In re Garr's Estate

• Decision Date: 24 August 1906
• Docket Number: 1724
• Citation: 31 Utah 57,86 P. 757
• Parties: In re GARR'S ESTATE
• Court: Utah Supreme Court

86 P. 757

31 Utah 57

In re GARR'S ESTATE

No. 1724

Supreme Court of Utah

August 24, 1906

Appeal from District Court, First District; T. D. Lewis, Judge.

Judicial accounting by A. E. Cranney, as administrator of John T Garr, deceased. From an order directing distribution of intestate's estate to his collateral next of kin, as against the heirs of a son of intestate born out of wedlock they appeal.

REVERSED.

George Q. Rich and James C. Walters, for appellants.

APPELLANT'S POINTS.

The rule of law, that statutes in derogation of common law should be strictly construed, has been by statute expressly abrogated in Utah since 1884 as to all civil matters. (Laws of Utah 1884, p. 154; sec. 2489, Rev. Stat. 1898.) They are to be liberally construed. (In re Jessup's Estate, 21 P. 979.)

In the very learned opinion, in the case of Dickenson's Appeal, which we commend for the perusal of the court, upon the subject of illegitimacy, it is said, "The general tendency seems to be one of liberality." (19 Am. Rep. 653, 42 Conn. 491; Brewer v. Hamor (Me.), 22 A. 163.)

Declarations concerning pedigree are an exception to the rule as to the admission of hearsay evidence, but they must be confined to the declarations of those related by blood or marriage to the person whose parentage is in question." (Jones, Evidence, No. 316; Greenleaf, Evidence, No. 103; DeHaven v. DeHaven, 77 Ind. 236.)

It is admitted by the record in this case that Johnny Garr was born a bastard child. His only relatives of the blood therefore would have been the members of his mother's family and it cannot be contended that William Garr was related in any way by marriage to Johnny Garr, and being neither related by blood or marriage his statement to the witness Riggs ought to have been excluded by the court. (Blackburn v. Crawford's Lessee, 3 Wall. 175, 18 L.Ed. 196; Elliott v. Piersol, 1 Pet. 326, 7 L.Ed. 164.)

Frank D. Nebeker and J. D. Murphy, for respondent.

RESPONDENT'S POINTS.

"Laws on the subject of descent, dower, curtesy, etc., are subject to the control of the Legislature and estates derived under such laws are controlled by the laws in force at the time of the death of the person from whom they are derived." (Hanson v. Moore, 104 Ill. 403; Armstrong v. Lear, 33 (U.S. [8 Pet.], 52 L.Ed. 863; Brewer v. Hamer [Me.], 22 A. 161; Carroll v. Carroll, 20 Tex. 731.)

The section of the statute refers only to the child of a deceased; there is nothing in it with reference to children's children; there is nothing that can be tortured into a claim that our Legislature sought to confer any benefit upon grandchildren. (Curtis v. Hewins, 52 Mass. [11 Mut.] 294; Steckel's Appeal, 64 Pa. 493.) The authorities are all to the effect that the acknowledgment of a bastard child must be subsequent to the passage of law conferring inheritable rights upon him. (Stevenson's Heirs v. Sullivant [U.S.], 5 Wheat. 207; Hartinger v. Ferring, 24 F. 15; Brown v. Delmarde, 3 Kan. 35; Appeal of Gruff, 58 Pa. 55; Appeal of Neil, 92 Pa. 193.)

The whole tenor of Kentucky decisions and the settled law of that state being that children of bastards cannot inherit from the ancestors of that bastard, he dying before the ancestor. (Berry v. Owen's Heirs, 68 Ky. 452; Allan v. Ramsey's Heirs, 58 Ky. 635; Jackson v. Jackson, 78 Ky. 390; Sutton v. Sutton, 87 Ky. 216.)

As supporting the doctrine that declarations of deceased members of either branch of a family, whose relationship is in issue are admissible, we cite the following: 16 Cyc., p. 1228; Crawford v. Blackburn, 17 Md. 49; Northrop v. Hale, 76 Me. 306, 49 Am. Rep. 615; Fowler v. Simpson, 23 Am. St. Rep. 371.

BARTCH, J. McCARTY and STRAUP, JJ., concur.

OPINION

BARTCH, J.

