Moore's Heirs v. Shepherd, &C.
| Decision Date | 25 September 1865 |
| Citation | 63 Ky. 125 |
| Parties | Moore's heirs vs. Shepherd, &c. |
| Court | Kentucky Court of Appeals |
APPEAL FROM TAYLOR CIRCUIT COURT.
HOOE & GAITHER, HUNT & BECK, and A. J. JAMES, for appellants.
BRAMLETTE & VAN WINKLE, HARLAN & HARLAN, for appellees.
A very voluminous record of multitudinous facts, apparently conflicting, makes this case vexatiously difficult, and stamps on its face an extraordinary impress peculiarly dramatic, and, therefore, signally interesting.
The great issue is personal identity, involving the question — which of two men, perhaps three, and possibly four, named William Perry Moore, was the son of John S. Moore, deceased, of Monticello, Wayne county, Kentucky, to whom, as heir of the decedent, was allotted an estate for which the appellants, as the infant daughters of one of the William Perry Moores, brought this suit in equity in the year 1854, about one year after their father's death, in Baltimore, whither he had removed about the year 1845, from Columbus, Georgia.
William Perry Moore, the son of John S. Moore, was born in Monticello, and there resided until June, 1835, when, in his eighteenth year, indignant at an ignominious chastisement by his mother, who, after his father's death, had married Isaac Shepherd, he secretly left Kentucky, declaring that she should never again see or hear of him. He left in the night on a horse, taken without leave, from his step-father, but soon restored to his possession by a mail-carrier, to whom it was delivered for that purpose, and the fugitive never returned to Kentucky, or was heard of by his mother until the year 1841, when she heard that a man of his name, likeness, and age, was residing in Columbus, Georgia. That man entered Columbus about the first of the year 1838, married there in 1840, acted there as town constable, and there the appellants were born, and to two of whom he gave the names of two of the John S. Moore's daughters whom he claimed as his sisters.
In 1841-2, some acquaintances of the fugitive's mother, driving stock to the Columbus market, were requested by her to see the W. P. Moore residing at that place, and ascertain whether he was her son. They accordingly saw him and interrogated him, and reported, and afterwards testified, that, though he resembled her son, seemed to know her daughters and their names, and the names of their husbands, and also the names of other persons in and near Monticello, and said that he was born there, yet, as he did not seem to remember some other persons with whom her son had been intimate, and, moreover, appeared evasive and inconsistent in his conversation, they were inclined to the opinion that he was not her son. This report, and the fact that a letter she had addressed to him was answered in the handwriting of his wife, induced her to renounce and denounce him as an impostor; and when, after his death, his wife and children came to Monticello to repel all imputation of imposture, and claim the estate in the hands of the wanderer's mother as his guardian, she refused to recognize them or their claim, and this suit soon followed that non-recognition and refusal.
The issue of personal identity was, on the motion of the appellants, with the apparent concurrence of all parties, submitted to a jury, who found that the father of the appellants was the son of John S. Moore, of Monticello. That verdict was set aside on affidavits for a new trial, for new testimony.
A similar verdict by another jury stood the test of another motion for a new trial, which was overruled, and thereupon the case was continued. Afterwards, without noticing the judgment overruling the motion for a new trial, a new judge permitted other trials, in which there was no verdict; and, finally, another judge, dispensing with a jury, dismissed the petition, from which judgment this appeal is taken.
A question of fact and a question of law are presented for our consideration. 1st. What is the most rational deduction from the testimony? 2d. What is the legal effect of the second verdict and of the judgment overruling a motion for a new trial?
1. The concurrent testimony of his family relations, and other intimate acquaintances, describes the person of William Perry Moore, the son of John S. Moore, of Monticello, when he left that place, as peculiarly characteristic and substantially as follows: About eighteen years of age; about five feet nine and a half inches high; weight from 160 to 170 lbs.; shoulders broad and rather stooped; breast correspondently thin and hollow, indicative of hereditary consumption. Hair light brown; eyes bluish grey; skin fair, with sallow tinge; hands and feet large; port careless, awkward, and abrupt; a small scar, nearly round, on the edge of the left jaw; an eliptical scar ranging from the inner corner of the left eye, through the brow, to the left temple; a dimple in the chin, and another on the left cheek. And, with full and exact precision, the same description is given of the father of the appellants by a multitude of his acquaintances in Columbus, Georgia.
Two of the Monticello witnesses testified, also, that the Wm. Perry Moore, who was the son of John S. Moore, had, by fracture or otherwise, lost a corner of one of his front teeth; and exhumation of the father of the appellants disclosed the same dental defect, and also the impress on the skull of the scar through the left eyebrow. Had those two witnesses testified falsely, it is almost certain that their error would have been proved by the other Monticello witnesses who testified against the appellants. The fact thus testified to must be, therefore, accepted as established.
And the testimony of several of his acquaintances in Baltimore described him exactly as the Georgia witnesses did, and proved that he died of pulmonary consumption, and had claimed Kentucky as his birthplace and title to property here.
All these minute and extraordinary coincidences would, if unrebutted by any other fact or circumstance, indisputably prove that the father of the appellants was the son of John S. Moore, of Monticello.
But, remarkable as it may be, there are some countervailing facts, both striking and perplexing.
1st. As before suggested, the father of the appellants sometimes seemed not to know persons in Monticello, and Wayne county, whom he should be presumed to remember, if he had been born and had lived there until he was eighteen years old. The only clue to this apparent inconsistency is his avowed determination to conceal himself from his mother as long as she might live. But the inquiry at once arises why did he, at the same time, and often, say that he was John S. Moore's son, and was, as one of his heirs, entitled to a fourth of his estate? The only answer is, that he was anxious, not to renounce or bar his claim, but to keep it alive, and, at the same time, to conduct himself in such a way as to make his repudiated mother doubt and even deny his identity. And it seems to us that this is a plausible and probably true explanation of his apparent contradictions and inconsistencies. And this construction is fortified by the significant fact, that, claiming John S. Moore's three daughters as his sisters, he gave to two of his own daughters the very peculiar names of two of those recognized sisters. Sarah Adelaide and Mary Evaline are the names of the two oldest of the appellants, and two of John S. Moore's daughters bear the same names.
This cogent coincidence, and the avowed and natural reason for it, are not neutralized by the...
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