153 P. 1022 | Mont. | 1915
delivered the opinion of the court.
Charles Colbert, late of Butte, died intestate on February 14, 1901. He left considerable property, but no wife, child, parent, brother, sister, uncle or aunt him surviving. The present proceeding was initiated in the matter of his estate pending in the district court of Silver Bow county, under sections 7670 to 7672, Revised Codes, the respondents claiming to be heirs of said decedent, as the son of Nancy Cross Colbert, late of New York and Pennsylvania. The trial court, sitting without a jury, found and adjudged in accordance with the respondents’ claim, and from that judgment, as well as from an order denying a new trial, the state of Montana, demanding an escheat for want of heirs, has appealed.
The main question presented is the sufficiency of the evidence to justify the findings and judgment. As this of course means competent and credible evidence, .since it is not to be assumed that the trial court based its findings upon any other kind (Finlen v. Heinze, 28 Mont. 548, 73 Pac. 123; Lane v. Bailey, 29 Mont. 548, 75 Pac. 191), we must first ascertain what portions of this voluminous record there are to which, for the reasons assigned by appellant, no probative value can be given.
1. The first contention is that certain depositions, viz., those of Mary E. Cross, Naomi D. Edwards, Sarah J. Musser and Jabez Tillotson, ought not to have been received and ought not to be considered for the reasons (a) that they were not taken in this proceeding, and (b) that they were not taken in
(a) The respondents concede that these depositions were not taken in the present proceeding, but were taken in a certain cause numbered A195, commenced’ as a civil action by Joseph Cross et al., plaintiffs, against the State of Montana, Gerald Colbert et al., defendants. It is insisted that they were nevertheless admissible under the provisions of section 8010, Revised Codes; but as they were taken without the state under the provisions of sections 8002-8006, Revised Codes, we question whether section 8010 affords any warrant for their
(b) We take it that the phrase “former action,” as used in subdivision 8 of section 7887, means any action or proceeding which has progressed far enough to enable testimony to be
2. It is next insisted that certain other depositions, to-wit, those of Mary Ozburn, James Clement and Nettie Armagost,
3. The same considerations apply to the proposition that the depositions of John Laisy, Eugene Bush, Josephine Joslyn, Joseph Cardner, Evaline F. Rice, Mary Ozburn, James Clement, Bessie Beedy and Nettie Armagost should have been rejected because the certificates thereto were defective. In each of these depositions the notary certified “that the deposition was reduced to writing, and when completed was carefully read to
4. All the witnesses for the respondents who pretend to know or to have heard family talk upon the subject agree that there was such a person as Nancy Cross; that at some time she married a man named Colbert and had a son called Charles; that she had several brothers, among them Joseph Cross, who came to Iowa prior to 1865 and lived there until 1886; that she had one sister, Fanny Cross Bush, through whom the claimants of record deraign their kinship. The respondents themselves assert that Charles was the son of Colbert, but five of their witnesses testify that Nancy Cross was married twice, first in 1834 to William Bush, who became the father of her only boy, and that William Bush had a sister, Mrs. Alvina Clement, late of Illinois. As bearing upon the claim that the Charles Colbert with whose estate we are concerned, was the son of Nancy Cross certain testimony Avas received, the character of Avhich may be exemplified as follows: (a) Testimony of declarations,
6. Certain testimony was received of alleged declarations of
7. Accompanying the deposition of Bessie Beedy is the
8. On the theory that to admit evidence touching the alleged
9. Numerous errors are assigned upon the admission of
10. It is vigorously insisted that forasmuch as the record
11. As regards the claim asserted by them, the respondents [15] were plaintiffs (Estate of Easson, 141 Cal. 33, 74 Pac. 436), and they had the burden of proof. Their case rests mainly [16] upon depositions the value of which we may judge as effectively as the trial court (Bordeaux v. Bordeaux, 43 Mont. 102, 115 Pac. 25), and if it shall be clear to us that the weight of the evidence is not with, but is against, the findings in their
