In re Robb's Estate

The opinion of the court was delivered by Mb. Chief Justice MoIveb. Some time in September, 1885, one William Eobb, late of the city of Charleston, departed this life, having first duly made and executed his last will and testament. By his will he disposes of his property as — 31 — follows: To his friend and former copartner, John Thomson, he gives all of his undivided interest in the real estate held by them as tenants in common, together with all his interest in the partnership property, for and during his natural life, and at his death he gives the remainder in such property, together with all other property of which he may die seized and possessed, “unto such person or persons, and in such shares or proportions, as they shall be entitled to the same under the laws of the State aforesaid relating to the distribution of the estates of intestates.” The escheator named in the title of this case, under the allegation that the said William Robb had died leaving no person who could lawfully claim his property either by descent or purchase, instituted proceedings for the escheat of said property, and in due time the appellant, Jean Robb Muir, traversed the inquisition of escheat, and this traverse came on to be tried before his honor, Judge Wallace, and a jury. After hearing such of the evidence introduced by the traverser, the appellant herein, as was held to be competent, a motion for a non-suit was made by.the counsel for the escheator, which was granted, upon the ground that there was no evidence tending to show any lawful relationship between the said William Robb and the said Jean Robb Muir. From the judgment of non-suit the traverser appealed upon numerous grounds set out in the record, which we do not deem it necessary to state here, though they may be incorporated in the report of this case. These grounds raise four general questions: 1st. Whether the Circuit Judge erred in rejecting certain testimony, which will be more specifically mentioned, as incompetent. 2d. Whether there was any testimony tending to show that the said Jean Robb Muir was lawfully related to the said William Robb. 3d. If not, whether there was any testimony tending to show that said Jean Robb Muir was the person referred to by the general terms used in the will of William Robb. 4th. Whether in a proceeding like this a judgment of non-suit could, in any event, be properly rendered. For a better understanding of these questions, it will be necessary to make a general statement of the facts which appellant — 32 — undertook to prove, and of the kind of testimony by which it was sought to make such proof. It seems that there were three persons spoken of in these proceedings, all bearing the same name of William Bobb, and for the purpose of conveniently distinguishing them, they have been and will be designated by the addition to their names of the numbers 1, 2, and 3. The claim is that William Bobb No. 1 was the paternal grandfather, and William Bobb No. 2 was the father of William Bobb No. 3, the testator who, it is claimed, was the brother of the appellant, Jean Bobb Muir. It is also claimed that William Bobb No. 3 and the appellant were the only children of William Bobb No. 2 and Jean McFarlane, who was the daughter of James McFarlane and his wife, Mary ; that William Bobb No. 3 was born in the year 1819, or 1820, in the porter’s lodge of Lord Abercrombie, in Scotland, while his alleged parents were living there with the said James McFarlane and his wife, he being then the keeper of the lodge; that upon the death of James McFarlane, Lord Abercrombie, desiring to appoint another keeper of his porter’s lodge, allowed the widow of said James, with her daughter Jean, to occupy a small house near by, where, soon afterwards, the appellant was born, in the year 1822; that when this removal took place, William Bobb No. 2 did not go with them, because the house was too small, but took William Bobb No. 3 with him to his father’s house, that of William Bobb No. 1; that appellant was fourteen years of age when William Bobb No. 1, at whose house she had visited, died; that she was married to her present husband, William S. Muir, in 1844, in Scotland, and soon after came to this country, finally settling in Utah, where she now resides. When the appellant undertook to testify as to declarations made to her by her alleged parents in regard to the genealogy of the family to which she claimed to belong, her testimony was objected to, and the objection was sustained. The ground upon which this ruling was based seems to be that, before such testimony can be received, it must first be shown that the person whose declarations are sought to be proved was a member of the family to which such declarations relate; and here the judge thought that there was no such preliminary proof. His idea — 33 — seems to have been that the whole matter turned upon the question whether there was any sufficient evidence of the marriage of William Robb No. 2 and Jean McFarlane, and there being, in his judgment, no evidence of that fact, he excluded all declarations of William Robb No. 2 and Jean McFarlane. 1 The rule, as we understand it, is that while, in questions of pedigree, hearsay evidence may be admitted, yet it is subject to the following qualifications: the declarations sought to be proved must be those of a person related either by blood or marriage to the family to which the declarations refer, and that such relationship must be established dehors the declarations proposed to be proved; the declarant must be dead and the declarations must have been made ante litem motam. 