Northrop v. Hale

• Decision Date: 10 June 1884
• Citation: 76 Me. 306
• Parties: JOHN A. NORTHROP, appellant, v. CLARENCE HALE, administrator.
• Court: Maine Supreme Court

76 Me. 306

JOHN A. NORTHROP, appellant, v. CLARENCE HALE, administrator.

Supreme Judicial Court of Maine.

June 10, 1884

ON EXCEPTIONS.

An appeal from the decree of the judge of probate.

The opinion states the case.

Nathan and Henry B. Cleaves, and M. P. Frank, for the plaintiff, cited: 1 Greenl. Ev. § § 103, 104; 1 Whar. Ev. § 208; Waldron v. Tuttle, 4 N.H. 378; Vowles v Young, 13 Ves. 146; Goodright v. Moss, Cowper 594; Tyler v. Flanders, 57 N.H. 626; Haddock v B. & M. R. R. 3 Allen 300; Hargrave v Hargrave, 2 C. & K. 701 (61 E. C. L. 702); Barnum v. Barnum, 42 Md. 304; Canton v. Bentley, 11 Mass. 442; Stein v. Bowman, 13 Pet. 220; Ellicott v. Pearl, 10 Pet. 434; Starkie, Ev. *1104; Reynold's Stephen, Ev. 53.

Drummond and Drummond, and Clarence Hale, for the defendant.

The testimony offered was properly excluded.

1. The rule admitting hearsay, or reputation, in certain questions of pedigree, cannot be extended to admitting testimony of a deceased relative to prove illegitimacy. The admission in certain cases of testimony as to declarations of certain relatives, in matters of birth, descent and kindred questions is an exception to the familiar rules of evidence, excluding hearsay, and is only permitted from the extreme difficulty of getting any testimony on such subjects. Such testimony is always looked upon with disfavor by courts, and only admitted from the necessity of the case, on the ground that the statements of members of the immediate family of a person, previous to a controversy, about such person's birth and descent are entitled to weight as being the best evidence the case affords. But courts have not permitted illegitimacy as a substantive fact to be proved by such evidence, for the reason that " a child, if illegitimate, can have no family; " and therefore the reason of the law in respect to family admissions fails. Taylor, Ev. (Ed. of 1872,) 535; Phillips, Ev. (Ed. of 1859,) 272; Crispin v. Doglioni, 3 S. & T. 44, and 8 Law Times Reports, 91.

For example, the declarations of an illegitimate child as to the pedigree of himself or any other member of his father's family are not admitted in testimony, for the reason that it is not distinctively a " family admission," the bastard not having a family. Craufurd v. Blackburn, 17 Md. 56; Doe d. Bamford v. Barton, 2 Moody and Robinson, 28; Chapman v. Chapman, 2 Conn. 349.

In the case at bar, the court will see the extreme danger of admitting such testimony; the petitioner does not offer the declaration of a mother to establish the legitimacy of her own offspring, but the testimony of a woman alleged by him to be his aunt, to establish the fact that the child was the illegitimate child of another woman, and that the other woman was the sister of the declarant. There is no pretence that these declarations were ever acted on or remembered by Diana J. Johnson until after the contest arose. The risk of perjury in receiving evidence of a witness who undertakes to state what he heard a person say who is long deceased, is freely commented on by courts. An unprincipled witness has no fear of being contradicted and punished; an imaginative witness, or one who has long and morbidly gone over his case in his mind, may have really wrought himself up to believing that he heard a deceased person say what such person never thought of saying. Taylor on Ev. supra ; Crouch v. Hooper, 16 Beavan 186; Carter v. Buchanan, 9 Ga. 541.

2. The declarations of Mary Northrop do not appear from the exceptions, to have been made to a person who had any interest in ascertaining the truth in relation to the matter. It is a requisite of such testimony, that in order to be admissible, it must appear that the person who offers to show that such declaration was made to him, must also show that he had some interest either as a relative, heir, creditor, or in some way in learning from the declarant the truth of the matter. Else courts cannot presume that the declarant would have made solemn and important declarations or that the witness himself would have that interest in the subject which would enable him to remember for many years and to state correctly. This position is fully sustained in recent cases cited in the Vienna Juristische Blaetter; see also Alb. Law Jour. vol. 24, p. 444; see Cuddy v. Brown, 78 Ill. 415; Jones v. Jones, 36 Maryland, 457.

