76 Me. 306 | Me. | 1884
This is an appeal from a decree of the judge of probate, wherein he ordered a distribution of an intestate estate and adjudged, against the claim of the appellant, that he was not the natural son of the intestate, but was the legitimate son of the intestate’s sister.
At the trial of the issue it appeared inter alia that the appellant was born in Steubenville, Ohio, and was brought up there in the family of the intestate’s sister, in which also the intestate resided at the time of the appellant’s birth and for several years thereafter. The appellant tendered the " declaration of Mary Northrop (the intestate’s sister) relative to the birth and parentage of John A. Northrop, ” the appellant. What the specific declarations were, the bill of exception fails to disclose. It is sufficiently general to include declarations that the appellant was the lawful son of the declarant, which was claimed by the appellee. The admissibility of such a declaration would not be successfully challenged under any known rule of evidence. For the practice in such cases seems to be that some evidence of the requisite relationship (though the exact degree may not be essential perhaps, Vowles v. Young, 13 Ves. 140) dehors the declarations must be shown before they can be admitted, Fuller v. Randall, 2 Moore & P. 24; Plant v. Taylor, 7 Hurl. & Nor. 237; Gee v. Ward, 7 E. & B. 514. And this evidence is primarily addressed to the presiding justice, who, before admitting the declarations, must be satisfied that a prima facie case of the requisite relationship has been made out. Jenkins v. Davis, 10 Q. B. 313, 322; Hitchins v. Eardley, L. R. 2 P. & D. 248. And the facts shown, the birth, place of birth, the bringing up and the name of the appellant, are ample prima facie evidence of relationship to warrant the admission of[ the declaration mentioned. 4 Camp. 416; Viall v. Smith, 6 R. I. 417. Still there is some apparent discrepancy in the practice. Blackburn v. Crawford, 3 Wall. 175; Jewell v. Jewell, 1 How. 219, 231; Alexander v. Chamberlain, 1 Thomp. & Cook ( N. Y. Sup. Ct. ) 600.
But the appellant could not be aggrieved by the exclusion of a declaration which would disprove his claim and his exception for such an exclusion could not therefore be sustained.
Yet, considering the appellant’s claim together with the facts.
All of the authorities seem to concur in holding that while her declarations would be competent to show the appellant to be her own illegitimate son, born before her marriage, yet under a rule founded, as Lord Mansfield said, "in decency, morality and policy, ” her declarations would not be allowed to prove her own son illegitimate if born in wedlock. Goodright v. Moss, Cowp. 591; 1 Greenl. Ev. § § 253, 344; Haddock v. B. & M. Railroad, 3 Allen, 300; Abington v. Duxbury, 105 Mass. 287. Can her declarations be admitted to show the illegitimacy of her unmarried sister’s son born and brought up in her own family ? This involves no bastardizing of her own issue.
Formerly the declarations of servants, physicians and intimate friends have been admitted at nisi prius in the English courts. But in Johnson v. Lawson, 2 Bing. 86, the court unanimously rejected- the declarations of a deceased housekeeper. Best, C. J., remarked that the admission of evidence in such cases must be subject to some limits ; limiting declarants to relatives connected by blood or marriage afforded a certain and intelligible rule; and if that were passed, an almost endless inquiry as to the degree of intimacy between the family and the declarant might be involved. Since that decision, all modern authorities exclude declarations coming from neighbors, intimate acquaintances, etc. of the family, as being mere hearsay evidence. Vowles v. Young, 13 Ves. 147; Whitelocke v. Baker, 13 Ves. 514; Jackson v. Browner, 18 Johns, 37, 39. It has, therefore, ¡become a universally recognized exception to the general rule
Lord Ch. Eldon said such declarations " are admissible upon the principle that they are the natural effusions of a party who speaks upon an occasion when his mind stands in an even position without any temptation to exceed or fall short of the truth, . . that they must be from persons having such connection with the party to whom they relate, that it is natural and likely, from their domestic habits and connections, that they are speaking the truth and cannot be mistaken. ”
Lord Ch. Erskine declared that the " law resorts to hearsay evidence of relations upon the principle of interest in the person from whom the descent is to be made out. ” Vowles v. Young, supra. This view was adopted by Prof. Greenleaf. 1 Greenl. Ev. § 103. And Mr. Taylor sums up the authorities by declaring such declarations admissible coming from such sources, as relatives " may be supposed to have the greatest interest in seeking, the best opportunities for obtaining, and the least reason for falsifying, information on the subject. ” 1 Taylor, Ev. § 571. Do not the qualifications of Mrs. Northrop come fully up to these requisitions ?
In Goodright v. Moss, Cowp. 571, the declarations of parents were held admissible, after their decease, to prove that their son was born before their marriage and was therefore illegitimate ; and this case is not questioned on this point in Berkley, Peerage, case 4, Camp, 401,
In Haddock v. B. & Maine Railroad, supra, a mother’s declarations were admitted to prove the illegitimacy of her daughter by showing that the mother was never married.
So, where the question was whether the plaintiff’s mother was the legitimate child of the ancestor, whose land was in dispute and the record showed the latter’s marriage at a certain date, the ancestor’s declaration — that "unless he made a will, Louisa (plaintiff’s mother) could get nothing,” — was held competent to go to the jury on the question of her illegitimacy. Viall v. Smith, 6 R. I. 417. See also Barnum v. Barnum, 42 Md. 251, 304.
It would seem, therefore, that the declarations of the intestate would be admissible to show that the appellant was her illegitimate son; and if the mother’s declarations would be, why would not be those of the mother’s sister, in whose family the child was born and brought up, and in which the mother lived at the time and for years after ?
It is urged that there are some English authorities which somewhat tend otherwise.
In Bamford v. Barton, 2 Moo. and R. 28, where one K. died seized of land, leaving none but illegitimate children, to whom he willed for life, his property with remainder to his own lawful heirs, who brought ejectment claiming the devisees for life to be dead; and to prove it, offered the declarations of one of them, who had since died, to prove the decease of the other, Patterson, J., at nisiprius, held the declarations inadmissible on the ground that the declarant was not, in point of law, a member of the family of his reputed father.” We also entertain the same opinion, and for the same reason.
In Crispin v. Doglioni, 2 S. & Tr. 44, decided in the probate court in England, in 1863, the plaintiff claimed to be the natural son of the intestate. To prove it, he tendered the declarations of a deceased brother of the intestate. Sir C. Creswell, after remarking- there was no case in point, held the declarations inadmissible, saying: " The admissibility of
Exceptions sustained.