Fryrear v. Lawrence

The Opinion of the Court was delivered by Caton, J. Fryrear alone has taken an appeal, and he presents two questions for our consideration, which will be noticed. The complainants allege, that they are the only heirs at law of James Lawrence, deceased. This the present plaintiff attempts to deny in very positive terms, in his answer, which he supposes is sufficient to put the complainants upon the proof of that fact by two witnesses. This denial is in these words: “From conflicting accounts given by the complainant Garrett L. and the said James Lawrence of their ancestry and relations, respondents John and Betsey unqualifiedly deny that the complainants are the heirs at law of the said James Lawrence.” Although this denial professes to be unqualified in terms, yet it contains within itself the admission that the defendants had no knowledge of the fact about which they have the effrontery to swear so positively. This positive denial, so far from requiring two witnesses to overcome it, only serves to show how reckless Fryreár was of his oath, in swearing to a statement absolutely, which he admits he personally knows nothing about; relying upon such inferences as he drew from the hearsay of others; and it should admonish us to look with suspicion upon whatever else he may choose to- swear to. While a defendant’s answer, which is required to be sworn to, is made evidence in the cause by the complainant, it is only entitled to weight when it is entitled to belief; and if he chooses to swear to that which the Court sees he cannot, or which he admits he does not know, he is entitled to no more credit, and is subject to the same censure and condemnation, as any other reckless witness, who, the Court sees, is trying to impose upon it his belief, when he should only speak of his knowledge. The Court is not a mere machine to weigh everything that is offered without examining its value, any more when the defendant’s oath is put into the scale, than when examining the testimony of any other witness. It is only when the defendant states facts within his knowledge, that his answer has to be overcome by evidence equivalent to the testimony of two witnesses. This denial amounts to no more than the belief of the defendant, founded upon contradictory statements made by one of the complainants, and James Lawrence, and what those statements were, or whether he only used them by hearsay, he does not inform us. The defendant below has not inspired us with sufficient confidence to induce us to allow this opinion of his to neutralize the testimony of one witness. The evidence is abundant throughout the record, showing that James Lawrence was the son of Jehonidab Lawrence, of Maryland, and that the complainants are half-brother and sister of James. By the testimony of Hessey Lawrence, who was the second wife of Jehonidab Lawrence, and the mother of the complainants, we are informed that her late husband had by his former wife five children living at the time of his marriage with the witness. Of these, James was the second. The only daughter died in New Jersey without issue. The eldest son left for the western country twelve or fourteen years ago, in bad health, and had not been heard of since. The two youngest left for New Orleans more than twenty years since, and had not been heard of, and the family had for many years believed all three to be dead. After so long an absence, without being heard from, the law will presume them dead. The witness does not state whether either of those three had been married, but she was requested in the interrogatory in the commission to state all she knew of the family of Jehonidab Lawrence, and she is quite minute in the account she gives, and she concludes her answer with this statement: “This makes up the whole history of the family of Jehonidab Lawrence as this deponent has understood it, for the past thirty years, and as she now believes.” She had previously stated that the complainants were her only children by Jehonidab Lawrence, and that he had been dead for many years. We think this evidence sufficiently shows that the complainants are the only surviving heirs of James Lawrence, except as to his own wife and children, who are shown to be dead by another witness. The right of the complainants to call the defendants to an account, it becomes necessary to inquire whether the evidence justifies the decree against Fryrear. In the Court below, the certified copy of the record of the Morgan County Court from Missouri, exhibited by the cross bill of Fryrear, was evidently rejected as incompetent evidence. This record shows a settlement and final determination of the administration of John Fryrear, administrator of the estate of James Lawrence, deceased, in which the Court"found and adjudged a balance in favor of the administrator and against the estate of $249-62. This record is properly certified under the Act of Congress, and as such must be considered as conclusive as to all matters within the jurisdiction, unless impeached for fraud. We have not the means, even if we had the power, of investigating the propriety of that adjudidication, and it was not the duty of the complainant in the cross bill to come here prepared to show that the decision was right. This adjudication must be considered as settling the rights of the parties so far as Fryrear acted as administrator in Missouri, but it cannot affect his liabilities for the estate which came to his hands in this State. McCaleb swears that he paid him $202 in this State', of money due the estate of Lawrence, and that he also paid $154 to Hatfield, by the direction of Fryrear, for the support of the wife and children of the intestate, after he had deserted them in Ohio, and run off with Mrs. Silvers. We are satisfied from the testimony of Hatfield, that this was a just claim against the estate, and that Fryrear ought not to be charged with it. The balance is then easily struck. He is to be allowed against the estate, the balance found in his favor by the Morgan County Court, $249-62, with interest from the third day of November, 1846, amounting to $282-67, which is to be deducted from $.202, with interest from the third day of November, 1841, amounting to $289-36, leaving a balance in favor of the complainants of $6-69, instead of $159 as was found by the Court below, and the decree must be modified accordingly. Fryrear is entitled to his costs in this Court. Decree modified.