Scheidegger v. Terrell

SIMPSON, J. — This is an action of ejectment (under the statute) for the recovery of certain real estate, the plaintiffs claiming as the heirs of one Madeline Kronenberg, wife of Edward Kronenberg. The point of contention is whether or not said Madeline Kronenberg is identified as the same person as Madeline Bitter, who left Switzerland years ago and came to the United States. The court below excluded certain parts of certain depositions, a nonsuit Avas taken, and this appeal thereon. The contention of the appellant is that those parts of the depositions AAdiich Avere suppressed should have been admitted, under the rules of law, Avhich permit hearsay testimony to a certain extent in matters of pedigree. The principles of law are few and well understood on this question, to-wit: That, in matters of pedigree, the general repute in the family may be testified to by a member of the family; also that declarations by the deceased himself, and declarations by persons who are shoAvn by other evidence to be members of the family, may be proven, provided such members are dead. Such declarations by members of the family must be made, either upon Avhat said members know to be the general repute in the family, or on what said' members have heard other members of the family say. A declaration which merely expresses information collected from persons not qualified to be declarants, or from other sources than family tradition, or the' statements of other members .of the family who knew the facts, is not admissible. It is also true that, where a delcaration of a member of the family is sought to be proved, the declaration itself should be proved, and not the declaration of the Avitness from it. — 1 Elliott on Evidence, § § 336, 371; Stein v. Bowman, 13 Pet. (U S.) 209, 10 L. Ed. 129; Chapman v. Chapman, 2 Conn. 347, 7 Am. Dec. 277; Jackson v. Browner, 18 Johns (N. Y. 37; Wise v. Wynn, 59 Miss. 588, 42 Am. Rep. 381; Young v. State, (Or.) 59 Pac. 812, 47 L. R. A. 548; 16 Cyc. 1130, 1228, 1229; [342] 22 Ency. Law, pp. 641, 642, 650; In re Hurlburt’s Estate, 68 Vt. 366, 35 Atl. 77, 35 L. R. A. 794, 800; Rogers v. De Bardeleben Goal & Iron Co., 97 Ala. 154, 156, 12 South. 81. The testimony of Frederick Scheidegger shows that he had no personal knowledge at all of Magdalena Ritter, or of Madeline Kronenberg. While he states that his mother used to “speak of her to us children,” yet, when he came to relate what his mother actually said, it was simply that “her sister was in the United States,” and that she “used to receive letters from her.” There is no fact in his testimony, no repute in the family, and no declaration of any member of the family, which tends to show that Magdalena Ritter and Madeline Kronenberg were one and the same person. He states distinctly that his knowledge of the fact that Madeline Kronenberg’s maiden name was Ritter and that she married Kronenberg was from the documents from Mobile in the English language, which has been translated to him. Hence these parts of his testimony noted as “stricken,” being evidently derived from these sources, were properly suppressed. The point of the third ground of objection to this testimony is not that the person making the declarations, to-wit, the mother of the witness, is .not shown to be a member of the family of Madeline Kronenberg, for, of course, that is the thing to be proved by the statements, and it would be only necessary to show that the declarant was a member of the family to which it is sougtht to attach Madeline Kronenberg' by her statements; but the point is that the “hearsay statements do not consist of declarations” of such a person having knowledge of the facts. If the witness had testified that he had often heard his mother say that she had a sister living in Mobile, Ala., whose name was Madeline Kronenberg, and that her husband was named Edward Kronenberg, and that they called her Madeline, in English, in place of Magdalena, as she was originally called, then that would have been properly admitted as a statement of a member of the family; but, as before shown, the •witness does not testify to any such statements, but only to his own inferences that Madeline Kronenberg was [343] “born Bitter,” etc., because Ms mother said that she had a sister in the United States and he had seen certain translations of English documents from Mobile. Under the same principles, those parts of the testimony of Budolph Sheidegger hereinbefore noted as “suppressed” were properly excluded by the court, as were also those portions of the deposition of Johann Baertschi noted herein as “suppressed.” These are all the points noted in the- brief of appellant. The judgment of the court is affirmed. Tyson, C. J., and Haralson and Denson, JJ., concur.