So far as this story depends upon this deposition, we disbelieve it entirely. There are many reasons for our incredulity, but .the principal ones are these: That this witness, here asserting kinship to Charles Colbert, deceased, in virtue of the claim that said- deceased was the son of Nancy Cross Colbert, late of New York and Pennsylvania, and here testifying to the existence of two brothers, two sisters, four nieces and four nephews — all heirs if he be such — acknowledges that he deliberately swore on four previous occasions, twice in affidavits for depositions, once on oral examination before the district court, and once in a former deposition, that he was the sole heir of said deceased and deliberately told the attorney general of this state, after Colbert’s death, that Colbert’s parents were married in Germany, giving details of their life in that country; that here asserting himself to be the son of Fanny Cross Bush, who was born in New York, as were her parents before her to his knowledge, he told the attorney general that his own mother was born in Germany; that always knowing and here testifying to the death of his mother in Wisconsin and that he first met Colbert in that state in 1859, he told the attorney general and swore before the district court upon a hearing of some objections filed in this estate, that his mother died and was buried in Cortland county, New York, and that he and Colbert traveled together from that place to Michigan; that always knowing and here testifying to his own birth in 1834, and that his father was living in 1860, he told the attorney general and swore upon a hearing before the district court and stated in a former deposition that he was an infant when his father died; that always knowing and here testifying that he first saw Charles Colbert in Wisconsin, he swore before the court and stated in a prior deposition that Colbert came to him at his parents’ home in Cortland county, New York; that always knowing and here testifying that two other sons had been born to his parents, both of whom were living in 1860, he stated to the
As constituting sufficient corroboration of Jay Cross Bush the respondents present: (a) That his story is one which only a man who had been a prospector in the early days of Montana could have told; (b) the testimony of Laisy who deposed that Jay Cross Bush and a companion who called himself Charles Colbert came to Saginaw in the summer of 1859, that he met and knew them socially until their departure in 1860, that he visited their quarters frequently and saw them as often as twice a week, that Charles had a German Bible of “ordinary size” in his room, which he “said he had got from his mother and all her children’s names were recorded therein,” that Charles had an interest in a sawmill and Jay Cross Bush worked for him, that Charles spoke German, said he was born in Germany and that his parents had lived there, but in a lawsuit which he had over some lumber testified in English that his mother and the mother of Jay Cross Bush were sisters; (c) the testimony of Joseph A. Bush, Eugene Bush and Josephine Joslyn that their brother Jay did visit their home in Buchanan county, Iowa, in 1860, bringing with him a small, blue-eyed, light-haired “good-looking” German, twenty-five or thirty years old, who claimed to be and was accepted as Charles, the son of Nancy Cross Colbert, that Charles spoke German well but English brokenly, that he carried a small hand Bible printed in German, containing a record of the Colbert family, which he said he had got from'his mother and with which he refused to part, that from him Fanny Cross Bush and her family first
We are not disposed to question that all this testimony, taken at face and unopposed, is sufficient to justify the view that Jay Cross Bush may have finally told the truth, and that the deceased Charles Colbert was the son of Nancy Cross Colbert, late of New York and Pennsylvania. Corroboration, however, may be overdone, and it is as dangerous to prove too much as too little. So here, certain suggestive features may be noted. It is strange, for instance, that the story of Jay Cross Bush affords no incident, nor the name of a person, place or thing throughout his whole alleged itinerary by which its truth or accuracy can be brought to the test; that he worked on mining claims for others in Idaho and Montana, but no claim nor owner can he mention; that he should disclose a want of memory as to everything that Colbert failed to tell Woolbeater or the latter failed to recall; that, pledged to keep, as he says he did keep, the identity and whereabouts of his companion a secret, he should have made him notorious by his letters; that he mined in Confederate Gulch when that noted field was at the height of its glory and when Diamond City was its metropolis, yet never heard of such a place, did not believe that such a place existed and did not think there were many miners in the gulch. It is strange that Charles Colbert, the fugitive from justice, anxious to hide his identity because perhaps his life depended upon it, should carry about his person and zealously. cherish the record that might hang him, and should leave in his wake a trail of correspondence that a blind man could follow. It is strange that Laisy should describe the companion of Jay Cross Bush at Saginaw as a dark-complexioned man; that though but fifteen years old and attending school, he should have associated so intimately with these two grown men; that he should have Colbert claiming birth in Germany before the need for such a course had become apparent; that recalling vividly such incidents as the Bible and the testimony in court, he cannot remember any other