1 Greenl. Evid., § 103, and cases there cited; 18 Am. & Eng. Enc. Law, 258-263, and the authorities there cited. These authorities also show that it is for the judge to decide whether the declarants were members of the family, so as to render their declarations admissible, while it is for the jury to determine the effect of such declarations upon the issue which they are called upon to try. The reason for this exception to the general rule with respect to hearsay evidence is that members of a family are supposed to have an interest in knowing and preserving the memory of their family relations, while strangers having no such interest, their declarations cannot be received. It is very manifest from the very nature of things that, after a great lapse of time, the same strictness of proof should not be required either as to the admissibility or the effect of the declarations, as would be necessary to establish an ordinary contract. Vowles v. Young, 13 Ves., 143. “In cases of pedigree, therefore, recourse is had to a secondary sort of evidence, the best the nature of the subject will admit, establishing the descent from the only sources that can be had.” In the case of Johnson v. Johnson, 1 DeSaus., 595, recognized and affirmed in Dinkins v. Samuel, 10 Rich., 66, the court said: “That the evidence of legitimacy was very slight, but that the court would presume a marriage after the lapse of thirty years, especially as all the parties were dead; and if a contrary presumption should prevail, it would have the effect of bastardizing a person after his — 34 — death, which would be contrary to every principle of law, justice, and equity.” And the court added, that it “would act the more readily on the presumption, as there was no legal heir of William Johnson, sr., to contest the legitimacy of William Johnson, jr.” See, also, the case of Vaughn v. Rhodes, 2 McCord, 227, which was an action brought by a mother against the defendant for baking away her daughter, about twelve years of age, in which one of the grounds of defense was that the child was an illegitimate. Several witnesses were allowed to testify that they understood that she was illegitimate, though they did not know the fact, because they were not acquainted with her mother. Another witness testified that, in early life, he had heard that the plaintiff was married to Vaughn, whose name she had taken and given to her daughter, but he never knew Vaughn, nor did he know the woman at that time. Although it appeared in evidence that the mother was a woman of ill fame, and had gone off and been absent from the State about a year, leaving her daughter in the family of the sou of a man with whom the mother cohabited, and with whom she had gone away, yet the court held that the presumption wms in favor of the legitimacy of the child. Now, in this case, it appears that the appellant was permitted to testify, with the qualification that when she used the words grandfather, grandmother, father, mother, uncle, or aunt, they were to be regarded merely as a designation of the persons to whom she referred, and notas any evidence that they bore such a relation to her as those words would imply, to the following-facts substantially, viz: that (her grandfather) William Bobb No. 1 lived at Cause-Head, Scotland; that he is dead; that she frequently visited him at that place before his death, when he would treat her as his grandchild; that she called him “grandfather,” and he spoke to and referred to her as his grandchild; that (her father) William Bobb No. 2, as well as (her brother) William Bobb No. 3, then lived with (her grandfather) William Bobb No. 1; that (her brother) William Bobb No. 3 was treated and spoken of by (her grandfather) William Bobb No. 1 as his grandson, and that he addressed Bobb No. 1 as his grandfather; that (her grandfather) Bobb No. 1 would ask about (her mother) — 35 — Jean McFarlane, speaking kindly of her as his daughter-in-law; that Eobb No. 1 was a religious man, an elder in Blair Logie kirk; that when Eobb No. 1 died, she with (her brother) William Eobb No. 3 attended his funeral as his grandchildren, she being then fourteen years of age; that (her father) William Eobb No. 2 was a gun-smith, and his shop adjoined (her grandfather’s) William Eobb No. l’s house; that she went to school in Scotland, and (her father) William Eobb No. 2 paid for her schooling; that when she used to pass (her father’s) William Eobb No. 2’s shop, he would call her in, have her to write and read, to see how she was getting on at school; that she then wrote her name “Jean Eobb;” that (her brother) William Eobb No. 3 was sometimes present at these visits to the shop, and that they there addressed each other as brother and sister; that (her father) William Eobb No. 2 would address them as son and daughter, and that she would address him as father; that he treated them both kindly as his children; that on these visits “he asked how my mother was;” that he visited (her mother) Jean McFarlane, when he treated her as his vrife, and they when thus together treated her and (her brother) William Eobb No. 3 kindly as their children; that the William Eobb whose estate is now in controversy is the same person of whom she has been speaking as having known and associated with him in Scotland as her brother; that William Eobb No. 3 