In re Hurlburt's Estate

• Decision Date: 25 April 1896
• Citation: In re Hurlburt's Estate, 35 A. 77, 68 Vt. 366 (Vt. 1896)
• Parties: IN RE WAIT HURLBURT'S ESTATE GEORGE W. HURLBURT, APT
• Court: Vermont Supreme Court

35 A. 77

68 Vt. 366

IN RE WAIT HURLBURT'S ESTATE GEORGE W. HURLBURT, APT

Supreme Court of Vermont

April 25, 1896

JANUARY TERM, 1895.

Appeal from a decree of the probate court for the district of Chittenden. Trial by jury at the September term, 1893 Chittenden county, MUNSON, J., presiding. The jury returned a special verdict that Edmund W. Hurlburt was alive at the death of his father. Judgment and verdict for the appellee. The appellant excepts.

Judgment affirmed and ordered to be certified to the probate court.

W L. Burnap and Henry Ballard for the appellant.

OPINION

THOMPSON

The issue was whether Edmund W. Hurlburt was dead and if dead, whether he died before his father, Wait Hulburt did, which was on Dec. 14, 1884. It appeared that Edmund went to Devil's Lake, Dakota, some time in 1882 and continued to reside there and at Grand Forks, Dakota, living a rather reckless and dissipated life, till about Aug. 25, 1884, when he disappeared from Grand Forks, and has not been seen or heard of since. As tending to prove that he was dead, and that he died before his father did, the appellant offered to show by the mother and sister of Edmund, residents of Chittenden county, Vt., and his brother, George W. Hurlburt, the appellant in this case and a resident of Massachusetts, the general reputation in the family as to Edmund's death, not claiming that such reputation was derived from the declarations of any deceased member of the family. The offer was excluded.

In cases of pedigree, both in this country and in England, the declarations of deceased members of the family, made ante litem motam, before there was anything to throw doubt upon them, are admissible to prove pedigree. Such declarations are received as original evidence, and upon the ground of the interest of the declarants in the person from whom the descent is made out, and their consequent interest in knowing the connections of the family. The rule of admission is restricted to the declarations of deceased persons, who were related by blood or marriage to the person, and therefore interested in the succession in question. The term pedigree embraces not only descent and relationship, but also the facts of birth, marriage, and death, and the times when these events occurred. 1 Greenleaf Ev. s. 104; Stein v. Bowman, 38 U.S. 209, 10 L.Ed. 129. In England the rule is limited strictly to cases involving pedigree and does not apply to proof of the facts which go to make up pedigree, such as birth, death and marriage, when they have to be proved for other purposes. Haines v. Guthrie, L. R. 13 QB 818. But in this state, and generally in this country, we think, the rule goes further, and you may prove these facts in that manner in any case where they become material.

Counsel for appellant contend that in cases of pedigree, death may be proved by general reputation in the family, without regard to the source from which such reputation had its origin, or the time when it came into existence. They say that reputation as used in this connection means "opinion" or "established opinion," or "the opinion generally entertained" and that it is more limited in its scope than hearsay evidence, and while it may be the result of the latter, it is not necessarily dependent upon it and may exist without it.

It would be useless to attempt to reconcile the utterances of the various courts that have spoken directly or indirectly upon this subject. Counsel upon both sides have collected quite a number of cases bearing upon it, and there are still others germane to it, to which they do not refer. Upon careful examination, much that is said in many of them upon this subject, will be found to be wholly obiter dictum. Some of the cases on account of the alleged peculiar exigencies of those cases, substantially adopt the doctrine for which the appellant contends. In some instances the difference in the holding of various courts on this subject, has arisen from their not giving the phrase, family reputation, the same meaning when applied to matters of pedigree. Some American cases have held this kind of evidence admissible on the authority of 1 Greenl. Ev. (12th ed.), s. 103, where it is said, "general repute in the family, proved by the testimony of a surviving member of it has been considered as falling within the rule," admitting hearsay evidence in cases of pedigree. If by "general repute in the family," Greenleaf means general opinion or belief, however acquired, in the edition of his work on evidence to which we refer, he cites only one case that can be claimed to support the text on this point. That is Doe v. Griffin, 15 East 293, which was an action of ejectment. The question arose whether Thomas Griffin, a younger brother of the person last seized, through whom both the lessor of the plaintiff and the defendant were to make title, if at all, had died without issue, which was incumbent upon the lessor of the plaintiff to show before he could entitle himself to recover upon the general merits of the case. For this purpose Mrs. Jeffries, an elderly lady, one of the family, had been called to prove that Thomas had many years before, when a young man, gone abroad, and, according to the repute of the family, had afterwards died in the West Indies, and that she had never heard in the family of his 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 in fact died unmarried and without lawful issue. The entire opinion of the court, delivered by Lord Ellenborough, C. J., is as follows:

