Childress v. Cutter, 16 Mo. 24

Childress v. Cutter

16 Mo. 24 | Mo. | 1852

Scott, Judge,

delivered the opinion of the court.

1. It was maintained in argument by the appellants (defendants below,) that by the marriage contract between J. B. Vifvarenne and Genevieve Cardinal, she, the wife, took an interest of one half in the land in question, absolutely. By the Spanish law, which prevailed here at the time of this marriage, by mere operation of law, without any stipulation or agreement, a community or partnership was established between husband and wife of all their estate, both real and personal., At the dissolution of this partnership by death, after the payment of the debts incurred during its existence, the survivor took back the property he or she had at the time of marriage, and the share of the deceased went to his or her heirs. If it was real estate, it was taken in kind, and in value, if personal estate. By the custom of Paris, or French law, as it is called, a like community was created with regard to the personal estate of the husband and wife ; but the real estate owned by either party, at the celebration of the marriage, did not enter into the community. The words of the contract of marriage, that “ the said future spouses shall be one and common in all goods movable and acquisitions immovable, according to the ancient custom established in this province,” if interpreted according to their literal acceptation, create no community with respect to lands owned at the celebration of the marriage. They contain the sense and meaning of the “ ancient custom,” and must be construed in reference to it. The 220th article of the Custom of Paris says, “ que homme et femme conjoints ensemble par mariage, sont communs en Mens meubles et coriquets immeubles faits dnrant le *42mariage.” If they contracted with reference to the custom of Paris, and if, by that custom, immovables owned at the time of the celebration of the marriage did not enter into the community, the ground is not perceived on which those words can be construed as a stipulation that such lands should be divided as partnership property, at the dissolution of the community. It was certainly competent for the parties to make such an agreement, but, to say that it was done, we must maintain that they made a contract contrary to that which they declared they were making.

2. Another stipulation in the contract is, that the said future spouses take each other, with their property and the rights now actually belonging to them, and also those which may fall to or appertain to them, as well by inheritance, donation, legacy, or otherwise, which property, in whatsoever manner and from whatsoever source it may accrue, shall wholly enter into and become a portion of the aforementioned and agreed upon community of property, without any reservation. By the custom of Paris, “ Toas les immeubles, que les conjoinls possédent avant la celebration du mariage, soil propres soit acquets n’entrent point en communauté, sinon pour la jouissance ; mais les acquisitions dHmmeubles faites devant le mariage y entrent.” Law of Notaries, 1 vol., 246-7. As the mar* riage contract was made with an eye to the custom of Paris, and as by that custom lands owned by the parties at the celebration of the marriage did not enter into community, the words “ which property,” in the above clause of the marital contract, must be understood as applicable only to that which came to them during the marriage. The argument, which has been made in relation to the other words of the contract, applies to the clause now under consideration. Under this view of the subject, on the dissolution of the community, by the death of J. B. Vifvarenne, the entire lot in controversy descended to his heirs.

3. By the Spanish law, which formerly prevailed here, if a person, who marries a second time, has children of his or her *43preceding marriage, be or sbe cannot, in any manner, dispose of tbe property given or bequeathed to bim or ber by tbe deceased spouse, or wbicb came to bim or ber from a brother or sister of any of tbe children wbicb remained. This property, by tbe second marriage, becomes tbe property of tbe children of tbe preceding marriage, and tbe spouse who marries again only has tbe usufruct of it. But if tbe children and their forced heirs die before their parents, tbe property so inherited by them belongs to tbe surviving parent. Lablanc v. Landry. 7 Mar. Lou. N. S. 665.

4. An exception to this rule was created in favor of women becoming widows before tbe age of majority, which was twenty-five years, although they should marry a second time. Duncan’s Ex. v. Hampton, 6 Martin’s La. Rep. N. S. 31. The general rule being against second marriages, on principle, the-widow must show herself within tbe exception. This rule is of universal application in criminal and civil cases, and no reason, is perceived wbicb exempts this widow from its operation. Even in drawing an indictment of a capital offence, an exception not in tbe enacting clause of a statute need not be negatived, but tbe party relying upon it must show himself entitled to its protection. Numberless other instances might be enumerated, but this is deemed sufficient.

5. By tbe ancient Spanish law of succession, wbicb once-prevailed here, where there were no descendants, tbe ascendants were preferred to tbe collaterals. Tbe father and mother succeeded to their child in preference to brothers and sisters or other collaterals. 2 Cond. Lou. Rep. 380. 2 Partidas, 1099, 1100.

Under tbe Spanish law, illegitimate children could not inherit the estate of their fathers or grandfathers, nor other relations descending from them. 1 Partidas, 551.

The twelfth section of the act 4th July, 1807, enacts, that there shall be no distinction in the distribution of any intestate’s estate, between kindred of the whole or half blood, unless when the inheritance came to the said person so seized by descent, *44demise, or gift, of some one of Ms or her ancestors, in which case all those who are not of the blood of such ancestors shall be excluded from such inheritance.

Louis Vifvarenne dying in 1813, and having received the land by descent, from his father, his estate, under this law, descended to his blood on the part of the father. The law intended that the estate should continue in Ms blood from whom it was originally derived. Brothers of the half blood being nearer in degree than uncles and aunts on the part of the .mother, and they being excluded, there can be no pretence in ssaying that maternal uncles and aunts are let into the inheritance. They are no more of the blood of the father, J. B. Vif-varenne, than the brothers and sisters of half blood on the part of the mother ; and to maintain that they should inherit, when brothers of the half blood were excluded, would overturn all our notions of the canons of descent. Besides, by the fourteenth section of the act last recited, brothers and sisters are preferred to any kindred more remote than they are. If more children than one survived their father, Vifvarenne, and died before their mother, his inheritance would descend to her, if she became a widow under twenty-five years of age; otherwise, she would only have the usufruct of it during her life, and on her death it would go to her son by Vifvarenne, because it came by descent from his father.

