31 Miss. 367 | Miss. | 1856
delivered the opinion of the court.
The appellees filed their petition in the court of Probate of Hinds county, praying distribution of the estate of William Cargill deceased. They claimed one-half of the estate; and alleged that they were the brother and sister, and children of his deceased sisters. It was admitted by all the parties that William Cargill died on the 12th of November, 1843, intestate and childless, leaving a widow. Administration was granted on his estate to the widow, Mrs. Cecilia Cargill, John M. Greaves and P. M. Garrett. In their answer to the petition of the appellees, these parties averred that they did not know whether the petitioners were the legal distributees of their intestate or not; and required strict proof of their heirship. An issue to try the question whether the petitioners were, as next of kin, entitled to distribution of the intestate’s estate, was ordered and sent for trial to the Circuit Court of said county. The issue was determined by the jury in favor of
The appellees, as alleged in their petition, are the brother and sister, and the children of the deceased sisters of the whole blood, of the intestate. The question whether the appellees were the next of kin of the deceased, and as such entitled to distribution of his estate, depended, necessarily, upon the fact of their legitimacy, which could only be established by proving that a legal marriage existed between Thomas Cargill and Demarias Cargill, alleged to be the immediate and common ancestors of the intestate, and the appellees.
On the trial of the issue no documentary evidence, direct, as to the fact of marriage, and no witness was examined by whom it was proved directly, that a marriage had taken place between the alleged father and mother of the parties. But the fact that a marriage had been legally consummated between them was attempted to be established, by evidence that they lived and cohabited as husband and wife, for a period of more than thirty years; that during this time they recognized each other as husband and wife; and were recognized as such by their immediate family connexions; that during the same period the appellees, or their mothers (the deceased sisters of the intestate) were born; as well as the intestate himself; and were treated, recognized, and reared as their legitimate children; that the appellees, or their mothers, were recognized and treated by the intestate as his brother and sister; by proof that many years after the birth of the youngest of her children, the mother of the parties, in her bill in chancery for a maintenance, filed against their reputed father, and sworn to by her, alleged that a marriage had been legally solemnized between the complainant and defendant; that they lived together as husband and wife, from the date of the marriage, for a period of more than thirty-five years; and that during the time of their cohabitation, they had born to them many children, six of whom were then
In all cases, except in actions of mm. eon., and prosecutions for bigamy, the fact of marriage may be established by evidence of the acts and declarations of the parties, by proof of the general repute in the family, and by proof of the declarations of deceased persons, who were related to them by blood or marriage. It will therefore not be contested, that the evidence for the petitioners which was allowed to go to the jury, was sufficient if uncontradicted, to prove the fact of a legal marriage between Thomas and Demarias Cargill; and of consequence sufficient to prove the legitimacy of thffir offspring.
On the other side, it is insisted that the evidence establishes, conclusively, the illegitimacy of the children of Demarias Cargill,. and consequently, that the issue should have been decided adversely to the petitioners.
It is not our purpose to examine in detail the voluminous testimony in the cause, and by a minute comparison of the evidence adduced by the respective parties to determine the degree of preponderance which exists. We deem it sufficient" to announce, after a careful examination, that in our opinion, the verdict is sustained by the greater weight of evidence.
We will next examine the questions arising upon the exceptions of the appellant to the admission and rejection of evidence on the trial. And first, we will notice the objections to the admission of evidence.
The deposition of Elizabeth Cargill was offered in evidence and objected to, but the objection was overruled, and the deposition was read to the jury.
Several reasons were urged in the argument, at bar, in support of this exception. These reasons are, that the certificate of the commissioner does not state that the deposition was signed by the witness; that it does not state that the answers to the several interrogatories were read to the witness, and approved by her; that it does not appear that the witness was legally sworn; and that it does not appear, from the caption of the deposition, in what cause or from what court the commission was issued.
