Vantine v. Butler

• Citation: 240 Mo. 521,144 S.W. 807
• Parties: VANTINE v. BUTLER et al.
• Decision Date: 29 February 1912
• Court: United States State Supreme Court of Missouri

144 S.W. 807

240 Mo. 521

VANTINE v. BUTLER et al.

Supreme Court of Missouri, Division No. 1.

February 29, 1912.

1. EVIDENCE (§ 309)—HEARSAY — DECLARATIONS OF PERSON SINCE DECEASED — PEDIGREE.

In order that the declarations of a person since deceased may be admissible to prove pedigree, it must appear that the statement was made ante litem motam, that the declarant is dead, and that some proof independent of the statement itself has been offered that the declarant

was related to the family to which the declaration related.

2. EVIDENCE (§ 309)—PEDIGREE—DECLARATIONS OF PERSON SINCE DECEASED.

In a proceeding to establish heirship, independent evidence that declarant, who disappeared in 1863, was testator's wife, and that plaintiff was her child, held sufficient to justify the admission of declarant's declarations to establish plaintiff's identity as testator's daughter and heir.

Appeal from Circuit Court, Boone County; Nick M. Bradley, Special Judge.

Action by Lizzie Vantine, as a pretermitted heir, against Mary Butler and others, to recover an heir's share in the estate of her alleged father, John Butler. Judgment for plaintiff, and defendants appeal. Affirmed.

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 defendant, Mary Butler, Loutitia 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, Mo., 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 way; that said John Butler possessed at the time of his death about 2,000 acres of land and personal property of about $10,000; that said land is fully set out and described in the said petition; 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 issues be framed to determine the facts aforesaid, and that she be adjudged a daughter and a lawful heir of said John Butler, and entitled to a one-sixth interest in his estate, both real and personal, and a tenant in common with the defendants in all of said real estate and that an accounting be had between her and said executors, heirs, and devisees, and for all such other and further relief as to the court may seem just in the premises. The petition in this case was filed on the 11th day of January, 1908. On June 1, 1908, these defendants filed an answer denying each and every allegation in said petition. The record discloses that the question of the heirship of the plaintiff was the only vital issue in controversy between the parties to this proceeding."

The evidence in the case is quite voluminous. Some 60 witnesses testified in the case on behalf of the plaintiff, none for defendants, and their testimony covers over 200 pages of closely printed matter. For that reason, it will be impractical to set out even a summary of the testimony of each. We will, however, state generally what the evidence tended to show, which is as follows:

John Butler, the alleged father of the plaintiff, died testate in Boone county in the fall of 1906, owning about 1,800 acres of land, described in the pleadings, and about $15,000 worth of personal property. The will was duly probated, and he devised the lands to his widow, Mary Butler, for life, with the remainder in specific portions to the other defendants. John Butler and his first wife, Jane Butler, whom it is claimed was the mother of the plaintiff, were Irish Catholics, who came from New York to this state about the year 1857. They then had two children, Harry and William. Butler was a carpenter, and lived at or near Sturgeon, in said county, until August, 1857, when he moved to a farm near there. On the 16th day of that month a third child was born unto them, whom they named Annie Butler. Some time later they moved to another farm near by, where he resided until his death, and where he accumulated his property. He farmed, engaged in the mercantile business, and operated a grist and a saw mill. He and his wife did not live happily together, but there is no suggestion that she was unfaithful to him. He was high-tempered, exacting, and dictatorial, believing that the wife is the servant of the husband, or, at any rate, he acted on the theory that he had the right to inflict corporal punishment upon her whenever he saw fit to do so. In a fit of temper, about the year 1859, he beat her up badly, and drove her from home, she carrying the visible marks of his brutality with her. She was pregnant at the time, and, when driven from home, she started afoot to Sturgeon, some miles away, and was found by the wayside in a hazel-thicket, about to be confined. W. T. Mathis and others discovered her, and carried her to a new hotel he was building in Sturgeon. He put up a bed for her, and placed her upon it, whereat the first night thereafter she gave birth to a baby girl claimed to be the plaintiff in this case. She remained there only three or four days, until she could walk, when she took the child back to the neighborhood of the home from which she had been driven. The exact date of the birth is not stated, except it was "in plum or hazelnut time," which, of course, was in midsummer or early fall.

Shortly after the separation, Butler sent the three older children back to New York, and he joined the Union army at the outbreak of the War, and served throughout that entire period. He never returned to Missouri until 1865, when he came back to his old home, near Sturgeon.

During the first two or three years of Butler's absence, his wife and child, according to the testimony of many witnesses, lived with various neighbors near her old home, working when she could, but depending largely upon charity. At one time she lived in the county poorhouse, and subsequently she went to Columbia, Mo., and worked there for a while, and in 1862 she returned to Sturgeon, where she worked for John Moyhihan and others. In 1863 she and her baby left Sturgeon and went to Mexico, Mo., some 15 or 20 miles east. That was the last time they were ever seen in Boone county. Butler never questioned the legitimacy of the child, but frequently after his return from the war, and after her departure from the country, he spoke of the child, and upon several occasions expressed to the neighbors a desire to locate her; but as a rule he was very reticent about his wife and this child.

Annie Butler, a daughter of the deceased, John Butler, knew she had a sister, and some two or three months prior to her marriage she told the witness, W. T. Mathis, in the presence of Laura Hawkins, a neighbor girl, that she had a sister living in Monroe county, near Paris.

The following facts are practically undisputed, viz.: Mrs. Butler's given name was Jane, and her maiden name was Jane Gorden. At the date of the separation, she was about 30 years of age, of rather fair complexion, dark brown hair, blue eyes, dark eyelashes, medium height, and inclined to be fleshy. Mrs. Butler was at times intemperate, and prior to the separation she became intoxicated, fell in an open fire, and burnt one of her arms very seriously, resulting in a permanent disfigurement. The child was first called Caledonia by her mother, but prior to leaving Boone county she changed her name, and called her Lizzie. The first thing heard of Mrs. Butler and the child after they left Sturgeon for Mexico was in the month of October, 1863. One evening in that month a woman with a child came from the direction of Mexico on a foraging wagon of a company of Union soldiers bivouacked on the highway leading from Mexico to Paris. Some of these soldiers testified that the child was four or five years old with dark hair. They remained in the camp overnight, and in the morning Col. Forbes, commander of the company, turned the child over to Dan Wyman, who was running a back from Mexico to Paris. The latter departed with the child in the hack for Paris. The soldiers subsequently in November saw the child in Paris, and still later they saw her there at the home of Mr. Wetmore. After living with the latter six or seven months, Mr. and Mrs. Wetmore adopted the child, and reared and educated her, where she lived as a daughter until she was married. Shortly after the child arrived at Wyman's, this same woman appeared at Paris, who had a badly burned arm. She said her name was Jane Butler, and that the child was hers, and its name was Lizzie. Each of them were known in that community by their respective names. Mrs. Butler stated to various persons in and about Paris that she was the wife of John Butler of Boone county, and that he was the father of the child; also, that she had by him three other children living in Boone county. There was some evidence which also tended to show that the child was the daughter of Jane Gorden, the maiden name of Mrs. Butler. This woman who claimed to be Mrs. Butler sympathized with the Union cause, and was a...