In re Wallace's Estate

• Decision Date: 29 October 1892
• Citation: 25 A. 260,49 N.J.E. 530
• Parties: In re WALLACE'S ESTATE.
• Court: New Jersey Supreme Court

25 A. 260

49 N.J.E. 530

In re WALLACE'S ESTATE.

Prerogative Court of New Jersey.

Oct. 29, 1892.

(Syllabus by the Court.)

The facts fully appear in the following statement by McGill, Ordinary :

Josiah Wallace died, intestate, at Palmyra, in Burlington county, on the 11th of May, 1891, leaving an estate valued at nearly' $500,000. On the 19th of May, in the same year, George D. O'Neil, claiming to be his grandson, caveated against the grant of administration upon his estate. On the 23d of the same month, Ann S. Rudderow, the only sister of the decedent, renounced her right to administer, and asked that William R. Lippincott, Albert C. Heulings, and Israel Roberts, one only of whom, William R. Lippincott, is of kin to the decedent, be appointed administrators of the estate in her stead; and a few days later 24 of the nephews and nieces of the decedent, children of his deceased brothers and sisters, composingall but one or two of their class, asked for the appointment of the same gentlemen. The right to administration was tried by the orphans' court, between George D. O'Neil upon the one part, and the sister and nephews and nieces of the decedent on the other part. The issue was as to the legitimacy of the relationship claimed by O'Neil. After hearing the evidence offered, the court decided, using the language of its decree, "not to ignore one set of claimants against the other," and proceeded to appoint two disinterested persons administrators. Upon appeal to the prerogative court, the decree of the orphans' court was reversed, administrators of the estate pendente lite were appointed, and the prerogative court proceeded to determine the right of administration upon the evidence procured in the orphans' court, and, as well, upon additional proofs taken under its own order. The present decision determines the right to administration.

Scovel v. Harris and Jacob C. Hendrickson, for George D. O'Neil.

Samuel K. Robbins and Charles E. Hendrickson, for Ann S. Rudderow and others.

MCGILL, Ordinary, (after stating the facta as above.) The claim in behalf of the caveator, shortly stated, is this: On the 20th of June, 1835, Josiah Wallace married a woman named Elizabeth D. Weaver. On the 26th of May, 1836, Elizabeth gave birth to a son, who was called Alphonso. Alphonso married Susan A. Voght in 1859, and, as the fruit of their union, the caveator was born on the 14th of February, 1860. After the birth of the caveator, who was also named Alphonso, Alphonso, the father, enlisted in the army, and for several years disappeared. His wife being left in destitute circumstances, after three or four years permitted one Daniel O'Neil, of Pittsburgh, Pa., to adopt her son, and the boy thereby became known by his adopted father's surname, and was given the Christian name George. The substantial dispute is as to the marriage of Josiah Wallace to Elizabeth D. Weaver. There is so little room to doubt that O'Neil is the legitimate son of Alphonso, and that Alphonso was the natural son of Josiah Wallace, that I assume those conditions to exist without discussing the evidence which has been offered to establish them. The important and chiefly disputed question is whether Josiah Wallace married the mother of the elder Alphonso, whom I will hereafter refer to simply as Alphonso, styling his son O'Neil, or the caveator.