In Doe ex dem. Martin v. King’s Heirs, where the commissioner «certified that the witness was “duly sworn,” it was held, by this court, to be equivalent to a statement that the witness was sworn agreeably to the directions of the law. The court say, “ the commissioner being an officer of the court, the presumption is to be indulged that he acted in conformity to the law.” 3 How- 125. And in Wellborn v. Younger, .it was said that “ where a magistrate certifies, on a deposition taken under the authority of a commissioner, that the witness was sworn, a presumption arises, prima facie, that he was duly sworn, according to the forms and cererno.nies of law.” .3 Hawk. (N. C.) R. 207.
In the case under consideration, it is stated in the certificate of the commissioner, “that the witness being sworn, deposeth and saith, that the answers as written out to the foregoing interrogatories and cross-interrogatories, are correct and true.” It is also stated that the deposition was “sworn to” before the commissioner. The objection, therefore, that the deposition was not sworn to according to law, is untenable. 3 MfLean, R. 94.
The objection that the deposition does not appear, from the certificate, to have been read to, and approved by the witness, is also unfounded.
In the introduction or caption of the deposition, it is stated that -the witness personally appeared and severally answered certain interrogatories and cross-interrogatories as propounded .by the respective counsel,.&c., “in a pertain case as stated in the commencement of the foregoing interrogatories.” By reference to the interrogatories appended to the commission which issued to take the deposition of this witness, and which were returned annexed to the deposition, no doubt can exist either as to the court whence .the commission was issued, or as to the cause in which the deposition of the witness was taken. This is all that the law required. This, the last objection to the deposition, is therefore without.any foundation whatever.
The next exception which we shall consider, applies to-the deposition of Milby Rogers.
It is objected to this deposition', that it is recited in the caption, that a commission “issued out of the Probate Court,” whereas, the commission to which the deposition is annexed, issued out of the ¡Circuit Court.
This objection .is .based upon what appears to be a.clerical misr rprision. By the addition of the letter (d) to .the word (issue,) in the second clause of the caption, it is made to designate the court whence the commission issued, instead of the court from which the issue was sent. But if it were considered that there was no mistake, in our opinion, no valid objection on that ground can be made to the deposition. The question is one of fact.; whether a commission issued from the Circuit Court of Hinds county, to take the deposition of the witness; and whether, by virtue of such commission, the deposition was taken and returned. The caption states expressly that the deposition was taken by virtue, of a commission
The deposition shows upon the face of it, that each of the interrogatories annexed to the commission was propounded to, and answered by the witness. And the certificate shows that the deposition was sworn to and subscribed by her. There is, therefore, no force in the objection, that it did not appear that the witness was sworn to make “ true answers to all the interrogatories.”
The deposition was certified by the commissioner, without attaching a seal to his signature. This is made the ground of the last objection to this deposition.
The statute of this State prescribes no form in which the depositions of persons, residing beyond her jurisdiction, shall be certified to our courts; but directs that they shall be certified by the commissioner taking them, according to the laws, usages, and customs of the country, State, or territory, in which they are taken. We are not informed, whether, according to the law of the State of Georgia, where this deposition was taken, the seal of the commissioner, attached to his signature, is essential to the validity of his acts. The question must therefore be determined without reference to any statutory provision on the subject. And looking at it as a subject in regard to which no rule has been laid down by legislative authority, we are unable to perceive any reason why a seal should be held requisite to the validity of the commissioner’s certificate. Unofficial persons, and persons holding offices, to which no official seal is attached, are frequently, in fact most generally, appointed commissioners to take depositions. In such cases, it is manifest, that no useful or valuable purpose could be effected by requiring a scrawl or the private seal of the party to be affixed to the signature. It would certainly not add additional solemnity to the
The petitioners offered in evidence a certified transcript of the bill and answer thereto, in a suit in chancery, brought by Mrs. Demarias Cargill against Thomas Cargill, for a divorce and maintenance. To the reading of which the respondant objected, but the objection was overruled. This action of the court constitutes the subject of the next exception.
