Rothwell v. Jamison

• Decision Date: 07 February 1899
• Citation: 49 S.W. 503,147 Mo. 601
• Parties: ROTHWELL v. JAMISON et al.
• Court: Missouri Supreme Court

49 S.W. 503

147 Mo. 601

ROTHWELL v. JAMISON et al.

Supreme Court of Missouri, Division No. 2.

February 7, 1899.

EVIDENCE — PRESUMPTIONS — PEDIGREE — WILLS — PROBATE — CONSTRUCTION — ESTATE CONVEYED — APPEAL — REVIEW.

1. A witness having no personal knowledge of the matter cannot testify as to pedigree, where he does not testify to the facts as of general repute in the family, nor from declarations of deceased persons.

2. Where the record of the county court contains a copy of the will, and the evidence taken when the will was exhibited for proof, which shows that it was recorded by the clerk, it will be presumed, after the lapse of over 50 years, that the probate of the will by the clerk was confirmed; especially in view of the fact that the clerk was not authorized to record wills till after probate.

3. Inadmissibility of secondary evidence cannot be first urged on appeal.

4. Under a will providing, "I will and bequeath to my daughter [an only child, nine years old] and her children * * * all my landed estate," and, if she "shall die without issue," the property shall go to others, the daughter takes a fee, and not merely a life estate, remainder to her children.

Appeal from circuit court, Saline county; Richard Field, Judge.

Ejectment by G. F. Rothwell against J. N. Jamison and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Davis & Duggins and G. F. Rothwell, for appellant. McDougal & Sebree, for respondents.

BURGESS, J.

This is an action of ejectment for the possession of 40 acres of land in Saline county, Mo. The petition is in the usual form, and the answer a general denial. The case was tried by the court, a jury being waived. There was judgment for defendants, from which plaintiff, after unsuccessful motion for a new trial, appeals.

Both parties claim title under one Martha Ann Francis Gorham as the common source of title. The facts are stated by counsel for defendants to be as follows: The plaintiff's position is that Martha Ann Francis Gorham died intestate, leaving, as her sole heir, a daughter, Sarah Francis Gorham; that said daughter married Thomas L. Gorham, and died, leaving her husband and a daughter, Sarah Francis; that the latter married W. H. Archer, who, with her by joint deed, conveyed the land to H. T. Fort, the deed being recorded October 4, 1876, and that H. T. Fort's heirs conveyed to plaintiff; that neither plaintiff nor his grantors were entitled to possession of the land until the death of Thomas L. Gorham, in 1891, who, plaintiff contends, had curtesy in the land, by virtue of being the husband of Sarah Francis Gorham. To establish the facts necessary to pass the title to Sarah Francis Archer, the plaintiff relies upon the depositions of Annie E. Fort, Francis M. Hammett, and John T. Fort, whose testimony, defendants contend, is simply hearsay, incompetent, and of no probative force. The defense is adverse possession and the bar of the statute of limitations, and, in support thereof, defendants introduced a deed to the land from Thomas L. Gorham to defendant Jamison, dated April 27, 1870, and recorded in the recorder's office of Saline county, October 20, 1870; and it was admitted by plaintiff that the defendant Jamison had been in possession of the land, claiming title thereto, adversely, ever since the date of said deed. The defendant also proved that Martha Ann Francis Gorham married a man by the name of Hillman, with whom she had a marriage contract authorizing her to dispose of her property by will, and that she did make a will, which was filed with the clerk of the county court of Lafayette county, Mo., upon her death in that county, on the 24th day of June, 1843, and said clerk took the proofs of the witnesses to the will required in such cases. The will and the proofs thereof were recorded in the office of the county clerk of said Lafayette county, on the 12th day of September, 1843; and afterwards, on the 12th day of October, 1843, the transcript from the records of the county court of Lafayette county, Mo., of said will and the proofs thereof, were recorded in the recorder's office of Saline county, Mo. By this will the testatrix devised to her "daughter, Sarah Francis Gorham," who was at the death of the testatrix eight or nine years of age, "and her children," a negro boy and girl, a watch, a bed and bedding, and the land in controversy; the said will further providing as follows: "And if my said daughter, Sarah Francis, shall die without issue, it is my will that all the property which I do hereby devise to her shall be equally divided after the death of the said Sarah Francis, equally between my brothers and sisters, including the children of my deceased sister, America Chamblin, who shall be entitled, with my brothers and sisters, to one equal share of the whole amount."

