105 Pa. 577 | Pa. | 1884
delivered the opinion of the court, April 14, 1884.
The first five assignments. of error may be considered together,. They raise the question of the admissibility of the declarations of Anna Maria Gehr and John Gehr upon a question of pedigree. The purpose of offering said declarations was to establish relationship between the plaintiff and Balser Geehr, of Berks county. The evidence was objected to because it was not shown aliunde that the declarants were of the family of the Berks county Balser Geehr. The evidence was admitted and bill sealed for the defendants.
The rules of evidence applicable to pedigree cases are: 1. That the statements must be made ante litem motam. 2. Declarant must be dead. And 3. But a prior condition to both these is, that it should be proved by some source of evidence independent of the statement itself, that the person making the statement is related to the family about which he speaks: Smith v. Tebbitt, L. R., 1 P. & D., 354.
It was not denied that the first two conditions had been fulfilled. Neither was it questioned that the declarants were shown by evidence dehors the declaration to be related to the family of Joseph Gehr, the ancestor of the plaintiff, but it was contended that the declarants must be shown by evidence aliunde to be related -to Balser Geehr, of Berks county; in other words, to the person last seised of the estate, or his particular branch of the family. To state the question in another form: the declarants were Anna Maria Gehr and John Gehr; the plaintiffs’ ancestor was Joseph Gehr; the deceased ancestor was Balser Geehr, of Berks county. It was not denied that the declarants were of the family of Joseph Gehr, and it was attempted to show by their declarations that the above named Joseph Gehr and Balser Geehr were related to each. The question was, whether sufficient ground had been laid for such declarations.
The plaintiffs in error contend, not only that the declarants must be shown by evidence aliunde to be related to the family as to which the declarations were made, but also that they
It would seem, however, that the declarations of a husband in regard to his wife's family, or of a wife in regard to her husband’s, rest upon substantially the same principles as those of a relation by blood, and these cases do not throw much light upon the qrrestion we are considering.
Doe dem. Jenkins v. Davies, 59 E. C. L. R., 314, cited by plaintiff in error, was an action of ejectment, and the vital question in the case was, whether Elizabeth Jenkins was legitimate ; if she was, it was admitted the verdict must be for defendant. After the plaintiff had offered evidence to show that E. J. was not legitimate, an attorney produced a certificate of the marriage of Eleanor Diller to John Davies, the father of E. J., and stated that he had received it from E. J. when he was inquiring into the pedigree. He was then asked whether E. J. made any statement regarding her mother’s marriage; the question was objected to upon various grounds: “ 1. That she was not yet conclusively proved to be a member of the family; and 2. That the question whether E. J. was a member of the family was in fact the issue for the jury, and if she was decided to be legitimate her declarations to prove-her legitimacy were superfluous. It was held by Lord Den-man, in regard to the first objection, that it was the duty of the judge to decide whether it was proved to him, and he decided that it was; and as to the second objection, he answered it by saying: “Neither the admissibility nor the effect of the evidence is altered by the accident that the fact which is for the judge as a condition precedent is the same fact which is for the jury in the issue.” Here the declarant rvas not shown aliunde to be a member of the family; her declaration tended to make her so.
Blackburn v. Crawfords, 3 Wall., 185, also cited by plaintiffs'
Monkton v. The Attorney-General, referred to by Justice Swayne, will be commented upon later in this opinion.
Attorney-General v. Kohler, House of Lords’ Cases, vol. 9, page 653, we regard as authority against the position assumed by the plaintiffs. There the issue was the right of succession fo the estate of one George Keylor, an officer of artillery, who died intestate. The claims of the respondents depended upon their establishing the identity of the intestate with one George Frederick Koehler, which they offered to do by the declarations of Johann Jacob Koehler, an uncle of George Frederick Koehler. It having been established that the declarant was the uncle of George Frederick Koehler, his declarations were admitted as to the pedigree of George Frederick Koehler and the events of his early life, tracing him into the artillery service and identifying him with George Keylor, the intestate. It will be noticed in this case that there was no evidence aliunde to show that Johann Jacob Koehler, the declarant, was related to George Keylor, the artilleryman. It was shown, however, that he belonged to a branch of the family.