Three reasons were assigned in support of the objection. First. That it did not appear from the certificate, that the transcript offered in evidence “ was a full and complete transcript of the record of said suit.” Second. It related to matters between persons not parties to this suit; and, Third. That the bill was filed during the last illness of the intestate; and the answer not until after the pending controversy had arisen.
The copy of the bill and answer was offered by the petitioners, for the purpose of proving the declarations and admissions of Thomas and Demarias Cargill, in relation to their alleged marriage. These, or similar statements and admissions of the parties, unless made subsequent to the commencement of this controversy, were unquestionably competent evidence in the cause to prove the fact of their marriage. Hence, it is not to be questioned, that they were properly provable by a certified copy of the record, although the persons interested in this controversy were not parties to that suit.
The bill and answer were the only part of the record which concerned the matter in question; and consequently all that could
What we have above'said, disposes of the first and second exceptions taken to the introductions of this evidence. And we proceed tb consider the third objection.
The bill in question was filed by Demarias Cargill, against her alleged husband, on the 22d'of July, 1843. The intestate, although in-bad'health, was then living, and did not die until the 12th of November following. His whole property was subject to any testamentary disposition which he might choose to make of it; and it'is-unnecessary to say that it could not have been known either when he would die, or whether he would or not make any disposition of his estate, which would supersede the statute of distribution. Nothing was then said'or thought of, so far1 as it is shown by the evidence, about an expected controversy in regard to his estate, in which his own legitimacy, and that of his brother and sister, would be involved. There is, therefore, no pretence for the assertion that the suit of Mrs. Cargill, brought ostensibly for a' maintenance, was, in reality, instituted- for the purpose of proving that a marriage had been legally solemnized between Thomas Cargill and herself, with a view to affect the rights of any party to this contest.
But the answer of Thomas Cargill was not' filed until the 23d of April, 1844; some months after the intestate’s death. And the question is made whether the admissions in the answer of the truth of the allegations of the bill, in regard to the marriage, should not have been excluded, on the ground that they were' statements or admissions made post litem motam.
The petition for a distribution of the intestate’s estate, was filed-on the 29th of July, 1845. The respondents, one of whom, as we have seen, was- the widow of the intestate, in their answer to the petition, say, they do not know whether the petitioners “ are the
Whence these doubts originated; or upon what- they were’ founded; whether upon the supposed illegitimacy of the intestate of the petitioners, or those through- whom they claimed, or- upon the fact that there were other persons supposed to be the nearest of kin, is not stated in their answer. And it maybe a circumstance of some importance in the consideration of the question,-that the answer contains no statement touching the illegitimacy of- any. party concerned.
The proofs do not show at what time the idea was first entertained of contesting the claim of the petitioners, upon the ground that either the petitioners or the intestate were of spurious birth; The evidence is, however, clear, that some months after the intestate’s death, his widow, the only person-who could have the smallest-possible pecuniary interest, in bastardiz-ing her husband, or his brother and sister, recognized one of the petitioners as- the brother of the' decedent, and as a distributee of his estate, and' paid him a portion of his share of the estate, before he could demand a distribution. These acts of the party most interested,, clearly and conclusively excludes the supposition, that there then existed either an actual contest or an anticipated controversy, in regard to the property of the intestate, which involved the illegality of the connection which had subsisted between Thomas and Demarias Cargill, and the consequent illegitimacy of the intestate, as well as the petitioners;
The transcript of Thomas Cargill’s • answer, as we have before shown, was competent evidence for the purpose intended, unless it were shown to have been filed subsequently to the commencement of this controversy. The onus, therefore, lay upon the respondents, who made the objection, to establish the conditions upon
If, therefore, it were conceded that the allegations and statements in reference to the marriage of Thomas and Demarias Car-gill, contained in their bill and answer, are not in their nature original evidence of the fact of marriage, but strictly of the character of hearsay, and therefore only admissible under an exception to the general rule, which excludes all hearsay evidence, we are clearly of opinion, that the court did not err in allowing the evidence to go to the jury.