6. It may be taken as an established principle of law, that a certified copy of any record or public paper, by the officer entrusted with its custody, is evidence, if the original would be. Copies of the registries of marriages, births, and burials, are evidence of what they purport to record : namely, that certain persons, there described, were married, born, or buried, at a particular time or place, but they are not evidence of any other facts inserted in them, as of the time or place of the birth of an infant. 2 Phil. 284. An entry in a register of christenings, stating the year of the birth, is not evidence in support of a plea of infancy; and the mere entry of christening, unaccompanied by any evidence showing that the person was young at the time *45of christening, does not prove the fact of birth in the parish. 1 Phil. 410. So Greenleaf, speaking of entries made in discharge of official duty, says, that, to be admissible, they must be such as it was the person’s duty to make, or which belonged to the transaction as part thereof, or which was its usual and proper concomitant. They must speak only to those things which it was his business or duty to do, and not to extraneous and foreign circumstances. Section 115.

We are not familiar with the old Spanish law with respect to the inventory, appraisement, and sale of the effects of deceased persons. Under our law, the mention of the wife and children would be unnecessary and irrelevant. But these official acts, preserved, as they have been, would seem to be evidence of what was required under the Spanish law. We may presume, that the officers under that law acted as they were required, where it does not appear to the contrary. United States v. Percheman, 7 Pet. Rep. 51. If so, there would be no violation of the principles above stated, in receiving them as evidence of the facts stated in the fifth and eleventh instructions of the defendant below. As letters testamentary are evidence of the death of the intestate, there would seem to be no impropriety in permitting the inventory and appraisement, under the Spanish law, to have the same effect.

7. With regard to the certificate of the burial of Louis, there is more difficulty. In England, where there is an established church, recognized by law, which had authority to legislate with respect to parochial registers of births, deaths, &c., the domestic registers of that kingdom, made and preserved by the clergy of the established religion, were deemed authentic, and copies of them, duly proved, were always admissible. But registers kept by dissenters were not deemed authentic; nor were foreign registers so treated, unless the law was shown which authorized them. In this state, where there is no religion established by law, all church registers, like those of the dissenters in England, and foreigners, are unauthentic and not regarded as public documents in our courts. This would seem to be the principle when uninfluenced by statute. In order to *46give in evidence an examined copy or certified extract from a foreign register, it would appear to be necessary to prove that the register is, according to the law of the country, a document of an authentic and public nature. Hubback on Evidence of Succession. Dissenters’ registers and the registers of burials in a foreign convent were rejected, when offered in evidence of the death of a person. Ib. 161. The act of 17th January, 1831, is the first which makes registers of births, &c., kept in pursuance of the rules and ordinances of the churches and religious societies in this state, evidence. We do not see, upon reference to our books of reports, that any question arose as to the admissibility of registers before the passage of this act. The authenticity of registers kept in Louisiaua, by the Catholic church, is not shown. We should presume the law to be, in that state, as it would be here without any statutory enactment, as she has no church established by law. It is true, that the priest of the parish of St. Landry testified that the church enjoins the keeping of such registers, but still it does not appear that they are recognized as authentic by the civil law of the country. An act of the 10th April, 1811, requires the judge of the parish to keep a register of births and deaths, and prescribes what they shall contain. Bullard & Catry’s Dig. 1 vol. 44.

It seems that the admissibility of the facts recited in these registers, should depend upon the terms of the authority by which they are required to be kept. The question upon them will be, what facts are required to be stated? In this case, the priest testified, that it is required by the rules of the Catholic church, that the parentage of the deceased should be stated in the register of deaths. So, the act above cited, of the territory of Louisiana of the 10th April, 1811, directs that the records shall contain, as far as the same maybe ascertained, the Christian names, profession, and residence of the father and mother of the deceased, and the place of his or her birth. From the testimony in the cause, it would appear that the same requirements are exacted by the Catholic church from the priests in that state.

In every parish in Spain, the vicar or curate, or if there be *47none, the rector, is charged with the care of the parochial archives. The register of deaths contains the name, age, birthplace and parentage of the deceased; the day of death, place of residence, whether married or single, and to whom married, and whether testate or intestate. Hiibbaek, 520. In France, the registration of births, deaths, and marriages is committed to the civil power, and great care is taken to insure the accuracy of these records. The entries contain more particulars than are required in most other countries. Ibid.

8. The ground is not perceived on which this certificate is admissible as evidence of pedigree. It may be conceded, that death, marriage, birth of a child, dates of these events, age, legitimacy, relationship generally, are provable by hearsay, on questions of pedigree. So, the recitals of these facts in family deeds may be evidence on such questions. Hubback, 649. Ibid, 69. Hearsay, admitted as evidence in questions of pedigree, must proceed from relatives. Ibid, 652. Greenleaf, 108-4. Evidence of the declarations of a clergyman, as to the fact of marriage, has been held to be admissible ; so of those of midwife. Hub. 655-6.

The first instruction of the plaintiff below did not state the Spanish law correctly, in saying that the widow should restore the inheritance to the children of the first husband living at the time of such second marriage, because, by that law, the widow had the usufruct of the inheritance during her life, notwithstanding her second marriage. It -is not perceived, however, in what manner this error could affect the verdict. The error seems to have been an immaterial one, as the usufruct for life of.the widow ceased, by reason of her death, in November, 1792.

The court should not have given the third instruction asked by the plaintiff below, nor have refused the fifth, sixth, and eleventh asked by the defendants.

Judge Ryland concurring, the judgment of the court below is reversed, and the cause remanded. Judge Gamble not sitting in the cause.