John T. Garr died intestate in Cache county, Utah on the 30th day of October, 1900, and left an estate consisting of real and personal property. On December 29, 1900, A. E. Cranney, one of the respondents herein, was appointed administrator of the estate, and has since been acting as such officer. On June 1, 1903, the administrator filed a petition for distribution of the estate, in which he alleged that the brothers and sisters and issue of the deceased brother and sister are the sole heirs at law of the deceased, and prayed that the decedent's property be distributed to them, that the administration be closed, and that he be discharged as administrator. On June 25, 1903, Elizabeth Ann Garr, the general guardian of the persons and estates of Merel, Mila, Johnnie D. and Deloris Garr, they being the legitimate minor children of the petitioner and one Johnnie Garr, deceased, filed an answer and cross-petition, in which she denied that the collateral kin, mentioned in the administrator's petition, are heirs at law of John T. Garr, deceased, and alleged that Johnnie Garr, deceased, the father of the minor children mentioned, was the illegitimate son of the decedent, John T. Garr; that the minors are the decedent's grandchildren, his only lineal descendants, and his sole and only heirs at law-- and prayed that the decedent's estate be distributed to them. Both petitions were heard together, and the cause was finally submitted for decision, and by the court taken under advisement on July 10, 1903; and on December 19, 1904, the court found and held that the collateral kin are the sole and only heirs at law of John T. Garr, deceased, and decreed distribution of the estate to them. Thereupon the cross-petitioners prosecuted this appeal, and have assigned various errors.

It appears to be admitted that John T. Garr, deceased, was an unmarried man, a bachelor; that the cross-petitioners claim to be his grandchildren by reason of him having an illegitimate son, Johnnie Garr, the father of the cross-petitioners, by an Indian woman, name unknown, in the pioneer days in Cache county; that the said alleged son was a half-breed Indian; that the persons to whom the estate has been decreed by the trial court are the collateral kin of John T. Garr, deceased, in case Johnnie Garr, deceased, was not John T. Garr's son; that Johnnie Garr, the alleged illegitimate son, died intestate, in the year 1896, prior to the death of his alleged father, and left surviving him his widow, the guardian, and four minor children, the cross-petitioners.

The first question presented for determination is whether the evidence, taken all together, establishes the fact that Johnnie Garr was the illegitimate son of John T. Garr. The court found and held that the paternity of Johnnie Garr was not established, and counsel for the respondents insist that there is some conflict in the evidence, and that, the trial court having heard and observed the witnesses upon the stand while testifying, this court ought not to disturb its holding on this point. These reasons for the well-known rule invoked, however, even if the rule applies to probate proceedings, lose much of their efficacy where, as here, nearly a year and a half elapse from the time of observing and hearing the witnesses before the decision of the case. Where a case is held for such a length of time under advisement as in this instance, we apprehend that the advantages which flow or ought to flow from observing the manner and bearing of the witnesses while on the stand will, through the trial of other causes and transaction of other business, have become well-nigh vanished, and that that court, when it finally passes upon the matter, is in little, if any, better position to weigh the evidence than are we. But, however this may be, upon very careful examination and consideration of the evidence presented in this record, we are unable to sanction the finding and holding of the court upon this point.

It appears from the evidence that about August, 1855, and for some time thereafter, John T. Garr was in Cache Valley working on what was known as the "Church farm," and was unmarried; that a band of Indians were located about half a mile from the ranch or farm, having among them a quite good-looking young Indian woman, about eighteen or twenty years old, who attracted considerable attention; that the white people and those Indians were on quite friendly terms, considerable intimacy existing between them; and that occasionally some of the Indians went to the ranch, and this young Indian woman, from August on through 1855 and early part of 1856, used to go there, at various times, when she and John T. Garr would be noticed in the presence of each other and their association regarded rather more intimate than was common among men and Indians at that time. At first John T. lived on the Church farm, but afterwards he, with three brothers, resided at Millville, near that farm, where they had bachelor's quarters. In 1856 or 1857 (the exact date does not appear from the evidence) this Indian woman was first seen with the Indian baby, afterwards called Johnnie Garr. The witness Dowdle, who was there during those years, and knew the Indian woman, and had previously, on various occasions, seen her in company with Garr, testified that, when he first saw her with the papoose, the mother said the child was John T. Garr's, and that he afterwards told him what she said. His testimony on this point is as follows: "I told him, when I met him, as I said before, that that woman laid the child to him, and I questioned him upon that subject, and asked her--she said, in fact-- She said, when-I asked her whose it was she said, 'White man, Cache valley.' Says I, 'Who is white man?' Says she, 'Nampawammock.' I told that to John T. Garr when I met him. Says he: 'That's all right. If she wants to lay it to me, it's all right. She can do so.'" Nampawammock was the name, in Indian dialect, by which John T. Garr was known. John T. Garr took the Indian boy, while yet an infant, to his...