"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. Per Curiam. Rule refused."

It is evident that no question was made in respect to the death of Thomas. In effect, the witness testified that she, a member of the family, had never learned that he was married. It was not a question of reputation in the nature of an opinion, but a negative was to be established, and the actual knowledge of the witness that she knew of no marriage, tended to prove it. We do not think this case supports so broad a proposition as that laid down by Greenleaf, if by "repute" he means opinion. It is said in 2 Best Ev. (Am. ed. with Wood's notes), *631, that matters of pedigree may be shown by "general repute in family, proved by a surviving member of it," but no authority is cited to support the statement, nor does it appear in what sense the author uses the word "repute" in this connection. It is important to ascertain, if we can, what the words "repute in the family" and "reputation" signify when used in respect to pedigree. It will be observed that both Greenleaf and Best speak of family repute as something to be proved by a surviving member of the family, thus impliedly saying that it is something that has come down from deceased members of it, or that was known to them. In Hingham v. Ridway, 10 East 109, Le Blanc, J., says:

"On inquiring into the truth of the facts which happened a long time ago, the courts have varied from the strict rule of evidence applicable to facts of the same description happening in modern times, because of the difficulty or impossibility by lapse of time of proving those facts in the ordinary way by living witnesses. On this ground, hearsay and reputation, which latter is no other than the hearsay of those who may be supposed to have been acquainted with the fact handed down from one to another, have been admitted as evidence in particular cases."

This quotation is incorporated into 1 Phil. Ev. (ed. with C. H. & E.'s notes), 248, as a statement of the law in respect to the admissibility of hearsay evidence in cases of pedigree. In 1 Stark. Ev. 31, it is said:

"Reputation seems to be no more than hearsay, derived from those who had the means of knowing the fact. Hence, it is that reputation may exist when those who were best acquainted with the facts are dead, and such reputation and even traditionary declarations, become the best, if not the only means of proof."

In Goodright v. Moss, Cowp. 591, Lord Mansfield said: "Tradition is sufficient in point of pedigree." In the Berkley Peerage Case, 4 Camp. 401, Lord Mansfield, C. J., said:

"In cases of general rights which depend upon immemorial usage, living witnesses can only speak of their own knowledge to what has passed in their own time, and to supply the deficiency, the law receives the declarations of persons who are dead; there, however, the witness is only allowed to speak to what he had heard the dead man say respecting the reputation of the right of way, or common, or the like; a declaration with regard to a particular fact which would support or negative the right, is inadmissible. In matters of pedigrees, it being impossible to prove by living witnesses the relationships of past generations, the declarations of deceased members of the family are admitted; but here, as the reputation must proceed on particular facts, such as marriages, births and the like, from the necessity of the thing, the hearsay of the family as to these particular facts is not excluded."

In Monkton v. Attorney-General, 2 Russ & Myline 147, Brougham, Ld. Ch., said:

"Another restriction was a good deal pressed, that you cannot mount as it were, an hearsay upon an hearsay; but that what is given in evidence as hearsay must only be of the first degree, so to speak; in other words, that after connecting A. with the family, it is competent, after his death, to give in evidence declarations made by A. as to what...