Josiah Wallace was born in Burlington county in August, 1802. He was the son of a farmer. As he grew up to manhood he learned the trade of a wheelwright, and for a time pursued that trade at Mt. Holly. Some time after 1825, it is not definitely known when, he went to Camden, and there pursued the same trade, first under a man named Glover, and then for himself. He appears to have remained in Camden until early in the year 1836, when he returned to Palmyra, and resumed his home with his mother, his father having died in 1832. The evidence fails to disclose where he resided or what was his method of life while he worked in Camden, hut from his return to Palmyra, in 1836, until his death, in 1891, it exhibits a continued residence among his relatives in Burlington county. The remembrance of a nephew, who is now upwards of 70 years of age, is that shortly after Mr. Wallace came back to Palmyra he was arrested and taken to Camden, and that it was then talked in the family that the arrest was upon a charge of bastardy which the decedent had settled by the payment of money. Another (older) witness also remembers the report that Wallace had some trouble with a woman, and had paid her money in settlement of it After the decedent's death there were found in an old chest belonging to him, which had been left in the garret of the house of Elias Morgan, at which he resided some 19 or 20 years before his death, among some other papers belonging to him, a general release, purporting to be signed by Elizabeth D. Weaver, and witnessed by Fred. Tolbert. This document has the appearance of an old paper, and bears date of February 29, 1836, about three months before the birth of Alphonso. In consideration of $200 it releases Josiah S. Wallace from all claims and demands of Elizabeth D. Weaver, past or present. When it was found there was inclosed in it another apparently old document, in the handwriting of Wallace, of which the following is a copy: "A copy of a letter sent to E. D. W.: Miss E. D. W. You seem to give yourself a great deal of unnecessary trouble in riting to me, and of getting others to write, and writing to others that know you not nor care about yon. I will name one called Marlinda Howard that is a very able writer (with you at her elbow.) I will tell you that she and her dictators are liars and if a man was to tell me as she has wrote and about those or the one that I cherished a sentiment of more than mere friendship for, and are now no more, I would find them out, I would put a ledding ball through their hearts, but as she is a broken-down old hag I leave her to welter in her own lies; as she has but a few years in store the devil will soon get his own. I was told by a friend or enjury of mine that you told him that if I did not come to see yon that you would come to see me. You may come and be damined as soon as you please; Marlinda may come if she will; she will not find old Mr. B. C. but she will feel a gentlemans foot, and that covered with something harder than gum elastic. You and Marlinda and all your coleagus may * * * do your worst; you will find me to have a nerve that will never surrender to your hellish desires; you seem to be desirous to let people know that you are mother of what is called by law an illegitimate child, and as the manner is slow, that of sending letters and the child telling people in the market I will recommend a sucher way; you had better get say one or five hundred hand bill printed, and then send him through all the markets in Philadelphia and distribute them; be shure to have printed in large letters on the bills that I Elizabeth D. Weaver"—

This paper is without date or signature, but, from events to which it refers, I think, for the reasons I will hereafter state, that it was written in the year 1818. It is impossible to say, with entire satisfaction, from its appearance alone, that it is an ancient writing. It derives its probative force from the custody from whence it came, the handwriting, its inclosure with the release, and correspondence in statement with facts disclosed by the proofs, to which I will, as I have intimated, hereafter refer. It does not appear that any effort was made to find the subscribing witness to the release, or to ascertain if he ever existed. The evidence relied upon to establish it is that it came from the custody of the decedent, is apparently an old paper, and purports, by its date, to have been made more than 30 years ago. After the return of Wallace to Palmyra, he appears to have adopted the trade of house painter, and to have pursued that trade about the county until 1865. After that year he appears to have had no occupation except the investment of his fortune, which, by close economy and judicious investment, at his death reached the proportions already stated.

Direct proof of a marriage between Mr. Wallace and Elizabeth Weaver, by witnesses, has not been attempted. The evidence offered to establish it is proof of co-habitation and repute, and declarations and admissions by word and by conduct. Where a man and woman constantly live together, ostensively as man and wife, demeaning themselves towards each other as such, and are received into society and treated by their friends arid relations as having and being entitled to that stains, the law will, in favor of morality and decency, presume that they have been legally married. Such cohabitation and repute is said to be matrimonial, in distinction from that occasional, hidden, and limited cohabitation and repute which marks the meretricious relation. It is always a question whether the cohabitation proved is of the character which will raise a presumption and make prima facie proof of marriage. At best, it can do no more, for the presumption may be rebutted. The rule of evidence in this respect is clearly and concisely stated by the present chief justice in Collins v. Voorhees, 47 N. J. Eq. 555, 22 Atl. Rep. 1054, in these words: "It is to be borne in mind that cohabitation, with matrimonial habit and repute, is, standing alone, nothing more than testimony in proof of marriage. The conduct of the persons to whom it relates does not constitute marriage, and consequently, from its evidential nature, it is liable to be rebutted by other proofs." A few expressions of Chief Justice Agnew, in Yardley's Case, 75 Pa. St. 207, will serve to illustrate that which is meant by matrimonial cohabitation. He says: "But it is a misnomer to call the visits of Howard Yardley to Elizabeth Sithens cohabitation. It was lacking in its chief element,—constancy of dwelling together. * * * His visits to her were of...