144 S.W. 807 (Mo. 1912), Vantine v. Butler

Citation:144 S.W. 807, 240 Mo. 521
Opinion Judge:WOODSON, J.
Party Name:LIZZIE VANTINE v. MARY BUTLER et al., Appellants
Attorney:Whitecotton & Wight for appellants. Gillespy & Conley for respondents.
Case Date:February 29, 1912
Court:Supreme Court of Missouri
 
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Page 807

144 S.W. 807 (Mo. 1912)

240 Mo. 521

LIZZIE VANTINE

v.

MARY BUTLER et al., Appellants

Supreme Court of Missouri, First Division

February 29, 1912

Appeal from Boone Circuit Court. -- Hon. Nick M. Bradley, Special Judge.

Affirmed.

Whitecotton & Wight for appellants.

(1) The court committed error in admitting the testimony of Mrs. Mills as to the identity of Jane Butler by Jane Butler's own declarations with no other proof, and also as to her relation to John Butler for the same reason. The same is true as to the testimony of Robert Farthing. 1 Wharton on Evidence, p. 209; Greenleaf on Evidence (15 Ed.) sec. 207; 18 Am. & Eng. Ency. Law, 257, 263; 22 Am. & Eng. Ency. Law (2 Ed.), 257, 263; Elliott on Evidence, sec. 380, 381; Wigmore on Evidence, sec. 1490; 16 Cyc. 1229; Kennedy's Trial Evidence, p. 22; 2 Jones on Evidence, p. 712. (2) There being no competent proof whatever as to the identity of the plaintiff or that she was an heir of John Butler, the court clearly erred in its finding, judgment and decree. Schmuding v. Ewing, 57 Mo. 79; Klostermon v. Koge, 39 Mo.App. 60; Shumate v. Snyder, 140 Mo. 77.

Gillespy & Conley for respondents.

(1) The modern rule and the rule of the best considered cases and text-writers as to the qualification of the declarant is that he must be related to the person by blood or marriage, as to whose pedigree his declarations are offered; that he may be related to the plaintiff, in which case his declaration tends to prove the pedigree of the plaintiff, or to the deceased in which case his declarations tend to prove the pedigree of the deceased. Wigmore on Evidence, sec. 1491; In re Hartman's Estate, 107 Pac. (Cal.), 105; In re Clark's Estate, 110 Pac. (Cal.), 828; Overby v. Johnston, 94 S.W. (Tex.), 131; Fowler v. Simpson, 79 Tex. 614; Sitler v. Gehr, 105 Pa. 577; Smith v. Smith, 140 Wis. 599; Mann v. Kavanaugh, 110 Ky. 776. (2) Only slight evidence is necessary to prove the relationship. Fulkerson v. Holmes, 117 U.S. 397; Vowles v. Young, 13 Ves. Jr. 147; Monkton v. Atty-Gen., 12 R. & M. 157; Young v. Shullenberg, 165 N.Y. 385; In re Robb, 37 S.C. 19; Brown v. Lazarus, 5 Tex. Civ. App. 81; Fowler v. Simpson, 79 Tex. 614; Louder v. Schluter, 78 Tex. 105; 22 Am. & Eng. Ency. Law (2. Ed.), 644, and cases cited; Layton v. Kraft, 98 N.Y.S. 72. (3) The conduct, representations and declarations of a person whose identity is in question are competent if made ante litem motam. The declarations of a person under such circumstances as to his name, past history and family connections are not hearsay, but are admissible for the purpose of determining his identity. 3 Wigmore on Evidence, secs. 270, 1791, 1494; 6 Ency. Evidence, 922, and cases cited; Howard v. Russell, 75 Tex. 171; McNeil v. O'Connor, 79 Tex. 227; Nehring v. McMurrain, 94 Tex. 45; 15 Am. & Eng. Ency. Law (2 Ed.), 918; Mullery v. Hamilton, 71 Ga. 720; La Riviere v. La Riviere, 77 Mo. 512; Long v. McDow, 87 Mo. 197; State v. Elwood, 17 R. I. 763. (4) Whether the Jane Butler and Lizzie Butler of Paris were the same persons as the Jane and Lizzie Butler of Boone county was purely a queston of establishing an identity. La Riviere v. La Riviere, 77 Mo. 512. And the declarations of Mrs. Butler were competent as evidence of her identity whether she is living or dead. Nehring v. McMurrain, 94 Tex. 45. (5) The statements made by Mrs. Butler as to her name and the name by which she was known in Paris and the statements of witnesses that the child in Paris was called Lizzie Butler is not hearsay, but primary evidence. It is relied on as a source of knowledge. Willis v. Quimby, 31 N.H. 487; Harris v. Martin, 150 N.C. 367; Gillian v. State, 3 Tex.App. 134; Berniaud v. Bucher, 11 P. 802; 1 Wigmore, sec. 667. (6) "A name is a word by which a person or thing is denoted; the word or words by which an individual person or thing or class of persons or things is designated and distinguished from others." Century Dictionary, "Name;" Roth v. Pallachullo Club, 61 S. E. (S. C.) 78; People v. Freeman, 8 Cow. (N. Y.) 106; Rich v. Mayer, 7 N.Y.S. 70; People v. Leong Quong, 60 Cal. 107. The designation by which one is distinctively known in the community. Laflin v. Steytler, 146 Pa. St. 434. The name is the very means by which persons in conversation are identified. (6) Identity of name is prima facie evidence of identity of persons. La Riviere v. La Riviere, 77 Mo. 514; Long v. McDow, 87 Mo. 202; State v. Moore, 61 Mo. 279; Gitt v. Watson, 18 Mo. 277; Hoyt v. Davis, 21 Mo.App. 239; Meyer v. Bank, 27 Ind.App. 354; People v. Seaman, 239 Ill. 611. (7) The declarations are admissible to prove not only matters of pedigree proper, such as relationship and descent, but also collateral matters tending to prove the same and births, deaths and marriages. 22 Am. & Eng. Ency. Law (2 Ed.), 640; In re Imboden's Estate, 111 Mo.App. 235; Topper v. Perry, 197 Mo. 531; Beckman v. Nacke, 56 Mo. 546.

OPINION

Page 808

[240 Mo. 525] WOODSON, J.

Counsel for appellants make the following brief and clear statement of the issues, which I adopt as a partial statement of the case, viz.:

"This cause is in this court by appeal on the part of the defendants, Mary Butler, Louititia Phelan and Mary Butler, the younger, and Vincent D. Phelan, executors of the last will and testament of John Butler, deceased, defendants in the above entitled cause, from a decree and judgment of the circuit court of Boone county, Missouri, in favor of the plaintiff establishing her right as a pretermitted heir.

"The petition is in ordinary form and alleges that John Butler died testate on October , 1906, as to all his heirs except this plaintiff, and that by his last will and testament he devised to his present widow, Mary Butler, all his real estate to hold during her natural life, and after her death disposed of it in fee to his children and grandchildren as provided in said will, not mentioning the plaintiff in his will in any [240 Mo. 526] way; that said John Butler possessed at the time of his death about two thousand acres of land and personal property of about ten thousand dollars; that plaintiff is an heir at law in said estates and entitled to a one-sixth undivided interest therein, both in the realty and the personalty thereof, after the marital rights of the widow have been assigned and set off to her; that said will of said John Butler, deceased, has been duly probated and that by the terms of said will Mary Butler and Vincent D. Phelan are named as executors and have duly qualified as such and taken possession of both the personal and real estate of the said deceased. Wherefore plaintiff prays that...

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