-Hearsay-Pedigree-Declarations-out issue. Jacob died in 1853 intestate, leaving Records-Church records-Mortgages-Iden- to survive him two daughters, Mary, who was tity of name-Practice.

Jan. '84, 299.

Sitler et al. v. Gehr.

March 7, 1884.

In an action of ejectment where the issue is whether the plaintiff is related to the person who last died seised of the premises in dispute, declarations of deceased persons, admittedly relatives of the plaintiff, are inadmissible to establish the relationship in question, unless there is some evidence aliunde to prove that the declarants were related to the person dying seised. It need not be shown, however, that they belong to his branch of the family.

It is the province of the Court to decide in a case like the above whether sufficient connection has been established to permit the declarations to go to a jury.

In the present case the plaintiff testified that he was named after the person who had last died seised of the premises in dispute, who was his uncle, and that his

married to Jacob Hoffman, and Catherine. Mrs. Hoffman and her husband died intestate and without issue, and the whole tract was thus vested in Catherine or Kitty, as she was commonly called, who died in 1877 intestate, unmarried, and without issue. Upon her death the line of lineal descendants became extinct, and it became necessary to ascend the line to Baltzer Geehr the father of Jacob, the perquisitor. Baltzer Geehr had married Catherine Yeager, whose brother Frederick had, among other children, Hannah, who married one Nicely, and Maria, who married one Rothermel, who, as next of kin, claimed the tract in question. After mother informed him of the fact. Declarations of cerseveral trials in ejectment title was finally held tain deceased relatives of the plaintiff were then offered in to be in the latter, who shortly afterwards died, evidence to establish the above relationship. The Court and the defendants as their representatives began Held, that the plaintiff was a competent witness to estab-proceedings in partition for the purpose of selllish the connection between the different branches of the ing the property and distributing the proceeds of family, and that this being established, the declarations the sale. After partition had been made, but were admissible in evidence. before the sale of the property, a new claimant appeared in the person of the plaintiff, Baltzer Gehr, of Crawford County, who claimed to be the only surviving son of Joseph Gehr, of Crawford County, who was the brother of Baltzer Geehr, of Berks County. The plaintiff claimed, as next of kin, in the same degree of relationship with the defendants, one undivided third part of the tract in question.

admitted the evidence:

Conclusions drawn from a conversation of two living persons are inadmissible in evidence on a question of pedigree.

A record of deaths and burials kept by the pastor of a church is admissible in evidence only to show the deaths and burials; where the pastor has also made entries as to the birth and parentage of the parties dying, these are not admissible in evidence, as it was no part of the pastor's duty to make such entries.

Mere identity of name is not even prima facie evidence of identity of person where the transactions are remote. A mortgage given 140 years before suit brought by a per

son of a certain name is therefore inadmissible in evidence

to prove that a certain person of that name then resided in the same locality as the land upon which the mortgage was given, in the absence of any evidence to establish identity.

On a question of pedigree, wills, deeds, mortgages, and other documents executed by parties bearing the same name as the parties to the suit, and containing recitals as to relationship are inadmissible in evidence, in the absence of proof that the parties executing them were relations of the parties to the suit.

Error to the Common Pleas of Berks County. Ejectment, by Baltzer Gehr against David Sitler, terre tenant, and George F. Miller and Amanda his wife, in right of said wife, devisee

The plaintiff, having shown by the witness, Solomon Gehr, that John Gehr, the father-in-law of the witness, was a nephew of the plaintiff, proposed to prove by the witness declarations by the said John Gehr as to the relationship between Baltzer Gehr, the plaintiff, and Baltzer Geehr, of Berks County, having also proved that said John Gehr was dead. Objected to on the ground that while hearsay testimony is allowable to prove pedigree and relationship, it is only such hearsay as is within the rules of evidence governing its admission, which the present offer is not, and that before such declarations can be admitted, it must be proven by evidence aliunde to the satisfaction of the Court that John Gehr was a member of the family of Baltzer Geehr of Berks County.

The admission of hearsay evi- | The defendant offered in evidence a book in dence in cases of this kind which could not be which Dr. Knoske, the pastor of the Kutztown sustained upon any other class of testimony has opened a very wide door. It is difficult to say just exactly where the line of demarcation should be drawn between hearsay admissible and inadmissible. For the purposes of this trial the objections are overruled and offer admitted. Exception. (1st assignment of error.)

assigning for error the admission of the plain- The law in regard to proof of identity is well tiff's offers of evidence, and the refusal of de-settled and fully warranted the admission of the fendants' offers, as above. mortgage. Identity of name is prima facie evidence of personal identity.