In Chapman v. Chapman, 2 Conn., 347, the witness did not name the person whose declaration he had sworn to, nor did it even appear that the declarant was dead. It was properly held that the evidence was inadmissible.
In Davies v. Morgan, 1 Crompton & Jervis, 587, it was ruled that declarations of deceased corporators were evidence of a custom to exclude foreigners. But it was not shown .that the declarant was a member of the corporation. In Doe v. Randall, 2 M. & P., 20, it was held that declarations of a party connected by marriage are a missible. Casey v. O’Shaunessy,
Many of the above authorities were not cited by the plaintiffs in error. Most of them are, however, referred to in the authorities they rely upon, and I have gone over them, at the risk of being tedious, in order to ascertain just what they decide. It will be seen that those of them which bear upon this question at all do not go beyond the admitted principle that before declarations of deceased persons can be received in questions of pedigree, the declarant must be shown aliunde to be related to some branch of the family as to which the declarations are offered. The whole question is thus summed up by Mr. Wharton in his work on Evidence, page 216: “ Declarations as to a family in order to be received must emanate from deceased persons connected with such family by blood or marriage.” The same rule is laid down in most of the approved text books. See Phillips on Ev., § 275; Taylor on Ev., 576. The last case to which I shall refer is that of Monkton v. Attorney-General, 2 Rus. & M., 157, where it was
This case was much relied upon by the defendant in error, and the facts certainly are strikingly similar to those of the case in hand. The decedent, Samuel Troutback, died at Madras in 1785. After reciting in his will that he had no •relation or kindred alive to his knowledge or belief, having outlived them all, he gave “ unto Mr. John Troutbeck, surgeon, late of the ship Speke, in the English East India Com
We now return to the question of the competency of the declarations in this ease. We have already seen that the declarants were related to the plaintiff’s ancestor. They were therefore of his family. The plaintiff’s name was Banker Gehr, and the question was whether he was related to the Balser Geehr of Berks county. The deposition of the plaintiff, taken after he was one hundred years old, was read upon the tiial below, and he testified that he was named after Balser Geehr of Berks county, and that the said Balser Geehr was his uncle, a brother of his father. It is true that his knowledge of this relationship was derived from his mother. He said : “ About his being my uncle, my mother told me that, she always called him my uncle ; that’s what made me know.”
It is to be observed, in the first place, the evidence was to the court, not to the jury. It is the province of the court to decide whether a sufficient connection had been established to permit the declaration to go to the jury. As was said in Doe v. Jenkins (supra), in a similar ease: “It was the duty of the judge to decide whether it was proved to him. There are conditions precedent which are required to be fulfilled before evidence is admissible for the jury. Thus, an oath or its equivalent, and competency, are conditions precedent to admitting viva voce evidence ; and apprehension of immediate death to admitting evidence of dying declarations; and search to' secondary evidence of lost writings; and so is consanguinity or affinity in the declarant to declarations of deceased relatives. The judge alone has to decide whether the condh tion has been fulfilled. If proof is by witnesses, he must decide upon their credibility. If counter evidence is offered, he must receive it before he decides, and he has no right to ask the opinion of the jury on the fact as a conditign precedent.” See Bartlett v. Smith, 11 M. & W., 483.
The learned Judge below was satisfied and received the evidence. We cannot say he was wrong. The plaintiff was a competent witness, made so by law, and his testimony, as to’ his relationship with Balser Geehr, of Berks County, was properly received. It is true his information was derived-from his mother, and was to that extent hearsay. But a large proportion of the knowledge which every intelligent man has is derived from hearsay. Indeed we scarcely realize how little we actually know from our own observation and investigation. We learn the truths of history, the secrets of science and our knowledge of the world generally, from what we have read, or from what others have told us. What does a man know of his deceased ancestors but what he has learned from his immediate relatives ? How was the plaintiff, who had never seen Balser Geehr, of Berks County, to know that the latter was his uncle except from his mother? It is in just such cases that the strict rules of evidence are relaxed as regards hearsay. If it were otherwise pedigree could not be proved at all in many cases, and in one sense it is primary not secondary evidence. The law upon this point is clearly stated in 1 Wharton’s Evidence, § 201: “ Pedigree, from the nature of things, is open to proof by hearsay in respect to all family incidents, as to which no living witness can be found. If what has been handed clown in families cannot be in this way proved, pedigree could not, in most cases, be proved at all. Nor is such tradition, in its best sense, open to the objections applicable to hearsay.