At a former trial of this cause before the Circuit Court of Hinds county, Moore, Bankston, Coker, Long, M‘Mann and others, were examined as witnesses for the petitioners. Their testimony was taken down in writing, and recorded by order of the court. On the last trial, certain portions of the evidence thus reduced to writing, were read to the jury without objection on either side. It is now insisted, that the admission of this evidence was improper and illegal. It is unnecessary for us to express any opinion upon this question. The objections now urged should have been made when the evidence was offered. Having failed to do this, the party complaining cannot now be heard. It has been uniformly held, that the introduction of illegal evidence, if unobjected to, is no ground for a new trial.
Having noticed the objections made to the ruling of the court in reference to evidence offered by the petitioners, we will next consider the exceptions taken to its action in the exclusion of testimony produced by the respondents.
The respondent offered to read in evidence the deposition of Nancy Griffith; to the reading of which the petitioners objected. The objection was sustained, and the deposition ruled out.
There can be no doubt of the propriety of this decision. The interrogatories were addressed, and the commission issued to take the deposition of Nancy Griffin. The commissioner took and certified the examination of Nancy Griffith. These are distinct and
Certain answers to cross-interrogatories propounded to Aleey Bankton, Ellison Gross, John Price, Hardy Strickland, and several other witnesses, whose depositions were taken in behalf of the petitioners, were, upon the objections of petitioners, ruled out and excluded from the jury.
And the answers to certain direct interrogatories propounded to John Robinson, C. E. Walthal, Ellender Hollander, Mary Calloway, Samuel Clark, John Jones, and many other witnesses, whose depositions were taken for the respondent, were also, upon the motion of the petitioners, ruled out.
The action of the court in rejecting these answers of the witnesses referred to, is made the ground of the next exception which we propose to examine.
The answers of the numerous witnesses or the separate items of testimony thus excluded, are too numerous and voluminous to be noticed in detail, even if it were more necessary to a proper understanding of the legal questions which arise upon the ruling of the court in the premises. But in order to a sufficient comprehension of these questions, we will state the object and general character of the excluded evidence.
The subject to which the whole of the evidence ruled out had reference, was the question, whether Thomas and Demarias Car-gill, who lived together, were in fact legally married. The evidence under consideration was designed to disprove the fact of marriage, and thus to counteract the evidence in chief adduced by the petitioners, tending to prove the existence of a marriage between these parties, which was strictly limited to proof of cohabitation; to proof of their conduct towards, and treatment of each other; and to proof of the repute in which they were held by their family connexions.
Regarding the excluded testimony of the respondent, in reference to the question of marriage, in the most favorable light in which it could be looked at, it amounted to evidence that reports
The question to be decided is, whether, in a case of pedigree, where the fact of the marriage of the ancestors of the party is put at issue, evidence of this character is competent to disprove the marriage.
The term pedigree, embraces not only descent and relationship, but also the facts of birth, marriage, and death; and it is sometimes said that general reputation is admissible to prove the fact of the marriage of the parties alluded to, even in eases where pedigree is not in question. Some of the cases cited in support of this doctrine are Birt v. Barlow, 1 Doug. 171; Doe v. Fleming, 4 Bing. 267; Hammock v. Bromon, 5 Day, 290; Hervey v. Hervey, 2 Wm. Blacks. R. 877. In these cases, and, as it is said by Greenleaf, in all the other cases cited in support of this principle, “ the evidence produced cannot properly be called hearsay evidence, but was strictly and truly original evidence of facts from which the marriage might well be inferred.” We have not hád access to all of the cases cited in the elementary books, or referred to by the reports in support of this doctrine; but however true it may be, that, according to some of the adjudged cases, the fact of a contested marriage may be proved by general reputation, it seems now to be settled, that the principle upon which the law resorts to hearsay evidence in cases of pedigree, is “ the interest of the declarants in the person from whom the descent is made out, and their consequent interest in knowing the connexions of the family.” And hence the rule of admission is restricted to the declarations of deceased persons, who were related by blood or marriage to the person, and therefore interested in the succession in question.” And under this rule it is held, that general repute in the family may be proved by the testimony of a surviving member of it.” Greenleaf, Ev. 119, § 103, and cases cited; Rex v. Eriswell, 3 Term. R. 307; Gregory v. Baugh, 4 Ran. 711.