was “brought up” and educated by William Eobb No. 2, with whom he lived;, that William Eobb No. 3 left Scotland and came to America in the year 1847, with (his father) Wiliam Eobb No. 2 and (aunt) Mary Eobb; that said Mary Eobb is dead ; .that William Eobb No. 3 went by the name of William Eobb when she knew him in Scotland, and that she went by the name of Jean Eobb before her marriage with William S. Muir, which took place in 1844, and that soon after her marriage she came to this country, and finally settled in Utah, where she still resides; that while there she received a letter from (her brother) William Eobb No. 3, in which, after inquiring about her health, he proposed to take her children and educate them in Charleston, South Carolina, from which place the letter purported to have been written. This offer to take the children, the witness said in her cross36 examination, was declined because her husband was able to school them himself. She also testified on her cross-examination that William Robb No. 1 owned the house in which he lived, and that upon his death it went to (her father) William Robb No. 2, who sold it before he went to America. The witness also testified that while she lived in Scotland she was acquainted with several persons, viz: Thomas McFarlane and James McFarlane, whom she recognized as her uncles, and Mary McFarlane, whom she recognized as her aunt, and that they recognized and treated her as their niece. Mrs. Mary Gentleman testified that she was the daughter of Mary McFarlane, wife of Robert Gentleman, who was the sister of Jean McFarlane; that she knew William Robb No. 3, who was the son of her aunt, Jean McFarlane; that he was born about 1819, while his mother was living at the porter’s lodge, with her parents, James McFarlane and wife, Mary Finlayson (the grandparents of witness); that William Robb No. 2 was always said to be the father of William Robb No. 3; that she never heard it mentioned in the family whether Jean McFarlane and William Robb No. 2 were married or not, and never heard that William Robb No. 3 and Jean Robb were illegitimate children; that William Robb No. 3 lived with witness about four years, and was in the habit of going to see his father and mother and staying from Saturday till Sunday evening; that William Robb No. 3 always recognized appellant as his sister, spent the night with her and her husband before they left Scotland for America, at the house of witness, and made his sister a small present; that subsequently William Robb No. 3 went with his father and Aunt Mary to America; that when he revisited Scotland about twelve years ago, he conversed with witness about his sister, speaking kindly of her, and saying that she was in Utah. The next witness offered was J. H. Happoldt, who testified that he was very intimate with William Robb No. 3, and was in the habit of visiting him very frequently; and that upon the occasion of one of his visits, on a very hot night, he found said Robb at work, and chiding him for working so hard on such a hot night, saying that he had enough already; to which — 37 — he replied in these words: “Well, I have a sister and nieces in IJtah, who will inherit my money.” After this testimony was introduced, counsel for the escheator moved to strike it out, and the motion was granted, upon the ground that there being-no misdescription in the will as to the persons who were to take, the testimony was inadmissible. Mrs. Janet Drysdale, or Gentleman, was then examined, who testified that she was the widow of John Gentleman, a brother of Mrs. Mary Gentleman, previously examined; that she knew William Robb No. 3, but did not know his sister, Jean Robb, as she had left for America before she became acquainted with William Robb No. 3; that his mother’s name was Jean McFarlane, a sister of her husband’s mother; that William Robb No. 3 was introduced to her by her husband as his cousin; that upon his visit to Scotland, some sixteen years ago, he stayed with her about three weeks; that her husband corresponded with William Robb No. 3 regularly up to the time of his death ; that he spoke very kindly of his sister in his letters; and that she never heard William Robb No. 3 and his sister, Jean Robb, spoken of in her husband’s family as illegitimate children. After this testimony was in, counsel for appellant moved to admit the testimony of Mrs. Jean Robb Muir, as to the declarations of her mother and other of her alleged relatives, previously ruled out, because there was no proof of any family; but the motion was refused, because the Circuit Judge still thought there was no proof of any family. 2 It does seem to us that in view of all this testimony and of the principles of law laid down in the authorities above cited, that there was evidence tending to show that there was a family in Scotland of whicli Jean McFarlane was a member, and with which both the testator and the appellant were connected. This testimony certainly does tend to show that both William Robb No. 3 and the appellant, Jean Robb Muir, were the children of William Robb No. 2 and Jean McFarlane; that they were recognized and treated as such both by the Robbs and the MeFarlanes; that they were called their children, which must be presumed to mean lawful children, as there is nothing to show that they were ever called or treated — 38 — as illegitimate children; we think, therefore, that the Circuit Judge erred in excluding the declarations of Jean McFarlane and other