We cannot say, therefore, that the plaintiff was an incompetent witness to prove his relationship to the Balser Geehr, of Berks County, nor that his testimony was incompetent from the fact that his knowledge upon that subject was derived from his deceased mother. She always told him that Balser Geehr was his uncle; it was a part of their family history; one of their family traditions, furnished by one who had the means of knowledge and no possible motive to falsify, so far as appears in the case. When the plaintiff testified that Balser Geehr, of Berks County, was his uncle, he testified to a fact. The evidence was primary, not secondary. This puts at rest all question of the declarations of Anna Maria Gehr and. John Gehr. They are shown to belong to a branch of the Gehr family and from their position as such likely to have had accurate information of the matters to which their declarations referred. The learned Judge below thought the connection between the families sufficiently established to admit the evidence, aud in this we see no error.
The sixth assignment of error does not require an extended discussion. The evidence rejected does not come within any recognized rule in regard to pedigree. No declarations of any
The seventh and eighth assignments relate to the rejection by the Court of “the original record of the Kutztown Evangelical Lutheran Church, commencing in 1810, for the purpose of showing the burial record of Hannah Bast, and the names of her parents, place of birth, dates of birth and death, which was the usual way of keeping the record.” Objection was made to this because it was not a church record, but merely a private book kept by the pastor Rev. John Knoske, claimed by him as his private property, and containing a minute of his acts outside as well as inside of the church.
The further objection was made that the record was not evidence of anything except the death and burial of the person mentioned and the time and place thereof.
The learned Judge held that the book in question was a church registry for marriages, deaths, and burials, that it was intended to be kept, and possibly was kept, according to the requirements of the Act of 1800: that it would be evidence 'to show the deaths of Mary Eva Zimmerman and Hannah Bast, but that for the other purposes offered it was incompetent. Without discussing the character of the book, we are of opinion it was properly rejected. It was not alleged that the time of the death of these ladies was material to the issue, on the contrary, the manifest object of the offer was to prove that Hannah Bast was the daughter of Conrad Geehr and Anna Maria his wife, and to show when and where she was born. This burial list was competent to show the death and burial of these ladies, but what the pastor put down in the book as to their parentage, and the time and place of their birth, was incompetent, for the plain reason that it was no part of his duty to make such entries. Such registers are not, in general, evidence of any fact not required to be recorded in them, and which did not occur in the presence of the registering officer: Phillips on Evidence, vol. ii., *280. It was held in Clark v. Trinity Church, 5 W. & S., 266, that “ an entry in 1811, in the handwriting of the pastor of a church in a book kept in the church as a registry of baptisms and births, the object of which entry was to register the baptism of a person and not his birth, and in which the time of the birth is introduced merely by wajr of description, is not evidence of the date of the birth.”
The rule is thus stated by Mr. Greenleaf in his work on Evidence, vol. i., § 493: “ A parish register is evidence only
We are unable to see any error in the rejection of the mortgage referred to in the ninth asssignment. The object of this offer was to show that the Conrad Geehr mentioned by the defendants’ witnesses as the father of the Geehrs of Berks county resided in Philadelphia as early as 1739, and that the family of Geehr in Berks county were entirely different from the Lancaster county family of the same name, from whom the plaintiff was descended. The obvious objection to this evidence was that none of the defendants’ witnesses speaks of any Conrad Geehr residing at Germantown, and the recital in the mortgage in no way connected the Conrad Geehr, who was the mortgagor, with the Conrad Geehr mentioned by the witnesses. The bare fact that a Conrad Geehr lived in Germantown, that he borrowed money and gave a mortgage to some one in Oley township in 1743, many years before Balser Geehr is heard of in that township, would not of itself connect that Conrad with this Balser Geehr. Mere identity of name must be accompanied with some circumstances of time or place before we can attach any value to it as affecting rights of property.
