107 Ill. 535 | Ill. | 1883
delivered the opinion of the Court:
The motion for a new trial ought to have been sustained. The testimony in the case palpably failed to show that the three grantors in the deeds to plaintiff were the heirs, and only heirs, of Abraham B. Adams. Facts involved in a question of pedigree may be established by proof of general reputation in the family, or by proof of what deceased members of the family have said. From the necessity of the case hearsay evidence of certain kinds is admissible in establishing matters of pedigree, and this because it is the best evidence of which the nature of the case admits. What has been said by deceased members of the family is admissible, upon the presumption that as such members they knew, from general repute in the family, the facts of which they speak. Now, while such a presumption as to thediusband of a grandchild of the intestate may, under some circumstances, prevail, still when, on cross-examination, it is shown that two of the children of the ■ intestate are living, and within the reach of the process of the court, it will not do to say that the testimony of such a witness shall be deemed sufficient where he shows he has no personal knowledge on the subject, and fails to show a general reputation in the family in support of what he had heard, and merely says he learned so and so from conversations with his wife and her relatives. Such conversations may have been such in extent and variety, and may have been held under such circumstances, as to enable a witness to say that such was the reputation in the family, but such conversations may not have been. such. The witness surely could not be permitted to swear to any specific thing which his wife, or either of her uncles, had said in his hearing, because they are all living, and their sworn testimony is better than their unsworn statements. It follows, the witness can not properly be allowed to state his conclusion from such unsworn statements, unless all of them taken together, with their surroundings, enable him to say such was the accepted state of the case in the family, or such was the uncontradicted repute in the family.
Again, while the witness says Abraham B. Adams had three children, (Enoch, Alfred and Sarah,) he nowhere says, distinctly, that these were his only children; and while he undertakes,' in speaking of Sarah, the aunt of his wife, who died many years before the witness knew the Adams family at all, to say she left only one child, who is still living, and the wife of one A. B. Pate, he n'owhere tells the given name of that child, or shows that she was the Adelaide B. Pate who made the deed to plaintiff. If it be true that the several grantors in these three deeds were really the only heirs at law, it can readily be proven by these three living witnesses. While the witness produced is a relative of deceased (Adams) by marriage, yet his own testimony shows that his association with the family was so slight that the presumption arising from that relation of his knowledge on the subject is entirely rebutted by his own statements. For this reason, if for no other, the judgment ought to be reversed, and another trial had.
The judgment is reversed and the cause remanded.
Judgment reversed.