To combat the showing thus made, the state submitted a volume of evidence amounting to 450 pages of this record, the material portions of which may be abstracted as follows:
William I. Lippincott testified in substance: I knew Charles Colbert from the summer of 1881 until his death and was his attorney; I know his signature; the affidavit Exhibit “B,” wherein it is recited that the affiant Charles Colbert “is a declared citizen of the United States, having declared his intentions to become a citizen at a special term of court held at Monticello, county of White, state of Indiana, in the year 1859,” was signed by him. He also signed the deposition shown me given on February 16, 1895 (in a case named, pending in the federal court), wherein he testified that he had been a placer miner since 1863; that he arrived in Idaho in 1863, came to Montana in June, 1865, and settled in Butte in July, 1866. I have seen the citizenship papers issued to him at Butte in 1897 and was present when they were issued; he claimed that final papers had been issued to him in Idaho but were burned up in his cabin in 1890, and could not be replaced because the original records were lost. I talked with him often about his history; I told him I was from Pennsylvania, but he told me at various times that he had come from Germany. I know “Pennsylvania Dutch” and can distinguish between it and German; my recollection is Colbert did not speak “Pennsylvania Dutch.” He often told me he had no relatives at all; that after his father died, his sister died and then his mother; that when about seventeen or eighteen years of age he left the country and came to America. He told me of going to Aspinwall and across the Isthmus; he came to Butte gradually by way of San Francisco, Walla Walla and Alder Gulch.
Neil Ward, deputy county clerk and recorder of Silver Bow county, produced two election registers, the entries in which show that in 1890 Charles Colbert registered in district No. 10 as “Age? 55; where bom? Germany; Papers? Lost”; and
James F. O’Brien, deputy clerk of the district court, produced the official-record of that court showing that on January 9, 1897, Charles Colbert appeared and as a native of Germany took the oath of allegiance to the United States, renounced allegiance to "William II, Emperor of G-ermany, and was thereupon adjudged to be a citizen of the United States.
John Woolbeater testified: “I was bom in Hamburg, in the northern part of Germany, in 1840; came to Montana in 1867, to Butte in 1881; was absent from Butte between 1885 and 1890. First met Charles Colbert in 1882; that fall and winter I lived in a cabin about 100 feet from where he lived; saw him every day; talked with him for hours; we were and always have been friendly; after 1890 I lived with him in the same cabin for a couple of years, and after that I lived in a cabin about 100 feet away from him; I took care of him in his later years; often talked with him, nearly every day during the winters about his life, the old country and what he was doing there. He told me that when he was a-boy he worked for the farmers, taking out sheep in the morning and bringing them back in the evening, and when he got bigger he took cows out; this was around the village of Karstaedt, Province of Brandenburg, Prussia; after that he worked for a farmer called Nagel, who was a government officer, a ‘Schulze’; he said his father and mother worked there the same as he did; he said his father and mother and sister died before he came to America; there were two cousins on his mother’s side living in Germany, to whom he had sent money before I knew him. He left Karstaedt once and went to work for the German government at a harbor near Oldenburg. "We often talked of Hamburg, which he said he had visited, and he mentioned streets and places that I knew, and he told me he had stopped at the ‘Tarhoif,’ an emigrant hotel there. He said he had sailed from Bremerhaven in 1858 and entered the United States at New York City; that when he got here he worked on
A. W. Barnard testified that he first met Colbert in the fall of 1866, or the summer of 1867, and knew him right well from then to his death; that he talked with him about his birthplace and previous history; that he had heard Colbert say he came from Germany; that about a year and a half before his death the witness called upon him- — he was in a pitiable condition — and asked him why he did not get someone to come and look after him; he answered that he had not a relative on earth. The witness asked him about his parents, and he said they were dead. Asked how he got to the country, and he answered that he had stolen on shipboard, landed at Philadelphia, worked first for a German baker, next for an ice-cream maker, then wandered westward as far as St. Louis, where he took a boat which finally brought him to Fort Benton.
