Sitler v. Gehr
| Citation | 105 Pa. 577 |
| Parties | Sitler et al. <I>versus</I> Gehr. |
| Decision Date | 14 April 1884 |
| Court | United States State Supreme Court of Pennsylvania |
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.
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A. G. & H. D. Green (with them Wharton Morris and Wm. H. Livingood), for plaintiffs in error.—The question is whether the declarations of a party are competent evidence in a question of pedigree, unless the declarant is connected with the family in reference to which the declarations are offered. The declarations of a deceased person, who is related to a family by marriage, are admissible to prove family pedigree, including those who compose the family. But before such declarations can be admitted the relationship of the declarant to the family must be proved by other evidence than his declarations: Wharton on Evidence, 217 and 218. Such relationship must be proved aliunde, and must be established by extrinsic proof and not out of the declaration itself: Phillips on Evidence, 275; Taylor on Evidence, vol. 1, § 576; Doe dem. Futter v. Randall, 2 M. & P., 24. It is a safe and necessary precaution to require that before a declaration can be received the relationship of the declarant with the family be established by some proof, independent of the declaration itself: Attorney-General v. Kohler, 9 H. L. Cases, 654. It is submitted that there is no evidence here of relationship between the family of Geehr, of Berks county, and that of Gehr of Crawford county. The sole reliance of the other side is upon the unsupported declarations of the plaintiff's mother. The declarant, who was the plaintiff, was not only not recognized as a member of the Berks county family, but he was totally unknown to them. The mere identity of name is but an accident, and it is very significant that there is a difference in the way of spelling it. No better evidence than that offered in Dr. Knoske's register of births, burials, etc., was possible. The entries were made at a remote period, by a disinterested person, when no motive to falsify could exist, and they were preserved in the public records of the church. "The registry now kept, or which shall hereafter be kept, by any religious society in their respective meeting book or books, of any marriage, birth, or burial within their province or territories, shall be held good and authentic, and shall be allowed on all occasions whatever:" Act of 1700, § 1, 1 Sm. Laws, 20. But independent of statutory prescriptions the entries regularly made in his own books by a clergyman or by the recording officer of a parish, or the proper functionary of a religious society, are, after his decease, evidence of all facts which it was his duty officially to enter: Wharton on Evidence, 654. The law in regard to proof of identity is well settled and fully warranted the admission of the mortgage. Identity of name is prima facie evidence of personal identity: McConeghy v. Kirk, 18 P. F. S., 200; Goodell v. Hibbard, 32 Mich., 48.
Isaac Hiester (with him Humes & Frey and John F. Smith), for defendant in error.—While it is admitted that the essential rules in regard to the admissibility of declarations as to pedigree have been complied with, i. e. (1) That the declarations be made ante motam litem; (2) That the declarant be dead; (3) That the declarant be related to the family about which the declarations are made; yet it is contended that the declarant must be shown by evidence aliunde to be related to the particular branch of the family in which the title to the property was vested. The long line of authorities cited on the other side do not sustain their proposition. It is a well established rule that it is not necessary to prove the declarant to be connected with both branches of the family touching which his declaration is tendered. It is sufficient if he is connected with the family, and that connection once proved, his declarations are admitted upon questions regarding the family. This rule is laid down in, and this case is governed by, Monkton v. Attorney-General, 2 Rus. & M., 157. Admitting that the book referred to was such an official register as is contemplated by the Act of 1700, it is obviously only to be allowed as evidence of the matters referred to in the Act, that is, marriages, births, and burials. Such registers are not in general evidence of any fact not required to be recorded there, and which did not occur in the presence of the registering officer 2 Phillips on Evidence, 280. The onus is on the other side to prove identity: Sailor v. Hertzogg, 2 Barr, 182.
Identity of name is ordinarily, but not always, prima facie evidence of personal identity: Sewell v. Evans, 4 A. & E., N. S., 626. Such identity must be proven by evidence aliunde. The two ways of spelling the name in this case are within the principle of idem sonans, and not nearly as dissimilar as that of Troutback and Troutbeck, in Monkton v. Attorney-General, supra.
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 has 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 must also be thus shown to be related to the person who died seised. The first part of this proposition is undoubtedly true under all the authorities; the latter portion of it is not so clear. I have carefully examined all the authorities cited on both sides upon this point, and many others to which our attention was not called upon the argument, and although there is some conflict in the cases the weight of authority seems to be that while a declarant must be shown by evidence aliunde to belong to the family, it does not appear to be necessary to show that he belongs to the same branch of it. In Vowles v. Young, 13 Vesey, 147, it was held that the declarations of a deceased husband concerning the descent or pedigree of his wife are admissible. And in Jewell v. Jewell, 1 Howard, 219, that the declarations of a deceased husband of one of the plaintiffs claiming as heir of her father, that his wife was not married to her father, were admitted.
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 question 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 DENMAN, 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...
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