105 Pa. 577 (Pa. 1884), Sitler v. Gehr

Citation:105 Pa. 577
Opinion Judge:Mr. Justice PAXSON
Party Name:Sitler et al. v. Gehr.
Attorney:A. G. & H. D. Green (with them Wharton Morris and Wm. H. Livingood ), for plaintiffs in error. Isaac Hiester (with him Humes & Frey and John F. Smith ), for defendant in error.
Judge Panel:Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.
Case Date:April 14, 1884
Court:Supreme Court of Pennsylvania
 
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Page 577

105 Pa. 577 (Pa. 1884)

Sitler et al.

v.

Gehr.

Supreme Court of Pennsylvania.

April 14, 1884

March 7, 1884

1. In an action of ejectment, where the issue is whether the plaintiff is related to the person who last died seised of the premises in dispute, declarations of deceased persons, admittedly relatives of the plaintiff, are inadmissible to establish the relationship in question, unless there is some evidence aliunde to prove that the declarants were related to the person dying seised. It need not be shown, however, that they belong to his branch of the family.

2. It is the province of the court to decide in a case like the above whether sufficient connection has been established to permit the declarations to go to a jury.

3. In the present case the plaintiff testified that he was named after the person who had last died seised of the premises in dispute, who was his uncle, and that his mother informed him of the fact. Declarations of certain deceased relatives of the plaintiff were then offered in evidence to establish the above relationship. The court admitted the evidence:

Held, that the plaintiff was a competent witness to establish the connection between the different branches of the family, and that this being established, the declarations were admissible in evidence.

4. Conclusions drawn from a conversation of two living persons are inadmissible in evidence on a question of pedigree.

5. A record of deaths and burials kept by the pastor of a church is admissible in evidence only to show the deaths and burials; where the pastor has also made entries as to the birth and parentage of the parties dying, these are not admissible in evidence, as it was no part of the pastor's duty to make such entries.

6. Mere identity of name is not even prima facie evidence of identity of person where the transactions are remote. A mortgage given 140 years before suit brought by a person of a certain name is therefore inadmissible in evidence to prove that a certain person of that name then resided in the same locality as the land upon which the mortgage was given, in the absence of any evidence to establish identity.

7. On a question of pedigree, ancient wills, deeds, mortgages, and other documents executed by parties bearing the same name as the parties to the suit, and containing recitals as to relationship, are inadmissible in evidence, in the absence of proof that the parties executing them were relations of the parties to the suit.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.

ERROR to the Court of Common Pleas of Berks county: Of January Term, 1884, No. 299.

Ejectment, brought May 22, 1882, by Baltzer Gehr against David Sitler (tenant), Samuel H. Rothermel et al., heirs of Maria Rothermel, deceased, and George F. Miller and Amanda, his wife, in her right, et al., devisees of Hannah Nicely, deceased; to recover an undivided one third part of a messuage and tract of land, containing 231 acres, situate in Maxatawny township, Berks county. Plea, not guilty.

On the trial, before SASSAMAN, J., it was admitted that one Catharine Geehr, commonly called Kitty Geehr, of Reading, Pa., died seised of the tract in question, May 10, 1877, intestate, unmarried, and without issue. It then became necessary to follow the ascending line in order to ascertain the next of kin entitled to take. Kitty Geehr had inherited said tract of 231 acres from her father, Jacob Geehr, who was the first purchaser thereof. After several actions of ejectment title was adjudged to be vested, in equal undivided moities, in (1) Hannah Nicely, and (2) Samuel H. Rothermel et al., heirs of Maria Rothermel; as the next of kin of Kitty Geehr, being of the blood of Jacob Geehr, first purchaser, whose relationship was thus traced: (See Pedigree, next page.)

Jacob Geehr's parents were Balser Geehr, of Berks county, and Catharine Yeager. The latter had a brother, Frederick Yeager, who died in 1821, leaving two daughters, Hannah Nicely and Maria Rothermel, both of whom survived the said Kitty Geehr. Maria Rothermel died intestate July 10, 1877, leaving as her heirs Samuel H. Rothermel et al., defendants in this action. Hannah Nicely died in 1880, aged 94, having devised all her estate to Amanda Miller et al., also defendants in this action.

