Shea v. Hyde

• Decision Date: 09 February 1928
• Citation: Shea v. Hyde, 107 Conn. 287, 140 A. 486 (Conn. 1928)
• Court: Connecticut Supreme Court
• Parties: SHEA v. HYDE ET AL.

140 A. 486

107 Conn. 287

SHEA v. HYDE ET AL.

Supreme Court of Errors of Connecticut.

February 9, 1928

Appeal from Superior Court, Hartford County; Edwin C. Dickenson Judge.

Lawrence A. Howard and Ethel F. Donaghue, both of Hartford, for appellant.

William S. Hyde, of South Manchester, for appellees.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

HINMAN, J.

Jane L Donovan, the decedent, died intestate, in Southington.She was the daughter of James Donovan and Bridget O'Leary Donovan, both of whom predeceased her.The court of probate ascertained the heirs of Jane L. Donovan to be children of brothers and sisters of her mother, Bridget O'Leary Donovan, and therefore first cousins of the intestate.Bridget Donovan, of Boston, Mass., appealed from this decree, alleging that she was an aunt and next of kin of the decedent, and so entitled to inherit the whole estate.Appellant died May 27, 1927, and Jane M. Shea, her niece, was appointed executrix, and entered to prosecute this appeal.

Bridget Donovan, the original appellant, was born in Ireland, her father being Jeremiah Donovan and her mother, Mary Daley Donovan.She had brothers and sisters, all of whom are deceased.One of the brothers was named Jeremiah Donovan, was married in Ireland to Ellen Shea, but left his wife and came to America to live.Appellant claimed that this brother, Jeremiah, changed his name to James after leaving Ireland, and that he was the same person as James Donovan, father of the intestate.

As tending to substantiate this claim, the appellant offered the testimony of her niece, Jane M. Shea, concerning a declaration by one Jeremiah Donovan, of New Haven, now deceased, who, the trial court finds, was a first cousin of appellant, Bridget Donovan.Subject to objection, the witness testified as to a conversation had by her with this Jeremiah Donovan in which he told of his acquaintance with the man known as James Donovan of Southington and his family, and stated that he knew him as a boy in Ireland, and that he was the brother of witness' mother, who, as above stated, was a sister of Bridget Donovan.This testimony was stricken out, on motion of the appellee, the trial court ruling that, while relationship between the declarant and the appellant had been established, it was necessary, in order to render the declaration admissible, to establish relationship between Jeremiah Donovan, the declarant, and the intestate, Jane L. Donovan.The correctness of this ruling is the only question now presented by this appeal.

The unsworn statement of one member of a family as to matters concerning pedigree and relationships within the family is hearsay; but such a declaration, when the legal conditions requisite to its admission are present, is one of the recognized exceptions to the rule excluding hearsay statements.The principal grounds for this rule of exclusion are the absence of the sanction of an oath and the lack of the test of cross-examination.Exceptions thereto are recognized only when conditions obtain which are deemed to render the declaration in question " equivalent in reliability and trustworthiness to the standard of ordinary testimony when subjected to cross-examination."It must appear that the declarant is dead; that he would, if present, have been qualified, as a witness, to testify; that the declaration was made before the controversy in the trial of which it is offered had arisen; and that the declarant had no interest to misrepresent in making the declaration.Turgeon v. Woodward,83 Conn. 537, 541, 78 A. 577.

It seems to be conceded that these conditions are met in the present case.It is also required that the declarant have special knowledge of the subject-matter, and, when it relates to pedigree, relationship of the declarant to the family under inquiry must be established affirmatively by evidence independent of the declaration itself, such relationship presupposing sufficient interest in and accurate information regarding the family history.Chamberlayne on Evidence, § § 2911, 2915;Wigmore on Evidence, § 1486;Jones on Evidence, § 1131." The declaration must be from persons having such a connection with the party to whom it relates, that it is natural and likely * * * they are speaking the truth, and cannot be mistaken.* * * The opinions of deceased neighbors or acquaintances of the family are not evidence in a question of pedigree; for they cannot be supposed to have that certain knowledge that can be relied on.* * * From this it appears that the deceased relative, whose declarations are given in evidence, is to be considered as standing on the foot of a witness, and the hearsay declarations are admitted in lieu of his testimony.It is, therefore, essential that the relative whose declarations are given in evidence should be named, so that the court may be enabled to know whether his relationship or connection with the family, whose pedigree is in question, was such that he may be supposed to know the truth of the declarations."Chapman v. Chapman,2 Conn. 347, 349(7 Am.Dec. 277).

In the instant casethe appellee concedes that the declaration of Jeremiah Donovan as to his own family history or that of Bridget Donovan(the appellant), a relative, was clearly admissible, but contends that:

" Before his declaration as to James Donovan could be admissible, it became necessary for the appellant to first prove his relationship to James, and this cannot be proved by the declaration of Jeremiah

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