Flora v. Anderson

• Decision Date: 26 June 1896
• Docket Number: 4,770.
• Parties: FLORA v. ANDERSON et al.
• Court: U.S. District Court — Southern District of Ohio

75 F. 217

FLORA v. ANDERSON et al.

No. 4,770.

United States Circuit Court, S.D. Ohio, Western Division.

June 26, 1896

John W Menzies, E. W. Hawkins, L. H. Swormstedt, and Foraker &amp Prior, for complainant.

Wm Worthington and Thos. McDougall, for respondents.

SAGE District Judge.

The complainant sues to recover two-twelfths of the estate of Nicholas Longworth, claiming as the illegitimate son of Eliza Longworth Flagg, under the will of Nicholas Longworth, her father, executed on the 25th of March, 1859, and under the codicil thereto, executed the 15th of January, 1862, whereby he devised to Larz Anderson, his son-in-law, and to Joseph Longworth, his son, who were named as executors, two-twelfths of his estate, in trust for the benefit of his daughter Eliza Longworth Flagg, during her life, with remainder to 'the issue of her body surviving her,' and in default of such issue to his son, Joseph Longworth, and his grandson, John L. Stettinius. Nicholas Longworth died on the 17th of February, 1863. Eliza Longworth Flagg died December 13, 1891, without issue of her marriage. To maintain his claim, the complainant must establish: First, that he is the illegitimate son of Eliza L. Flagg; and, second, that if so, he is entitled under the will to the remainder devised to 'the issue of her body surviving her.'

The testimony-- that for the complainant covering 787 printed pages, and that for the defendants 875 typewritten pages of legal cap, besides numerous exhibits on each side-- is too voluminous for detailed comment. That, however, is not necessary to the proper consideration of the case. The testimony offered on behalf of the complainant is founded almost altogether upon rumor and hearsay. Of the total number of 58 witnesses examined on his behalf only 5 testified to statements alleged to have been made to them by members of the Longworth family. Later in this opinion the testimony of these five will be, so far as may be necessary, specially considered. The story which the witnesses tell is, in short, that early in July, not earlier than 1823 nor later than 1825, the complainant, then an infant a few days old, was, in pursuance of an arrangement previously made, delivered by agents of Nicholas Longworth and of Eliza, his daughter, to James Flora and wife, to be raised. The preliminary arrangements were made by a man who represented himself to be Nicholas Longworth's gardener. The child was taken from Cincinnati, and delivered to Mr. and Mrs. Flora for safe keeping, by Davis Carneal, who was the husband of a half-sister, of the mother of Eliza Longworth, and who, it is testified, stated, without any attempt at concealment, that the child was the son of Eliza Longworth. The story, further, is that money and clothes were furnished, through the gardener by the family of Nicholas Longworth, and that the child, when six months old, was visited by him. All this, excepting only what relates to the statement of Davis Carneal, is upon hearsay, from persons not belonging or in any way related to the Longworth family, the witnesses detailing statements which they claim were made to them or in their hearing, in some cases 30 years, in others 50 years or more, before the evidence was given. It is further claimed, on like testimony, that when complainant was between 10 and 12 years of age, Nicholas Longworth on two occasions recognized him as 'the boy that was taken over to Flora's,' and that in 1863, he was recognized by Larz Anderson as 'a member of the Longworth family. ' Reliance is also placed upon alleged declarations by Nicholas Longworth in the spring of 1845 and in December of that year to a certain Mrs. Dick that the complainant was the son of his daughter, Eliza Longworth; also upon Mrs. Dick's testimony to certain alleged admissions to her by Eliza Longworth to the same effect. These will be further considered in the discussion of her testimony.