Pending proceedings in partition between said last mentioned parties, this action of ejectment was brought by Baltzer Gehr, of Crawford county, over 100 years of age, who, admitting the title of the defendants to two undivided thirds of said tract, claimed to be entitled to one equal undivided third thereof, as next of kin of Kitty Geehr, deceased, (and of the blood of Jacob Geehr, first purchaser,) in equal degree with the said Hannah Nicely and Maria Rothermel, through whom the defendants claimed.

Plaintiff traced his relationship thus: (See Pedigree, next page.) He was the son of Joseph Gehr, who, he claimed, was a brother of the said Balser Geehr, of Berks county, who was father of the said Jacob Geehr, first purchaser. The defendants disputed the fact that Joseph Gehr was a brother of Balser Geehr, of Berks county, and this was the principal disputed question of fact in the case.

The name of the family in Berks county was spelled Geehr; that in Crawford county was spelled Gehr. The name Yeager is synonymous with Hunter.

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Plaintiff called as a witness Solomon Gehr, a nephew of plaintiff, who had married a daughter of John Gehr, deceased, who also was a nephew of the plaintiff, and proposed to prove by the witness the declarations by the said John Gehr, in his lifetime, as to the relationship of Baltzer Gehr, the plaintiff, and Balser Geehr, of Berks county.

Offer objected to as hearsay evidence; that while hearsay testimony is allowable to prove pedigree and relationship, it is only such hearsay as is within the rules of evidence governing its admission, which the present offer is not; that before such declarations can be admitted, it must be proved by evidence aliunde to the satisfaction of the court that John Gehr was a member of this family of Balser Geehr of Berks county.

THE COURT. Under the necessities of the case the rule for the admission of hearsay evidence has arisen. The admission of hearsay evidence in cases of this kind, which could not be sustained upon any other class of testimony, has opened a very wide door. It is difficult to say just exactly where the line of demarcation should be drawn between the hearsay admissible and the hearsay inadmissible. For the purpose of this trial the objections are overruled, offer admitted and bill sealed for the defendants. (First assignment of error.)

The plaintiff called Samuel Gehr, a son of the plaintiff, to prove the declarations of his deceased grandmother, Anna Maria Gehr, plaintiff's mother.

The defendants object to any testimony as to the declaration of decedent, because it is hearsay evidence, and that before such declarations can be admitted it must be proved by evidence aliunde to the satisfaction of the court, that the declarant was a member of the family of Balser Geehr of Berks county.

Objection overruled; evidence admitted; exception for defendant. (Second assignment of error.)

The plaintiff offered in evidence the deposition of Baltzer Gehr, the plaintiff in this case, taken July 19, 1882, in Crawford county, in the presence of counsel on the other side.

The defendants object to the reading of the deposition on the same ground that the previous witnesses were objected to, to wit: that before they can be admitted in evidence the plaintiff is required to show that the party declarant is connected with the family of Balser Geehr, of Berks county, by blood or marriage.

THE COURT. The deposition may be read, subject to eliminations marked at the last trial. The objection is overruled and bill sealed for defendants. (Third assignment of error.)

The plaintiff, having testified that he was over one hundred years of age; that he was born in Cocalico township, Lancaster county; that at the age of fourteen he moved with his family to Somerset county; that about the year 1800 he removed to Crawford county; that his father's name was Joseph, who was born in Germany; that his father had some brothers, all of whose names he did not remember; that the witness was named after his uncle, Balser Geehr, was asked the following question:

Q. Who told you about your Uncle Balser?

A. About his being my uncle, my mother told me that--she always called him my uncle; that's what made me know.

On his cross-examination he stated that his grandfather came from Germany, but his father was born in America.

The plaintiff offered the deposition of Ruth Trace, a niece of the plaintiff, for the same purpose as the deposition of Baltzer Gehr; objected to for the same reason.

Objections overruled; exception. (Fourth assignment of error.)

The plaintiff offered the deposition of Mary Gehr, a ??ghter of the plaintiff, for the same purpose as the deposition of Ruth Trace. Objected to for same reason. Objection overruled and bill sealed. (Fifth assignment of error.)

The defendants offered to prove by Jacob C. Geehr, a grandson of Philip Geehr, who was a brother of Balser Geehr, of Berks county, that he visited Meadville in 1846 or 1847; that he remained there about a year, and became acquainted with a number of the Gehrs of Crawford county; that he attended the funeral of Jacob Gehr, near Gehrtown; that at that funeral he met John Gehr, a person considerably older than himself, and that he had a conversation with this John Gehr in reference to the families, the family he was...

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