George M. Bourquin testified: “I knew Charles Colbert and was his attorney from the fall of 1899 until he died; he spoke to me a number of times about his birth-place and early life. He assured me several times that he had been born in Germany— in Prussia, I think. When around seventeen, or past seventeen, he had come down to the coast and worked in the shipyards there at Kiel. He stated that his father and mother were living at that time; that they had no other relatives; that he had no other relatives at the time he was telling me, his mother and father having died; that the only other relative, other member of the family besides himself, had been a younger sister who died at or about the time he left home. He came down to Kiel and, as I said, worked in the shipyards for a while and then managed to get aboard a vessel and came over to England, and from England he came to America. I think he said
Valendine Kropf testified: “I was- born in Germany; first met Charles Colbert about September, ’66, here in Butte. He told me he came from Elk Creek or Elk City, Idaho. He talked German, the dialect peculiar to northwestern Prussia, and not Pennsylvania Dutch. He told me he had no relatives. He said he came to Idaho from California. He was a rank Democrat and took ‘Brick Pomeroy’s Democrat,’ a political paper from the states, published at La Crosse, Wisconsin.”
Gus Fitschen testified: “I am a resident of Butte for twenty-nine years, German by birth; knew Colbert since 1884 and was quite friendly with him; remember hearing him and a south German named Schwab quarreling in a friendly way about the respective parts of Germany they came from; one would stick up for his part and the other for the part he came from. I would consider from Colbert’s language that he was from North Germany; he did not speak Pennsylvania Dutch.”
Charles Schmidt testified: “I was bom in Baden, South Germany, and lived in Butte since 1881; was well acquainted with Colbert; saw him often. He spoke English brokenly and German well. His dialect was that of the North German province of Brandenburg ■ he did not speak Pennsylvania Dutch. Yery often he said: ‘I am a Brandenburger.’ ”
Louis Lienemann testified: ‘‘I have lived in Butte thirty-two years; knew Charles Colbert. I was bom in Baden; I speak
Certified up to this court as an original exhibit is the photographic copy of a declaration of intention to become a citizen of the United States, made at Monticello, in the circuit court of White county, Indiana; it bears date March 31, I860; the name of the declarant is uncertain; it looks like “Frederick Colbon,” but may be “Frederick Colbow.”
Peter Breen testified: “I am an attorney at law; I know Jay Cross Bush and Eugene Bush; I first saw Eugene Bush at my office about nine years ago (1905) several times. He said he was a brother of Jay Cross Bush, who was claiming to be sole heir of Charles Colbert, and he said, ‘If Jay Cross Bush had anything coming he was in on it,’ that he had no recollection and knew nothing of the relationship himself, but if Jay Cross was a cousin he was; I asked him if he was from Cortland, Cortland county, New York, and he said he was not, nor Jay Cross Bush was not either, and I said, ‘That is the place that Charley Colbert and Jay Cross Bush lived’; he says it was not. * * * He said if he left from any place with Jay Cross Bush he left from near Independence, Iowa, but he had no knowledge of it, and there was none of the family had any knowledge of it, with the possible exception of one sister; that there was no one at home that was old enough to remember it, and they knew nothing of it. He asked me if he would work with us in the case and not make known that Jay Cross Bush had perjured himself in this court, would I remain in the case, and I said no, I would not; and I said, ‘What is the matter with the rest of those brothers and sisters coming in and mak
Counsel for the respondents indicate with much precision wherein the evidence for the state is not consistent in detail; that láppincott and Woolbeater are not worthy of belief; that the case discloses the marvel of a man bom and reared in Germany — where compulsory education has prevailed for over a century — who could not write in German; and that Colbert’s devotion to “Brick Pomeroy’s Democrat” is evidence that he did not come from Germany. These things are not to be ignored, but in considering their weight, regard is to be had to the fact that Charles Colbert, the only person who could resolve or fully explain them is dead, that the position of the state is purely defensive and need not be entirely harmonious, and that most of the discordances which do appear are such as may come from the recollection of witnesses touching matters with the minutiae of which they would probably not charge their minds. So, as to Colbert’s writing German, the evidence is not altogether consistent, and it is far from proving that he could not do so. But let this be assumed, that fact alone is not decisive against his German nativity. Granting, as of common knowledge, that Germany has led all European ■nations in attention to popular education, that it is now the aim of a very purposeful government to see that all children attend school for a certain period every year until the age of fourteen is attained, and that in consequence of such policy, illiteracy has been “practically eliminated” (8 Universal En
The judgment and order appealed from are therefore reversed and the proceeding is remanded to the district court of Silver Bow county, with direction to dismiss the respondents’ petition.
Reversed and remanded.