While it is admitted that the essential rules in regard to the admissibility of declarations as to The declarations of a deceased person, who is pedigree have been complied with, i. e. (1) That related to a family by marriage, are admissible the declarations be made ante motam litem; (2) to prove family pedigree, including those who That the declarant be dead; (3) That the decompose the family. But before such declara-clarant be related to the family about which the tions can be admitted the relationship of the declarations are made, yet it is contended that declarant to the family must be proved by other

because it was not shown aliunde that the de-Ja wife in regard to her husband, rest upon subclarants were of the family of the Berks County stantially the same principles as those of a relation Baltzer Gehr. The evidence was admitted and by blood, and these cases do not throw much bill sealed for the defendants. light upon the question we are considering.

The rules of evidence applicable to pedigree cases are: 1. That the statements must be made ante litem motam. 2. Declarant must be dead. And 3. But a prior condition to both these is, that it should be proved by some source of evidence independent of the statement itself, that the person making the statement is related to the family about which he speaks. (Smith v. Tebbitt, L. R. 1 P. & M. 354.)

Doe dem. Jenkins v. Davies (59 E. C. L. R. 314) cited by plaintiff in error, was an action of ejectment, and the vital question in the case was, whether Elizabeth Jenkins was legitimate; if she was it was admitted the verdict must be for defendant. After the plaintiff had offered evidence to show that E. J. was not legitimate, an attorney produced a certificate of the marriage of Eleanor Diller to John Davies, the father of It was not denied that the first two conditions E. J., and stated that he had received it from had been fulfilled. Neither was it questioned E. J. when he was inquiring into the pedigree. that the declarants were shown by evidence He was then asked whether E. J. made any dehors the declaration to be related to the family statement regarding her mother's marriage; the of Joseph Gehr, the ancestor of the plaintiff, question was objected to upon various grounds: but it was contended that the declarants must be 1. That she was not yet conclusively proved to shown by evidence aliunde to be related to Baltzer Gehr, of Berks County; in other words, to the person last seised of the estate, or his particular branch of the family. To state the question in another form: the declarants were Anna Maria Gehr and John Gehr; the plaintiffs' ancestor was Joseph Gehr; the deceased ancestor was Baltzer Gehr, of Berks County. It was not denied that the declarants were of the family of Joseph Gehr, and it was attempted to show by their declarations that the above named Joseph Gehr and Baltzer Gehr were related to each. The question was, whether sufficient ground had been laid for such declarations.

be a member of the family; and 2. That the question whether E. J. was a member of the family was in fact the issue for the jury, and if she was decided to be legitimate her declarations to prove her legitimacy were superfluous. It was held by Lord DENMAN, in regard to the first objection, that it was the duty of the Judge to decide whether it was proved to him, and he decided that it was; and as to the second objection, he answered it by saying: "Neither the admissibility nor the effect of the evidence is altered by the accident that the fact which is for the Judge as a condition precedent is the same fact which is for the jury in the issue." Here the declarant was not shown aliunde to be a member of the family, her declaration tended to make her so.

The plaintiffs in error contend, not only that the declarants must be shown by evidence aliunde to be related to the family as to which the declarations were made, but also that they must Blackburn v. Crawford (3 Wall. 185), cited by also be thus shown to be related to the person plaintiffs in error, does not sustain their contenwho died seised. The first part of this proposition. In this case the question was, whether tion is undoubtedly true under all the authorities; Dr. Crawford had been married to Elizabeth the latter portion of it is not so clear. I have Taylor. The plaintiffs claimed to be his nieces carefully examined all the authorities cited on and nephews. To prove this relationship they both sides upon this point, and many others to offered the declaration of one Sarah Evans, who which our attention was not called upon the was a sister of Elizabeth Taylor. The evidence argument, and although there is some conflict was held incompetent because she did not belong in the cases the weight of authority seems to be to the family. The question was who were Dr. that while a declarant must be shown by evidence Crawford's heirs. It was said by Mr. Justice aliunde to belong to the family, it does not ap- SWAYNE, in delivering the opinion of the Court: pear to be necessary to show that he belongs to "If it had been proved by independent testimony the same branch of it. In Vowles v. Young (13 that Sarah Evans was related by blood to any Vesey, 147) it was held that the declarations of branch of the family of David Crawford, and a deceased husband concerning the descent or her declaration had been offered to prove the pedigree of his wife are admissible. And in relationship of another person claiming or Jewell v. Jewell (1 Howard, 219) that the claimed to belong also to that family, this case declarations of a deceased husband of one of (Monkton v. Attorney-General, 2 Rus. & M. the plaintiffs claiming as heir of her father, that 157) would have been in point. But this his wife was not married to her father, were declaration of Sarah Evans offered to prove that admitted. her sister was connected by marriage with a member of that family, was neither within the principle nor the language of that authority."

