Duncan v. Watson

• Decision Date: 30 June 1916
• Docket Number: 2 Div. 620
• Citation: 73 So. 448,198 Ala. 180
• Parties: DUNCAN et al. v. WATSON.
• Court: Alabama Supreme Court

73 So. 448

198 Ala. 180

DUNCAN et al. v. WATSON.

2 Div. 620

Supreme Court of Alabama

June 30, 1916

Rehearing Denied Dec. 30, 1916

Appeal from Circuit Court, Perry County; B.M. Miller, Judge.

Ejectment by L.C. Watson, as trustee, etc., against Kate C. Duncan and others. From judgment for plaintiff, defendants appeal. Affirmed.

Thomas J., dissenting.

George D. Motley, of Gadsden, for appellants.

Rutherford Lapsley, of Anniston, and W.J. Boykin, of Gadsden (Keith &amp Wilkinson, of Selma, of counsel), for appellee.

THOMAS J.

The suit was in ejectment to recover an undivided interest in the Valola plantation, in Perry county, Ala. Defendants' plea was the general issue.

The testimony tended to show that one L.Q.C. De Yampert was in possession of the lands in dispute at the time of his death and that he devised them to his two sons, Asbury H. and Thomas W. De Yampert, for life, with remainder to their children. About 1870, as provided for in said will, a division of the lands was made between the two devisees. The plaintiff sought to show that the said Asbury H. De Yampert had two sons, and one daughter named Linda; that she married F.P. Duncan, by whom she had one child, a daughter that died an infant after the death of the mother, leaving its father as its next of kin. These facts were important, as showing the legal title to an undivided one-third interest in said lands.

One Robert De Yampert, grandson of A.H. De Yampert, who was only 22 years of age, was allowed to testify of the marriage of his Aunt Linda, and of her death, and of the birth and death of her said infant, which events occurred before the birth or the personal recollection of the witness. Objection was interposed to the admission of this testimony, with motion to exclude the same. This motion was overruled by the court, and to this action of the trial court exception was duly reserved. In appellee's argument it is insisted that under the rule laid down in Scheidegger et al. v. Terrell, 149 Ala. 338, 43 So. 26, this testimony was admissible, though it was not shown by the evidence that the facts so testified to by Robert De Yampert were based on declarations of since deceased members of his family.

It is therefore necessary that we examine the decisions touching the admission of testimony as to pedigree. Chief Justice Anderson recently stated the general rule (Landers v. Hayes, 72 So. 106) as follows:

"The rule seems to be that hearsay evidence is always admissible to prove pedigree, and this term embraces not only questions of descent and relationship, but also the particular facts of birth, marriage, and death and the time when these events may have happened. *** These declarations, however, whether in writing or by word of mouth, should be confined to some members of the family as distinguished from a general rumor or neighborhood reputation, and as a predicate therefor it must appear that the declarant has since died."

And see, on this subject, White v. Strother, 11 Ala. 720; Cherry v. State, 68 Ala. 29; Rogers v. De Bardeleben C. & I. Co., 97 Ala. 154, 12 So. 81; Elder v. State, 123 Ala. 35, 26 So. 213; Chambers v. Morris, 159 Ala. 606, 48 So. 687; Palmer v. State, 165 Ala. 129, 51 So. 358.

The expression in Scheidegger et al. v. Terrell, supra, to the effect that in matters of pedigree the "general repute in the family," and "family tradition," may be testified to by a member of the family, requires a specific definition. The first authority cited by Judge Simpson in Scheidegger's Case is that of 1 Elliott on Evidence (section 371), where Mr. Elliott cites no authority in support of his statement that "family tradition and repute" may be given in evidence. In 1 Greenleaf on Evidence (12th Ed.) § 103; Id. (16th Ed.) § 114, C, the statement that " 'general repute in the family,' proved by the testimony of a surviving member of it, has been considered as falling within the rule," is based on the authority of the case of Doe v. Griffin, 15 East, 293. In 2 Best on Evidence (Am.Ed., with Morgan's Notes) 498, it is said that matters of pedigree may be shown by the "general reputation of a family." No authority is cited in support of the statement. If, by the expressions "general repute in the family" (Greenleaf), "general reputation of a family" (Best), and "family tradition and repute" (Elliott), the authors meant general opinion and belief however acquired, the case cited by Greenleaf on the point does not support the text.