It is insisted by plaintiff that this will vested in Sarah Francis Gorham an estate in fee simple, and that, having married Thomas L. Gorham, and by him had a daughter, Sarah Francis, who afterwards married Archer, upon the death of Sarah Francis Gorham, Thomas L. Gorham took an estate by the curtesy, and that, as he died within 10 years prior to the institution of the suit, plaintiff's action was not barred by limitation. On the other hand, the defendants maintain that the estate devised to Sarah Francis Gorham was a life estate only, with remainder to her children, and, in event of Sarah Francis' failure of issue, to the brothers and sisters of the testatrix; that, therefore, Thomas L. Gorham had no curtesy, and if the evidence shows that Sarah Francis Gorham died leaving a child, Sarah Francis, she became entitled to the possession of the land, and from the time defendant took possession of the land, in 1870, and certainly from the time of the conveyance from the Archers to Henry T. Fort, in 1876, the statute of limitations began to run; and that the defendant has a good title to the land by adverse possession for more than 10 years, and plaintiff's right of action is barred. Plaintiff asked declarations of law presenting his theory of the case, all of which were refused. It is first insisted by plaintiff that Thomas L. Gorham only had a life estate in the land by curtesy, by reason of his marriage with Sarah F. Gorham, and as defendants derive title from him, and plaintiff from her, by and through her daughter and only heir at law, Sarah Francis Archer and husband, that not until the death of Thomas L. Gorham, in 1891, did the statute of limitations begin to run against him. Defendants contend that the evidence was not sufficient to show that Sarah Francis Archer ever acquired title, by descent or otherwise, from Martha Ann Francis Gorham, who intermarried with one Hillman.

1. If plaintiff's contention as to the facts be borne out by the testimony, there can be no question as to the correctness of the legal proposition contended for by him, for it is well settled in this state that the possession of a life tenant is not, and cannot be, adverse to the remainder-man. Sutton v. Casseleggi, 77 Mo. 397; Dyer v. Wittler, 89 Mo. 81, 14 S. W. 518; Rumsey v. Otis, 133 Mo. 85, 34 S. W. 551.

2. For the purpose of showing that Henry T. Fort acquired the legal title to the land by virtue of the deed to him from Sarah Ann Archer and husband, of date August 30, 1876, plaintiff read in evidence the depositions of Annie E. Fort, Fannie Hammett, and Henry T. Fort, tending to show that Sarah Francis Archer was the daughter of Sarah Francis Gorham, and that Sarah Francis Gorham was the daughter of Martha Ann Francis Hillman, and that she derived title through her mother from Martha Ann Francis Hillman, and that Sarah Francis Gorham was the only heir at law of said Martha Hillman, and Sarah Francis married Thomas L. Gorham, and died shortly after her marriage, leaving Mrs. Archer, her only heir at law, and her husband, Thomas L. Gorham, surviving her. At the time of taking the depositions, Mrs. Hammett was 44 years of age, and Henry T. Fort 38 years of age. According to Mrs. Fort's testimony, Mrs. Archer's mother had then been dead over 40 years, so that Mrs. Archer must have been over 40 years of age at that time. She also stated that she did not know when or where Sarah Francis Gorham, wife of Thomas L. Gorham, died; that she died a good many years ago, when the witness was a very few years old. She testified, further, that Martha Ann Francis Hillman died when witness was a child. With respect to Sarah Francis Gorham, she testified that she did not know in what county she was married, or when or where she died. It is apparent from the testimony of these witnesses that neither one of them knew anything of their personal knowledge about Martha Ann Francis Hillman, — whether or not she left any children; if so, how many, or who they were; or of the marriage or death of Sarah Francis Gorham. These were facts which these witnesses did not pretend to testify to as of general repute in the family, or from the declarations of deceased relations or of other persons; and, not being of their own personal knowledge, this was but hearsay. It seems impossible that Mrs. Fort could testify to facts within her own knowledge which occurred when she was not more than four years old, and John T. Fort to facts that occurred before his birth. These same witnesses testified that Thomas L. Gorham had been dead about two years, but neither one of them appears to have known anything in regard to his death of their own personal knowledge. So that, in that respect this testimony not being dissimilar...