7 Gill 247 | Md. | 1848
delivered the opinion of this court.
Pearce and wife, by their petition to the orphans court of Baltimore county, represent, that, Vincent K. Copes, the administrator of John G. Copes, deceased, had settled all debts due to, and from the estate, of which he is the administrator, and that there remained in his hands a large amount for distribution ; that in right of the wife, as half-sister of the deceased, .they are entitled to a distributive share of said estate, and pray the court to order the administrator to distribute the balance .among the parties entitled.
The administrator, (who is a full brother of the deceased,) in answer to the petition, puts the petitioners to proof of Mrs. Pearce being next of kin; and further claims a large amount to be due him from the estate, which amount would, in a great degree, exhaust the balance in hand.
The administrator, in the course of his administration, and before the petition was filed in this cause, had presented to the orphans court, for its sanction, the account which is now the subject of controversy, the claims under whieh may be classed and specified as follows:
1. For money lent, $159.50.
2. For balance due on an alleged partnership, between the intestate and his administrator, as survivor of John G. & Copes Co., and M. V. K. Copes & Co., $883.49.
3. For a balance of wages, as clerk to the intestate in a grocery store, $83.33.
4. For bricks furnished to the deceased, and for a balance due at brick-yard, after the partnership (in making bricks) had ceased, $36.19.
5. For commissions on sales of brick for the deceased, and collections upon sales made by the deceased himself, subsequent to the partnership, $262.49.
6. For attendance of administrator’s wife upon the deceased, $20.
To this account, (amounting to $1445.15,) there is attached the probat, in the usual form, by Vincent K. Capes, the creditor; and the probat then further certifies, “that at the same time appeared James Carney, and made oath on the holy
This is the character of the testimony, upon which the appellant relied in the first instance, before the orphans court, and the account was, of course, rejected.
The claim being thus repelled, the appellant sought to establish the several items of the account, by producing the books of the intestate in evidence, and by other testimony of witnesses, which is too voluminous to permit even an abstract; but having had the careful revision of the court, (separating what is illegal and incompetent from the mass,) we shall recur to, in such particulars, as are requisite and necessary in connection with the opinion here expressed.
The orphans court upon this testimony, disallowed the whole claim of the appellant, rejecting every item, and directed the administrator, (the appellant,) to make distribution of the estate of his intestate, remaining in his hands, among the parties entitled thereto, and from this order the present appeal is taken.
The claim upon the alleged partnership accounts, although not the first in order, seems to be the first in importance and amount. The parties wTere both brick makers in the city of Baltimore, and the operations of the intestate were carried on in two distinct brick-yards, between the years 1836 and 1840, until abandoned for a time1 in the latter year, when the intestate became engaged in the grocery business, from which the appellant deduces another claim for hire and service as clerk. It may be gathered from the testimony, that a partnership of some sort subsisted between the parties, by the declarations of the intestate, made to several of the witnesses. But when it commenced, during what period it was to continue, whether it related to one or both of the brick-yards, or what were its terms, are left uncertain. No particular period is assigned to this partnership by any witness. The declarations of the intestate produced in evidence, were in 1837, ’38 and ’39. The appellant himself has located it between the 6th of April 1838, and the 27th of February 1839, and upon this assumption an account has been stated between the parties, by Stephen Lawson, an
The boobs produced are six in number. There is no evidence that they are the books of a partnership. On the con
To support the first items in appellant’s account for moneys loaned, the intestate’s cash book is produced shewing the entries to that effect. It is rather singular that there should be an hiatus in this cash account from Aptil 1838, to April 1839, the very period assigned for the partnership, and that it is manifestly produced by the abstraction of one or more leaves from the book. The debits include the sums of §100, and $28, as borrowed from the appellant, and charged now as the first items in his present account; and the whole debits on the page added up, are said to be “carried over” — no credits appear after the 16th of April ’38, and the continuation of the account, no where appears. Peyton Rose a bookbinder, to whom the book is shewn, “concludes that the book is not perfect, and thinks from the appearance at that place, that the sheet has been taken out, because that section shews it has not as many sheets as the other; without counting it, when the book is closed.” But another new book of similar form and dimension, just purchased from a book-store, is produced, by Henry Baehler, a witness for the occasion, and is found to have the same precise defect; and is of course used to repel the guilty presumption as regards the other. We think it unsatisfactory from Baehler’s own account of his agency in the
An examination of Lawson's account, further discloses, that the appellant does not appear to have paid anything into the concern; and proceeds upon the assumption, ihsXJohn wound up the business, and received all the money of the fian. And yet, this is distinctly negatived by a witness of the appellant, Joseph Sanks. He says “be became acquainted with John Copes in 1840, when he bought out Gordon's grocery store. Vincent wras then settling up the business of John's brick-yard. John then stated that Vincent was in partnership with him in the brick business, and voas then settling it up."
Here then the onus is on the appellant in 1840, at the close of the partnership; and we may presume safely that it was not permitted to remain unsettled until the death of the partner, with such a balance as is claimed by the appellant in his favor; particularly as we find him afterwards, (as is inferred from the subsequent charges in bis account,) acting in different subordinate relations t.o the intestate, as his clerk at one time, and as his salesman and collector at another.