In Doe v. Griffin, supra, an action of ejectment, the question for decision was whether Thomas Griffin, a younger brother of the person last seised, through whom both the lessor of the plaintiff and the defendant were to establish title, if at all, had died without issue, which fact it was incumbent on the plaintiff to show. For this purpose, one of the family had been called to prove that, many years before, the said Thomas, when a young man, had gone abroad, and that family report was that he had afterwards died in the West Indies; and that witness had never heard in the family of the said Thomas Griffin's having been married. The defendant moved for a new trial on the ground that this "was not sufficient evidence for the lessor of the plaintiff, on whom the affirmative proof lay, that Thomas had in fact died unmarried and without lawful issue." Lord Chief Justice Ellenborough, refusing the rule, declared that the evidence "was sufficient to call upon the defendant to give prima facie evidence, at least, that Thomas was married; for what other evidence could the lessor be expected to produce that Thomas was not married, than that none of his family had ever heard that he was?"

It is thus evident that Lord Ellenborough considered that no question was made in respect of the death of said Thomas, but only of his marriage vel non. The witness had testified, as a member of the family, that she had never learned that he was married. It was not a question of reputation in the nature of an opinion, but a negative fact had been established and the effect of the holding was that the actual knowledge of the witness tended to do this, in such wise as to shift the burden of evidence to the defendant. It must be observed that these learned authors speak of family history and repute as something to be proved by a surviving member of the family, and impliedly say that such history and repute must have come down to him from deceased members of the family.

Mr. Wigmore (Evidence, vol. 2, § 1481) has deduced several rules for the introduction of evidence of pedigree. He thought that the reason of the rule was indicated in such phrases as, "no living witness can be had" (Vowles v. Young, 13 Ves. 140; Berkley Peerage Case, 4 Camp. 409; Ellicott v. Pearl, 10 Pet. 434, 9 L.Ed. 475), and in the statement that such evidence is admissible because living witnesses cannot "often" (Fulkerson v. Holmes, 117 U.S. 389, 6 Sup.Ct. 780, 29 L.Ed. 915) or "usually" be had (Vowles v. Young, supra), or that it is "the only evidence which can be obtained" (Eisenlord v. Clum, 126 N.Y. 552, 27 N.E. 1024, 12 L.R.A. 836). Such declarations indicate that "where any living witness to the matter, particularly a member of the family, can be had, no hearsay statement of any deceased person can be received, *** where the evidence is offered in the shape of family reputation, *** unless it appears that members of the family cannot be had to testify," "there is in strictness no necessity of resorting to the hearsay of the family." The necessity for hearsay evidence lies in the inability to procure the declarant to testify, by reason of his death, insanity, or permanent or indefinite absence from the realm. Lowe v. State, 86 Ala. 47, 5 So. 435; Jacobi v. State, 133 Ala. 1, 32 So. 158; Jacobi v. Alabama, 187 U.S. 133, 23 Sup.Ct. 48, 47 L.Ed. 106.

Mr. Jones defines the expressions "repute," "reputation" or "tradition," touching matters of pedigree, as "such declarations and statements respecting the pedigree as have come down from generation to generation from deceased relatives in such a way that even though it cannot be said or determined which of the deceased relatives originally made them, or was personally cognizant of the facts therein stated, yet it appears that such declarations and statements were made as family history ante litem motam, by a deceased person connected by blood or marriage with the person whose pedigree is to be established," and cites Elder v. State, 123 Ala. 35, 26 So. 213, and many other authorities. 2 Jones on Ev. § 312, p. 707.

The expression in Scheidegger et al. v. Terrell, supra, "the general repute in the family," must be held to mean declarations of deceased members of the family made ante litem motam, and family history and tradition handed down by deceased members of the family ante litem motam. The trial court committed reversible error in permitting the witness, Robert De Yampert, to detail the general repute in his family as to the marriage of his Aunt Linda to Duncan, as to the birth of her child, and as to its death and the death of the said Linda, without predicate laid that the declarants from whom the information came were not living at the time of the trial.

In the case of In re Taylor (D.C.) 188 F. 479, the respective jurisdictions of the clerk of the United States District Court and of the referee in bankruptcy, as to certain of the proceedings in the matter of the estate being administered in the bankrupt court, are discussed by Judge Grubb. See, also, In re Hockman (D.C.) 205 F. 330, 30 Am.Bankr.Rep. 921.

The petition to reopen the bankrupt's estate, the order referring that petition to the referee, the decree reopening the estate, and the application for, and the decree of discharge properly certified by the...