37 S.C. 19 | S.C. | 1892
The opinion of the court was delivered by
Some time in September, 1885, one William Eobb, late of the city of Charleston, departed this life, having first duly made and executed his last will and testament. By his will he disposes of his property as
The escheator named in the title of this case, under the allegation that the said William Robb had died leaving no person who could lawfully claim his property either by descent or purchase, instituted proceedings for the escheat of said property, and in due time the appellant, Jean Robb Muir, traversed the inquisition of escheat, and this traverse came on to be tried before his honor, Judge Wallace, and a jury. After hearing such of the evidence introduced by the traverser, the appellant herein, as was held to be competent, a motion for a non-suit was made by.the counsel for the escheator, which was granted, upon the ground that there was no evidence tending to show any lawful relationship between the said William Robb and the said Jean Robb Muir. From the judgment of non-suit the traverser appealed upon numerous grounds set out in the record, which we do not deem it necessary to state here, though they may be incorporated in the report of this case. These grounds raise four general questions: 1st. Whether the Circuit Judge erred in rejecting certain testimony, which will be more specifically mentioned, as incompetent. 2d. Whether there was any testimony tending to show that the said Jean Robb Muir was lawfully related to the said William Robb. 3d. If not, whether there was any testimony tending to show that said Jean Robb Muir was the person referred to by the general terms used in the will of William Robb. 4th. Whether in a proceeding like this a judgment of non-suit could, in any event, be properly rendered.
For a better understanding of these questions, it will be necessary to make a general statement of the facts which appellant
When the appellant undertook to testify as to declarations made to her by her alleged parents in regard to the genealogy of the family to which she claimed to belong, her testimony was objected to, and the objection was sustained. The ground upon which this ruling was based seems to be that, before such testimony can be received, it must first be shown that the person whose declarations are sought to be proved was a member of the family to which such declarations relate; and here the judge thought that there was no such preliminary proof. His idea
It is very manifest from the very nature of things that, after a great lapse of time, the same strictness of proof should not be required either as to the admissibility or the effect of the declarations, as would be necessary to establish an ordinary contract. Vowles v. Young, 13 Ves., 143. “In cases of pedigree, therefore, recourse is had to a secondary sort of evidence, the best the nature of the subject will admit, establishing the descent from the only sources that can be had.” In the case of Johnson v. Johnson, 1 DeSaus., 595, recognized and affirmed in Dinkins v. Samuel, 10 Rich., 66, the court said: “That the evidence of legitimacy was very slight, but that the court would presume a marriage after the lapse of thirty years, especially as all the parties were dead; and if a contrary presumption should prevail, it would have the effect of bastardizing a person after his
Now, in this case, it appears that the appellant was permitted to testify, with the qualification that when she used the words grandfather, grandmother, father, mother, uncle, or aunt, they were to be regarded merely as a designation of the persons to whom she referred, and notas any evidence that they bore such a relation to her as those words would imply, to the following-facts substantially, viz: that (her grandfather) William Bobb No. 1 lived at Cause-Head, Scotland; that he is dead; that she frequently visited him at that place before his death, when he would treat her as his grandchild; that she called him “grandfather,” and he spoke to and referred to her as his grandchild; that (her father) William Bobb No. 2, as well as (her brother) William Bobb No. 3, then lived with (her grandfather) William Bobb No. 1; that (her brother) William Bobb No. 3 was treated and spoken of by (her grandfather) William Bobb No. 1 as his grandson, and that he addressed Bobb No. 1 as his grandfather; that (her grandfather) Bobb No. 1 would ask about (her mother)
Mrs. Mary Gentleman testified that she was the daughter of Mary McFarlane, wife of Robert Gentleman, who was the sister of Jean McFarlane; that she knew William Robb No. 3, who was the son of her aunt, Jean McFarlane; that he was born about 1819, while his mother was living at the porter’s lodge, with her parents, James McFarlane and wife, Mary Finlayson (the grandparents of witness); that William Robb No. 2 was always said to be the father of William Robb No. 3; that she never heard it mentioned in the family whether Jean McFarlane and William Robb No. 2 were married or not, and never heard that William Robb No. 3 and Jean Robb were illegitimate children; that William Robb No. 3 lived with witness about four years, and was in the habit of going to see his father and mother and staying from Saturday till Sunday evening; that William Robb No. 3 always recognized appellant as his sister, spent the night with her and her husband before they left Scotland for America, at the house of witness, and made his sister a small present; that subsequently William Robb No. 3 went with his father and Aunt Mary to America; that when he revisited Scotland about twelve years ago, he conversed with witness about his sister, speaking kindly of her, and saying that she was in Utah.
The next witness offered was J. H. Happoldt, who testified that he was very intimate with William Robb No. 3, and was in the habit of visiting him very frequently; and that upon the occasion of one of his visits, on a very hot night, he found said Robb at work, and chiding him for working so hard on such a hot night, saying that he had enough already; to which
Mrs. Janet Drysdale, or Gentleman, was then examined, who testified that she was the widow of John Gentleman, a brother of Mrs. Mary Gentleman, previously examined; that she knew William Robb No. 3, but did not know his sister, Jean Robb, as she had left for America before she became acquainted with William Robb No. 3; that his mother’s name was Jean McFarlane, a sister of her husband’s mother; that William Robb No. 3 was introduced to her by her husband as his cousin; that upon his visit to Scotland, some sixteen years ago, he stayed with her about three weeks; that her husband corresponded with William Robb No. 3 regularly up to the time of his death ; that he spoke very kindly of his sister in his letters; and that she never heard William Robb No. 3 and his sister, Jean Robb, spoken of in her husband’s family as illegitimate children. After this testimony was in, counsel for appellant moved to admit the testimony of Mrs. Jean Robb Muir, as to the declarations of her mother and other of her alleged relatives, previously ruled out, because there was no proof of any family; but the motion was refused, because the Circuit Judge still thought there was no proof of any family.
It is true, as we have said above, that it is for the judge to determine in the first instance the question whether the persons whose declarations are proposed to be offered in evidence were members of the family; but it seems to us that in this case the error lay in requiring stricter proof of that fact than the law requires. After such a lapse of time, nearly seventy years, it caunot be expected that such satisfactory proof can be obtained, as would be required in an ordinary case; especially where, as in this case, the events under investigation occurred in a foreign country, among people who appear to have occupied a lowly station. To insist upon strict proof of the marriage of William Robb No. 2 with Jean McFarlane, as seemed to be the controlling idea in the mind of the Circuit Judge, is more than the law requires. In such a case as this, much must necessarily be left to presumptions drawn from the circumstances testified to, which, of course, are liable to be rebutted by other facts and circumstances appearing in the testimony. Even if there was a want of any testimony to prove the marriage of William Robb No. 2 and Jean McFarlane, in any of the modes recognized by the law, yet that is not, necessarily, conclusive of the question of legitimacy, which is the only issue here; for, as was held in Johnson v. Johnson, 1 DeSaus., 595, supra, that will be presumed upon slight proof, after the lapse of thirty years, especially where all the parties are dead. And in Vaughn v. Rhodes, 2 McCord, 227, supra, the legitimacy of the child was presumed, although there was not only uo legal proof of the marriage of the parents, but there was evidence that the child was understood to be illegitimate, and the mother was shown to be a person of ill fame.
We think, therefore, that there was error in rejecting the testimony hereinbefore referred to, as well as in granting the nón-suit.
The judgment of this court is that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for a new trial.