It would seem, however, that the declaration of a husband in regard to his wife's family, or of

Monkton v. The Attorney-General, referred | ceased persons who had no interest and who were to by Justice SWAYNE, will be commented upon later in this opinion.

Attorney-General v. Kohler (House of Lords' Cases, vol. 9, page 653), we regard as authority against the position assumed by the plaintiffs. There the issue was the right of succession to the estate of one George Keylor, an officer of artillery, who died intestate. The claims of the respondents depended upon their establishing the identity of the intestate with one George Frederick Koehler, which they offered to do by the declarations of Johann Jacob Koehler, an uncle of George Frederick Koehler. It having been established that the declarant was the uncle of George Frederick Koehler, his declarations were admitted as to the pedigree of George Frederick Koehler and the events of his early life, tracing him into the artillery service and identifying him with George Keylor, the intestate. It will be noticed in this case that there was no evidence aliunde to show that Johann Jacob Koehler, the declarant, was related to George Keylor, the artilleryman. It was shown, however, that he belonged to a branch of the family.

relatives. Gregory v. Baugh (4 Randolph, 611) is principally a review of all the laws concerning Indian slavery in the State of Virginia, and it was held that in questions of freedom, evidence that there had been a belief in the neighborhood, more than fifty or sixty years before, that the female ancestor of the plaintiff was entitled to her freedom, was not admissible. Whitelocke v. Baker (13 Vesey, 514) was a case of partition, and it was merely ruled that the tradition must be from persons having such connection with the parties to whom it relates that it is natural and likely from their domestic habits and connections that they are speaking the truth, and that they could not be mistaken.

Many of the above authorities were not cited by the plaintiffs in error. Most of them are, however, referred to in the authorities they rely upon, and I have gone over them, at the risk of being tedious, in order to ascertain just what they decide. It will be seen that those of them which bear upon this question at all do not go beyond the admitted principle, that before declarations of deceased persons can be received In Chapman v. Chapman (2 Conn. 347) the in questions of pedigree, the declarant must be witness did not name the person whose declara-shown aliunde to be related to some branch of tion he had sworn to, nor did it even appear that the declarant was dead. It was properly held that the evidence was inadmissible.

the family as to which the declarations are offered. The whole question is thus summed up by Mr. Wharton, in his work on Evidence, In Davies v. Morgan (1 Crompton & Jervis, page 216: "Declarations as to a family in order 587) it was ruled that declarations of deceased to be received must emanate from deceased percorporators were evidence of a custom to exclude sons connected with such family by blood or foreigners. But it was not shown that the de-marriage." The same rule is laid down in most clarant was a member of the corporation. In of the approved text-books. (See Phillips on Doe v. Randall (2 M. & P. 20) it was held that Ev., § 275; Taylor on Ev., 576.) The last case declarations of a party connected by marriage to which I shall refer is that of Monkton v. Atare admissible. Casey v. O'Shaunessy (7 Jurist, torney-General (2 Rus. & M. 157), where it was 1140) was an attempt to prove declarations of a said by Lord BROUGHAM: "I entirely agree, that Catholic priest as to the legitimacy of the parties. in order to admit hearsay evidence in pedigree, It was not contended that he was related to any you must by evidence dehors the declarations of the parties, and his declarations were only to connect the person making them with the family. the effect that the parties had always been reputed But I cannot go the length of holding that you to be husband and wife in his parish. In John- must prove him to be connected with both the son v. Lawson (2 Bing. 86) it was held that branches of the family, touching which his dedeclarations of servants and intimate acquaint- claration is tendered. That he is connected with ances are not admissible evidence in questions of the family is sufficient; and that connection pedigree. Crease v. Barrett (1 C. M. & R. once proved, his declarations are then let in upon Exch. R. 919) involved a question of custom, questions touching that family; not declarations in which it was held that "declarations of a of details which would not be evidence, but dedeceased lord of the manor as to the extent of clarations of the nature of pedigree; that is to his rights over the wastes of a manor are not say, of who was related to whom, by what links admissible; aliter if spoken of the extent of the the relationship was made out, whether it was a waste only." In Jackson v. Browner (18 Johns. relationship of consanguinity or of affinity only, 37) the witnesses were not connected with the when the parties died, or whether they are acfamily and had no personal knowledge of the fact tually dead; everything, in short, which is, of which they spoke, and did not derive their strictly speaking, matter of pedigree, may be information from persons connected with the proved as matter relating to the condition of the family. Waldron v. Tuttle (4 N. H. 371) family, by the declarations of deceased persons, merely confines the rule to declarations of de- | who by evidence dehors those declarations, have