If we apply this rule to the question under consideration, the conclusion is unavoidable that the evidence was properly rejected.
We will close this investigation by a notice of the exceptions taken to the charges given at the instance of the petitioners.
The first, third and fourth instructions are objected to. They are as follows: — First. “ Proof that a man and woman lived together as husband and wife, if not rebutted, is conclusive evidence of their marriage.” Third. “ Counter declarations made by such a man and woman, except such as are made under circumstances of peculiar seriousness and solemnity, will not suffice to overturn such presumptions of a marriage; much less will circumstances in the conduct of the parties which merely excite suspicion that no marriage was celebrated;” and Fourth. “Declarations of deceased members of a family are evidence to show relationship and pedigree; reputation in the family is evidence to prove relationship, and pedigree; but the jury must disregard all proof of neighborhood reputation, reports and rumors, as to the non-existence of such, marriage, relationship, and pedigree.”
We perceive no objection to the first instruction. Proof that a man and woman cohabited as husband and wife, is evidence from which a court or jury might infer the existence of a marriage between them; and if unrebutted, would necessarily be conclusive. But if this instruction were conceded to be erroneous, for the reason that too great weight is given to the legal présumption arising from the fact of cohabitation, the error is cured by the third instruction given for the respondent. It is- as follows:— “ Although it is true that marriage may be legally inferred from cohabitation and reputation, yet, if it appear from the evidence that the acts of the parties were inconsistent with the relationship of husband and wife, and that there was no general reputation recognizing them as such, then the legal inference of a marriage does not arise.” These charges, taken in connection, state the rule of
Tbe rule laid down by tbe third instruction is clearly tbe law. Where tbe facts stated in tbe preceding instruction, to which this one refers, are proved, tbe law presumes tbe existence of a legal marriage in all cases, except in prosecutions for bigamy, and in cases of erim. eon. And it is settled, by authority, that tbe conduct of tbe parties which only excites a suspicion of the non-existence of tbe marriage, or declarations against tbe marriage, unless deliberately and solemnly made, will not rebut this presumption. Hervey v. Hervey, above cited; Matthews, Presump. Ev. 284, 285; Bull. Nisi Prius, 112.
Wbaf we have above said, in reference to tbe incompetency of the evidence offered by tbe respondent, and ruled out by tbe court, dispenses with tbe necessity of any comment upon tbe exception taken to tbe fourth instruction.
We have examined, minutely and deliberately, every question raised in tbe argument at bar. Our investigation has convinced us that no error, prejudicial to tbe appellant, was committed on tbe trial of tbe issue. This case was before us on a former occasion, when tbe decree was reversed, and tbe verdict rendered, as it is now, for tbe petitioners, was set aside, and a new trial awarded; for error committed in tbe introduction of evidence. After two verdicts for tbe same party, tbe case should be a very clear one, in which a new trial would be awarded, upon tbe sole ground of the preponderance of evidence against the verdict. In this case, there was a conflict in tbe evidence, and for that reason we should not reverse the decree on tbe motion for a new trial, even if there was, in our opinion, a preponderance of tbe evidence in favor of tbe appellant; but, as we have above stated, tbe verdict is sustained by tbe greater weight of evidence.
Decree affirmed.