And further to sustain this conclusion, that these and other matters of account were settled between the brothers, before the death of John, we have the concurrent declarations of both parties in confirmation of it. Samuel Hamer says, that the intestate told him about a year before his death, “that he did not owe a dollar in the world, ’ ’ that “he did his business accord
The whole pretence is at variance with any theory that can be set up in the appellant’s favor by a resort to the books of the intestate, as we find them; and is, in our opinion equally fatal to his subsequent charges in the account for commissions on sales and collections. That he was also in the employ of the intestate, some time in 1844, is in evidence. In what character only appears from the testimony of the several persons named in his account, to whom he either sold and delivered bricks, or collected the amount when sold by John; and upon which the commissions are charged that make up the residue of his claim against the estate. One item, selected
On the 28th December 1844, the balance of the stock of bricks (121,225) is sold to Phillips; and we take his account of it as we find it in the evidence. “He first made a proposition to John Gopes (the intestate,) for a purchase,of all the bricks then in the yard. The proposition was not accepted. Then made a second proposition to him in presence of Vincent. This was accepted by both parties. At this time Vincent was attending more or less to John’s business, and it was understood he was to c.ount the bricks as John was unable to attend to the business of the yard from sickness. He always considered himself dealing with John Copes. The bricks were counted by witness and Vincent, in one day, as he thinks, from 10 A. M., to 3 or 4 P. M. The counting he considered the delivery.” For this day’s work we have the charge in this account of 10 per cent commission, being $92.55, and 25 cents per thousand for the delivery, $30.30, making together the sum of $122.85; and the rate and charge of commission is the same upon the remaining items; while the previous work done in the employ of his brother, and settled in his lifetime, appears to have been at the rate of $1.11 per day. In the cases of sales to Allwine, Phoebus and others, from an examination of their testimony, the bargain and purchase appears to be made from intestate, occasionly with, and at other times without, the agency of Vincent. In recurring further to the sale’s book of the deceased, it will be seen that the accounts of Kenny, Jenkins, Sisco, and so on, upon which the commissions for collections are charged in this account of appellant’s, are all marked, “closed by the deceased.” How closed, and for what purposes, we are left to infer. It is of course an entry after the death; and not a word of explanation is offered to shew by whom; except, from the fact that the books are produced by the administrator, (the appellant.) The very first account in the sales book, page I, is an account with Major “F. Copes,” in which may be found the credit of bricks proved to have been furnished by him for the intestate, while he stands charged with others to counterbalance this item. Then follow the accounts said (o
The next question is, whether the said appellees, in right of Elizabeth the wife, are entitled to share in the distribution of the estate? /She claims to be the half-sister of the intestate, by a former marriage of Giles L. Copes, the father, and by the answer of defendant, not admitting or denying it, is put upon the proof of the fact. Sarah A. Copes, the last wife and widow of Giles is produced, and says: “That she often hpard Giles speak of being married to Mrs. Pearce’s mother, as his first wife, and of the children pf that marriage, of whom Betsy was the youngest of three; and that he was married in Accomac county, Virginia. That his first wife died, after three or four years, and he married the second, with whom he lived between twenty and thirty years;” and she speaks of her
Some evidence was produced designed to weaken the force of these declarations, by giving to Mrs. Pearce the relation of foster-child and sister,-in the family. But it is purely argumentative, and in no view can be considered as impeaching, contradicting, or weakening, the testimony of the other witnesses.
At first view we should have held these declarations as amply sufficient to establish the legitimacy of the claim of Elizabeth Pearce, but that it is strenuously insisted by counsel: “that co-habitation must be first shown, to raise the inference of marriage; and that the authorities do not sanction the admission of declarations to prove, per se, not only the issue, but the marriage.” We have examined the cases cited for this doctrine, and can come to no such conclusion. Buller’s N. P., 294, 112. 4 Camp. N. P. C., 401. Cowper, 593. Co-habitation alone, proved between parties as man and wife, is sufficient to raise the presumption of legal marriage, when the parties have been long dead. 2 Ph. Ev., 286. It may not be possible, from the nature of the case, to supply additional proof. If there are any declarations of the parties besides, as to their being or not being married, these are afterwards to be used, to strengthen or weaken the presumption arising from their co-habitation; This is the meaning conveyed by Butter and by Philips-.- The claim of legitimacy will be found to be based upon co-habitation, as the first proof offered, not the first required. See the case in Butter N. P., page 112, and Wilson vs. Mitchell, 3 Camp., 393; coverture being the defence set up in the case And the Berkeley peerage, case warrants no such doctrine, as it was cited to sustain. Lord Mansfield, (page 415,) expressly says: “In matters of pedigree, it being
The rule which emphatically embraces this case, is distinctly laid down in all the elementary writers on evidence, without' any such qualification as is contended for.
“ The declarations of a deceased person, as to the fact of his marriage, or to prove that a child was born before or after marriage, are admissible in evidence on a question of pedigree;” and even “the declarations of deceased members of the family'/ whether relations or connections by marriage,-are admissible evidence to prove relationships, deaths or marriages.” 2 Ph. Ev., 284, 287. “ The term pedigree embraces, not only descent and relationship,-but also the facts of'birth, marriages and' death, and the times when these events happen.” Greenl. Ev., 117. — See, also, page 116. And it is therefore clear, that these authorities fully sanction the admission of the declarations of the answer, to prove, per se, not Only the issue but the marriage.
The declarations of Giles Copes Eire full: and explicit, with regard to his marriage, and the birth of Elizabeth, the appellee; and his whole subsequent conduct, and the course and bearing of the brothers, is an entire corrobdratidn of them. Nothing short of actual proof of marriage and birth, by witnesses actually present,-could be more convincing Etnd conclusive; and we therefore affirm the right Of the appellees to a distributive share of the personal estate of the intestate.
decree affirmed.