members of such family. It is true, as we have said above, that it is for the judge to determine in the first instance the question whether the persons whose declarations are proposed to be offered in evidence were members of the family; but it seems to us that in this case the error lay in requiring stricter proof of that fact than the law requires. After such a lapse of time, nearly seventy years, it caunot be expected that such satisfactory proof can be obtained, as would be required in an ordinary case; especially where, as in this case, the events under investigation occurred in a foreign country, among people who appear to have occupied a lowly station. To insist upon strict proof of the marriage of William Robb No. 2 with Jean McFarlane, as seemed to be the controlling idea in the mind of the Circuit Judge, is more than the law requires. In such a case as this, much must necessarily be left to presumptions drawn from the circumstances testified to, which, of course, are liable to be rebutted by other facts and circumstances appearing in the testimony. Even if there was a want of any testimony to prove the marriage of William Robb No. 2 and Jean McFarlane, in any of the modes recognized by the law, yet that is not, necessarily, conclusive of the question of legitimacy, which is the only issue here; for, as was held in Johnson v. Johnson, 1 DeSaus., 595, supra, that will be presumed upon slight proof, after the lapse of thirty years, especially where all the parties are dead. And in Vaughn v. Rhodes, 2 McCord, 227, supra, the legitimacy of the child was presumed, although there was not only uo legal proof of the marriage of the parents, but there was evidence that the child was understood to be illegitimate, and the mother was shown to be a person of ill fame. 3 Indeed, we think, after such a lapse of time as has occurred in this case, where the parties are dead, and where the evidence shows that a person is the child of a certain man and woman, and has been recognized and treated as such, not only by the father and mother, but also by the different members of the families of both father and mother, legitimacy — 39 — may be presumed, even though there is no evidence of the marriage of the father and mother; but, of course, such presumption may be rebutted by other facts appearing in the testimony. In support of these views, we refer to Strode v. McGowan, 2 Bush (Ky.), 621; 1 Bish. Mar. & Div., §§ 1160-1164, edit, of 1891; Monkton v. Attorney General, 2 Russ. & Myl., 157; Sitler v. Gehr, 105 Penn. St., 577; reported also in 51 Am. Rep., 207. 4 As to the rejection of the testimony of Happoldt, we think the court below erred upon two grounds: 1st. Because it tended to show an admission by the testator that the appellant was his sister—meaning, of cou rse, his lawful, sister—and as such was competent. Wise v. Wynn, 59 Miss., 588; reported also in 42 Am. Rep., 381, where it was held that the declarations of a deceased person that he had a brother living at a certain place, are competent to establish the right of the brother’s children to inherit from the declarant. To same effect see Moffit v. Witherspoon, 10 Ired., 185; see, also, Shields v. Boucher, 1 DeG. & Sm., 40. 2d. Because, taking the view that both testator and appellant were illegitimate, and, therefore, incapable of inheriting the one from the other, the testimony rejected tended to show who were the persons referred to in his will, in general terms, that the testator really meant by the descriptive terms used. As was said in Wish v. Kershaw, Bail. Eq., 353, note: “If a testator devises his estate to a person, or class of persons, by name or description, and it turns out that there is no one to whom the description properly applies, parol evidence may be admissible to show to whom the testator intended it to be applied.” Now, in this case the testator has designated the objects of his bounty—not by name, but by terms descriptive of a class of persons; and as there is (under the supposition of illegitimacy) no person who could bring himself within the class designated, and never can be, inasmuch as the testator died leaving no issue, parol evidence is competent to show whom he intended by the terms which he used. See, also, Wilkinson v. Adam, 1 Ves. & B., 422; Powers v. McEachern, 7 S. C., 290. We think, therefore, that there was error in rejecting the testimony hereinbefore referred to, as well as in granting the nón-suit. — 40 — Under these views, the remaining inquiry, whether a non-suit can properly be granted in a proceeding of this kind, becomes of no practical importance in this case. But as it is an important question of practice, we, perhaps, ought to express our views. While it is true that the authorities elsewhere, cited by counsel for respondent, do seem to show that a non-suit may be granted in a proceeding of this kind, yet, as we have no authority in this State upon the subject, so far as we are informed, we are not inclined to accept that view. It seems to us that it would be subversive of one of the main objects of the proceedings-in escheat, which is to have a final determination of the issue presented by the traverse of the inquisition; and this a non-suit would not effect. We think, therefore, that in all such cases there should be a verdict of a jury finally determining the issues of fact raised by the traverse. The judgment of this court is that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for a new trial.