The defendants, not admitting the competency of any of the evidence relating to the taking of the complainant to Kentucky and committing him to the care of James W. Flora and wife, call attention to the discrepancy between the alleged statements of the man who represented himself to be the gardener of Nicholas Longworth, and who said that the infant was the child of a woman who was dead, and the alleged statement of Davis Carneal, who said that the child was Eliza Longworth's, and that 'it was a smuggled piece of business'; also to the extreme improbability that Carneal would go over to Kentucky publicly proclaiming the very fact to conceal which the child was sent away, and, which known, would ruin the reputation and wreck the life of Eliza Longworth, and bring shame and disgrace upon all immediately related to her, including himself, he being her uncle; a fact moreover which it was not at all necessary to disclose. In this connection the rule stated in section 200 of Greenleaf on Evidence that verbal admissions ought to be received with great caution, because the evidence, being a mere repetition or stating the substance of oral statements, is subject to much imperfection and mistake, the party himself either being misinformed, or not having clearly expressed his own meaning, or the witness having misunderstood him, is peculiarly applicable. 'It frequently happens, also,' says Mr. Greenleaf, 'that the witness, by unintentionally altering a few of the expressions really used, gives an effect to the statement clearly at variance with what the party actually did say.' John Thatcher, the only witness who claims to have heard Davis Carneal make any statement relative to the taking of the complainant, when but a few days old, to Kentucky, undertook to detail statements made in his hearing, when he was a boy of 14, more than 70 years before he gave his deposition.

With reference to the alleged first recognition of the complainant by Nicholas Longworth, the evidence is to be found in the testimony of the complainant himself, who does not pretend that Mr. Longworth recognized him as his grandson or relative. His testimony is that when a boy he came to the city with a boat load of wood, and Mr. Carneal came to the boat, and took him up town to 'see a man and see the town. ' They met on the street an old gentleman, whom Mr. Carneal accosted as Mr. Longworth, and introduced complainant as the boy that was taken from Cincinnati to be raised by James Flora and Sarah, his wife. He says that Mr. Longworth, taking him by the hand, asked him if he went to school, and if he was well satisfied, and well treated; that he answered all these questions in the affirmative; and then Mr. Longworth patted him on the shoulder, and said, 'You be a good boy, and you will be well compensated hereafter. ' Then Mr. Carneal and he went one way and Mr. Longworth another. About two years after that he came to the city with another boat load of wood, and Mr. Colbert, the owner of the boat, went up Pike street with him. As they were passing in front of Mr. Longworth's residence, that gentleman was coming from his house to the street. He looked at complainant, and asked Colbert if that was John who was with Corneal. Complainant said he was. Then Colbert left him, and walked on. Mr. Longworth shook hands with him, invited him into his house. He went into the lot, but did not go to the house. Mr. Longworth took him into his wine house, which was separate from the dwelling house, and showed him his 'wine garden,' as he called it. After looking through that, they walked back to the street, where they parted, Mr. Longworth inviting him to come again. After that he met Mr. Longworth several times on the street, but never saw him after 1843, the date of complainant's marriage.

He further testifies that in 1851 or 1852, at Newport, Ky., he met and was introduced to Mr. Larz Anderson by Mr. Richard Tarvin Baker, who presented him as the boy who was taken from Cincinnati to Flora and wife saying 'I want to introduce you to one of your relations,' and that Mr. Anderson responded, 'Yes, he is a member of the Longworth family ' His next meeting with Mr. Anderson was in October or November, 1863, at his own house. He prefaces the account of that meeting by stating that a Mrs. Kautz recommended him and his wife to go there; that she came there to his house in May or June, 1863, from New Richmond, he never having heard of her before that time, and said that she was sent there by Eliza Flagg, to see him; that he was a grandson of Nicholas Longworth, and that Eliza Flagg, whose maiden name was Eliza Longworth, was his mother; that Mrs. Flagg, had told her so with her own mouth, and wanted him to come and see her. That was in May or June, 1863. In September of the same year she returned, and remained some two weeks. At that time she told the complainant that Mrs. Flagg had sent her again with four photographs; one of Mr. Longworth, one of his wife, one of herself, and one of Mr. Larz Anderson. These photographs were identified, and offered in evidence. At that time also she said that Mrs. Flagg wanted complainant to go and see her. In October or November of 1863 he testifies that his wife and himself came to Cincinnati to see Mrs. Kautz at her house in the vicinity of where the Union Central Railroad passenger station now is, and that Mrs. Kautz told them that Mrs. Flagg had gone to New York, and advised them to go and see Mr. Larz Anderson. Accordingly they went to Anderson's house, at the corner of Pike and Third streets. They met Mr. Anderson and his wife on the steps, and told them that Mrs. Kautz had directed them there for information, complainant stating to Mr. A. that he had always been told that Eliza Flagg or Eliza Longworth was his mother and Davis Carneal his father. Mr. Anderson made no reply. He then reminded Mr. Anderson...