Vantine v. Butler

• Decision Date: 29 February 1912
• Citation: 144 S.W. 807,240 Mo. 521
• Parties: LIZZIE VANTINE v. MARY BUTLER et al., Appellants
• Court: Missouri Supreme Court

144 S.W. 807

240 Mo. 521

LIZZIE VANTINE v. MARY BUTLER et al., Appellants

Supreme Court of Missouri, First Division

February 29, 1912

Appeal from Boone Circuit Court. -- Hon. Nick M. Bradley, Special Judge.

Affirmed.

Whitecotton & Wight for appellants.

(1) The court committed error in admitting the testimony of Mrs Mills as to the identity of Jane Butler by Jane Butler's own declarations with no other proof, and also as to her relation to John Butler for the same reason. The same is true as to the testimony of Robert Farthing. 1 Wharton on Evidence, p. 209; Greenleaf on Evidence (15 Ed.) sec. 207; 18 Am. & Eng. Ency. Law, 257, 263; 22 Am. & Eng. Ency. Law (2 Ed.), 257, 263; Elliott on Evidence, sec. 380, 381; Wigmore on Evidence, sec. 1490; 16 Cyc. 1229; Kennedy's Trial Evidence, p. 22; 2 Jones on Evidence, p. 712. (2) There being no competent proof whatever as to the identity of the plaintiff or that she was an heir of John Butler, the court clearly erred in its finding, judgment and decree. Schmuding v. Ewing, 57 Mo. 79; Klostermon v Koge, 39 Mo.App. 60; Shumate v. Snyder, 140 Mo. 77.

Gillespy & Conley for respondents.

(1) The modern rule and the rule of the best considered cases and text-writers as to the qualification of the declarant is that he must be related to the person by blood or marriage, as to whose pedigree his declarations are offered; that he may be related to the plaintiff, in which case his declaration tends to prove the pedigree of the plaintiff, or to the deceased in which case his declarations tend to prove the pedigree of the deceased. Wigmore on Evidence, sec. 1491; In re Hartman's Estate, 107 Pac. (Cal.), 105; In re Clark's Estate, 110 Pac. (Cal.), 828; Overby v Johnston, 94 S.W. (Tex.), 131; Fowler v. Simpson, 79 Tex. 614; Sitler v. Gehr, 105 Pa. 577; Smith v. Smith, 140 Wis. 599; Mann v. Kavanaugh, 110 Ky. 776. (2) Only slight evidence is necessary to prove the relationship. Fulkerson v. Holmes, 117 U.S. 397; Vowles v. Young, 13 Ves. Jr. 147; Monkton v. Atty-Gen., 12 R. & M. 157; Young v. Shullenberg, 165 N.Y. 385; In re Robb, 37 S.C. 19; Brown v. Lazarus, 5 Tex. Civ. App. 81; Fowler v. Simpson, 79 Tex. 614; Louder v. Schluter, 78 Tex. 105; 22 Am. & Eng. Ency. Law (2. Ed.), 644, and cases cited; Layton v. Kraft, 98 N.Y.S. 72. (3) The conduct, representations and declarations of a person whose identity is in question are competent if made ante litem motam. The declarations of a person under such circumstances as to his name, past history and family connections are not hearsay, but are admissible for the purpose of determining his identity. 3 Wigmore on Evidence, secs. 270, 1791, 1494; 6 Ency. Evidence, 922, and cases cited; Howard v. Russell, 75 Tex. 171; McNeil v. O'Connor, 79 Tex. 227; Nehring v. McMurrain, 94 Tex. 45; 15 Am. & Eng. Ency. Law (2 Ed.), 918; Mullery v. Hamilton, 71 Ga. 720; La Riviere v. La Riviere, 77 Mo. 512; Long v. McDow, 87 Mo. 197; State v. Elwood, 17 R. I. 763. (4) Whether the Jane Butler and Lizzie Butler of Paris were the same persons as the Jane and Lizzie Butler of Boone county was purely a queston of establishing an identity. La Riviere v. La Riviere, 77 Mo. 512. And the declarations of Mrs. Butler were competent as evidence of her identity whether she is living or dead. Nehring v. McMurrain, 94 Tex. 45. (5) The statements made by Mrs. Butler as to her name and the name by which she was known in Paris and the statements of witnesses that the child in Paris was called Lizzie Butler is not hearsay, but primary evidence. It is relied on as a source of knowledge. Willis v. Quimby, 31 N.H. 487; Harris v. Martin, 150 N.C. 367; Gillian v. State, 3 Tex.App. 134; Berniaud v. Bucher, 11 P. 802; 1 Wigmore, sec. 667. (6) "A name is a word by which a person or thing is denoted; the word or words by which an individual person or thing or class of persons or things is designated and distinguished from others." Century Dictionary, "Name;" Roth v. Pallachullo Club, 61 S. E. (S. C.) 78; People v. Freeman, 8 Cow. (N. Y.) 106; Rich v. Mayer, 7 N.Y.S. 70; People v. Leong Quong, 60 Cal. 107. The designation by which one is distinctively known in the community. Laflin v. Steytler, 146 Pa. St. 434. The name is the very means by which persons in conversation are identified. (6) Identity of name is prima facie evidence of identity of persons. La Riviere v. La Riviere, 77 Mo. 514; Long v. McDow, 87 Mo. 202; State v. Moore, 61 Mo. 279; Gitt v. Watson, 18 Mo. 277; Hoyt v. Davis, 21 Mo.App. 239; Meyer v. Bank, 27 Ind.App. 354; People v. Seaman, 239 Ill. 611. (7) The declarations are admissible to prove not only matters of pedigree proper, such as relationship and descent, but also collateral matters tending to prove the same and births, deaths and marriages. 22 Am. & Eng. Ency. Law (2 Ed.), 640; In re Imboden's Estate, 111 Mo.App. 235; Topper v. Perry, 197 Mo. 531; Beckman v. Nacke, 56 Mo. 546.