It is true there are some authorities which hold that identity of name is prima facie evidence of identity of person. So much was said by Justice Sharswood in McConeghy v. Kirk, 18 P. F. Smith, 203. That this is the ordinary rule may be conceded. But it does not apply where the transaction is remote. The true rule is believed to be that laid down by Chief Justice Gibson in Sailor v. Hertzogg, 2 Barr, 182,
The assignments from the tenth to the fourteenth inclusive allege error in the exclusion of a series of voluminous documents from the public, records of Lancaster county. To go over these papers in detail would extend this opinion to an inconvenient length, and would serve no good purpose. The object of the offers, as I understand them, was to show the pedigree of the plaintiff’s family, and that he was not connected with the Geehr family of Berks county. They show recitals in wills, deeds, mortgages, etc. There are also copies of assessments and other papers. They are, perhaps, the equivalent of the declarations of deceased persons, but there is nothing to connect them, or either of them, with the Baltzer Gehr who is the plaintiff in -this suit, or with the Berks county family of Geehr. Hence the objections made by the defendants to the admission of the declarations of Anna Maria Gehr and John Gehr, and which have already been considered, apply with far greater force to these papers. Regarding them as declarations, the declarants are not shown aliunde to belong to either branch of the family. We are of opinion that these records were properly excluded.
There remain but the- fifteenth and sixteenth assignments, in which error is assigned to the charge of the court in some brief comments made by the learned judge upon the evidence. If not entirely accurate, they disclose no such error as would justify a reversal.
Judgment affirmed.
A motion has been made for a re-argument in the above case based upon our ruling in regard to the exclusion of the Lancaster county records by the court. The impression appears to prevail that because we dismissed the assignments of error relating to this question without an extended discussion, we had not examined it with care, or were misled upon the facts. The first assumption is certainly incorrect. I examined this branch of the case with all the more care from the fact that we were not aided by an extended oral argument. The paper books, however, supplied us with a very careful printed argument, so that the loss of an oral argument was not so important as it may seem to the learned counsel for the plaintiff in error. That the point was not more fully discussed in the opinion was owing to the fact that it had already been extended to what I feared was an unreasonable length in discussing the more important questions of the cause.
A careful re-examination and study of the case has failed to satisfy us that we were misled either upon the facts or the law.
The records referred to were offered to rebut the testimony of the plaintiff and to establish the pedigree of his family in Lancaster county. The plaintiff in his deposition had stated that when he was six years old (1788), his father, with his family, moved from Cocalico township, Lancaster county, where he had lived on his brother Paul’s land; second, that his father’s name was Joseph, and that he was the youngest of the family; and third, that his father had three brothers, Paul, Andrew and John, who lived in the same neighborhood in Lancaster county. The plaintiff did not know his grandfather’s name; he never saw him, and then stated that Balser Geehr, of Berks county, was his uncle, upon information derived from his mother. ’
The defendants attempted to show, by the excluded records, that Joseph Gehr, the plaintiff's father, and Paul, Andrew and John Gehr, mentioned in the records of Lancaster county, were brothers; that they were the sons of John Gehr, senior, and hence could not have been the sons of Conrad Geehr, a brother of the Balser Geehr, of Berks County.
The difficulty in the way of the defendants is that there is nothing but identity of name to connect the Gehrs named in the records with the family of the plaintiff. This will not do as to people who died a hundred years ago. The reason and the authority for this position were given in the opinion already filed, and need not be repeated. Not only is there no proof aliunde to connect them, but there is evidence as to Paul and Andrew, at least, which makes their identity more than doubtful. Indeed, it seems hardly possible that they are
The rejected records do not contradict the plaintiff’s testimony. As a pedigree of his family, it rests upon a number of circumstances, each dependent upon the other. With the essential links relating to Paul and Andrew Gehr broken, the whole superstructure crumbles.
We see no sufficient reason to order a re-argument, and the motion therefore is refused.