3. It does not appear from the exceptions, that the excluded testimony was in respect to declarations which were so clear, explicit, and given under such circumstances as to be admissible in evidence. The case shows simply that the excluded declarations were " relative to the birth and parentage of said John A. Northrop." But not all statements relative to birth and parentage are to be received in testimony. For example, statements which are not clear or explicit, are not admissible; nor statements given under circumstances to indicate bias or prejudice. The case must clearly bring the excluded testimony within the rule admitting such testimony, or the ruling of the judge at nisi prius cannot of course be overthrown.

VIRGIN J.

This is an appeal from a decree of the judge of probate, wherein he ordered a distribution of an intestate estate and adjudged, against the claim of the appellant, that he was not the natural son of the intestate, but was the legitimate son of the intestate's sister.

In the supreme court of probate to which the appeal was taken, the same question was submitted to a jury who found against the appellant.

At the trial of the issue it appeared inter alia that the appellant was born in Steubenville, Ohio, and was brought up there in the family of the intestate's sister, in which also the intestate resided at the time of the appellant's birth and for several years thereafter. The appellant tendered the " declaration of Mary Northrop (the intestate's sister) relative to the birth and parentage of John A. Northrop," the appellant. What the specific declarations were, the bill of exception fails to disclose. It is sufficiently general to include declarations that the appellant was the lawful son of the declarant, which was claimed by the appellee. The admissibility of such a declaration would not be successfully challenged under any known rule of evidence. For the practice in such cases seems to be that some evidence of the requisite relationship (though the exact degree may not be essential perhaps, Vowles v. Young, 13 Ves. 140) dehors the declarations must be shown before they can be admitted. Fuller v. Randall, 2 Moore & P. 24; Plant v. Taylor, 7 Hurl. & Nor. 237; Gee v. Ward, 7 E. & B. 514. And this evidence is primarily addressed to the presiding justice, who, before admitting the declarations, must be satisfied that a prima facie case of the requisite relationship has been made out. Jenkins v. Davis, 10 Q. B. 313, 322; Hitchins v. Eardley, L. R. 2 P. & D. 248. And the facts shown, the birth, place of birth, the bringing up and the name of the appellant, are ample prima facie evidence of relationship to warrant the admission of the declaration mentioned. 4 Camp. 416; Viall v. Smith, 6 R. I. 417. Still there is some apparent discrepancy in the practice. Blackburn v. Crawford, 3 Wall. 175; Jewell v. Jewell, 1 How. 219, 231; Alexander v. Chamberlain, 1 Thomp. & Cook (N. Y. Sup. Ct.) 600.

But the appellant could not be aggrieved by the exclusion of a declaration which would disprove his claim and his exception for such an exclusion could not therefore be sustained.

Yet, considering the appellant's claim together with the facts and admissions disclosed in the bill of exception, we can have no doubt that the declarations tendered and excluded had a direct bearing upon the issue, and that the question intended to be raised by the parties, is: Whether, in determining who are the rightful distributees of an intestate estate, the declarations of the intestate's sister (since deceased), in whose family he was not only born and brought up, but in which also the intestate herself lived when the appellant was born and for several years thereafter, are admissible for the purpose of showing that he was the natural son of the intestate, who had not then been married.

All of the authorities seem to concur in holding that while her declarations would be competent to show the appellant to be her own illegitimate son, born before her marriage, yet under a rule founded, as Lord MANSFIELD said, " in decency, morality and policy," her declarations would not be allowed to prove her own son illegitimate if born in wedlock. Goodright v. Moss, Cowp. 591; 1 Greenl. Ev. § § 253, 344; Haddock v. B. & M. Railroad, 3 Allen 300; Abington v. Duxbury, 105 Mass. 287. Can her declarations be admitted to show the illegitimacy of her unmarried sister's son born and brought up in her own family? This involves no bastardizing of her own issue.

Formerly the declarations of servants, physicians and intimate friends have been admitted at nisi prius in the English courts. But in Johnson v. Lawson, 2 Bing. 86, the court unanimously rejected the declarations of a deceased housekeeper. BEST, C. J., remarked that the admission of evidence in such cases must be subject to some limits; limiting declarants to relatives connected by blood or marriage afforded a certain and intelligible rule; and if that were passed, an almost endless inquiry as to the degree of intimacy between the family and the declarant might be involved. Since that decision, all modern authorities exclude declarations coming from neighbors, intimate acquaintances, etc. of the family, as being mere hearsay evidence. Vowles v. Young, 13 Ves. 147; Whitelocke v. Baker, 13 Ves. 514; Jackson v. Browner, 18 Johns 37, 39. It has, therefore, become a universally recognized exception to the general...