OPINION

WOODSON, J.

Counsel for appellants make the following brief and clear statement of the issues, which I adopt as a partial statement of the case, viz.:

"This cause is in this court by appeal on the part of the defendants, Mary Butler, Louititia Phelan and Mary Butler, the younger, and Vincent D. Phelan, executors of the last will and testament of John Butler, deceased, defendants in the above entitled cause, from a decree and judgment of the circuit court of Boone county, Missouri, in favor of the plaintiff establishing her right as a pretermitted heir.

"The petition is in ordinary form and alleges that John Butler died testate on October , 1906, as to all his heirs except this plaintiff, and that by his last will and testament he devised to his present widow, Mary Butler, all his real estate to hold during her natural life, and after her death disposed of it in fee to his children and grandchildren as provided in said will, not mentioning the plaintiff in his will in any way; that said John Butler possessed at the time of his death about two thousand acres of land and personal property of about ten thousand dollars; that plaintiff is an heir at law in said estates and entitled to a one-sixth undivided interest therein, both in the realty and the personalty thereof, after the marital rights of the widow have been assigned and set off to her; that said will of said John Butler, deceased, has been duly probated and that by the terms of said will Mary Butler and Vincent D. Phelan are named as executors and have duly qualified as such and taken possession of both the personal and real estate of the said deceased. Wherefore plaintiff prays that issues be framed to determine the facts aforesaid, and that she be adjudged a daughter and a lawful heir of said John Butler, and entitled to a one-sixth interest in his estate, both real and personal, and a tenant in common with the defendants in all of said real estate and that an accounting be had between her and said executors, heirs and devisees, and for all such other and further relief as to the court may seem just in the premises.

"The petition in this case was filed on the 11th day of January, 1908. On June the first, 1908, these defendants filed an answer denying each and every allegation in said petition.

"The record discloses that the question of the heirship of the plaintiff was the only vital issue in controversy between the parties to this proceeding."

The evidence in the case is quite voluminous, some sixty witnesses testified in the case on behalf of the plaintiff, none for defendants, and their testimony covers over two hundred pages of closely printed matter. For that reason, it will be impractical to set out even a summary of the testimony of each. We will, however, state generally what the evidence tended to show, which is as follows:

John Butler, the alleged father of the plaintiff, died testate in Boone county, in the fall of 1906, owning about 1800 acres of land, described in the pleadings, and about $ 15,000 worth of personal property. The will was duly probated, and he devised the lands to his widow, Mary Butler, for life, with the remainder in specific portions to the other defendants.

John Butler and his first wife, Jane Butler, who it is claimed was the mother of the plaintiff, were Irish Catholics, who came from New York to this State about the year 1857. They then had two children, Harry and William.

Butler was a carpenter and lived at or near Sturgeon, in Boone county, until August, 1857, when he moved to a farm near there. On the 16th day of that month, a third child was born unto them, whom they named Annie Butler.

Some time later they moved to another farm nearby, where he resided until his death and where he accumulated his property. He farmed, engaged in the mercantile business and operated a grist and a sawmill.

He and his wife did not live happily together, but there is no suggestion that she was unfaithful to him. He was high tempered, exacting and dictatorial, believing that the wife is the servant of the husband, or at any rate, he acted on the theory that he had the right to inflict corporal punishment upon her whenever he saw fit to do so. In a fit of temper, about the year 1859, he beat her up badly, and drove her from home, she carrying the visible marks of his brutality with her. She was pregnant at the time, and when driven from home, she started afoot to Sturgeon, some miles away, and was found by the wayside in a hazel thicket, about to be confined.

W. T Mathis and others discovered her, and carried her to a new hotel Mathis was building in Sturgeon. He put up a bed for her and placed her upon it, whereat, the first night thereafter, she gave birth to a baby girl, claimed to be the plaintiff in this case. She remained there only three or four days until she could walk, when she took...