Craufurd v. Blackburn

Bartol, .T., delivered the opinion of this court. Doctor David Craufurd, late of Prince George’s county, died about the 5th day of December 1859, intestate aud unmarried, leaving neither widow nor child, nor any descendants, father, mother, brother or sister. The appellant applied to the orphans court, for letters of administration on his estate, claiming to be the legitimate son of Thomas B. Craufurd, deceased, who was a brother of Dr. David Craufurd. This application was resisted by the appellee, upon the ground, that Thomas B. Craufurd never was lawfully married to the mother of the appellant; and that he, the appellee, being first cousin to the decedent, is next of kin, and entitled to letters of administration on his estate. At the instance of the parties, three issues were framed by the orphans court, and sent to the circuit court of that county for trial; and the cause was afterwards removed to the circuit court for Charles county. The issues were as follows: .1st. Whether your petitioner, George T. Craufurd, is one of the next of kin to the said David Craufurd, on the paid of the father of said David Craufurd? 2nd. Whether there is any male, other than your petitioner, George T. Craufurd, of the next of kin to the said David Craufurd? 3rd. Whether the said Thomas B. Craufurd was ever lawfully married to the said Elizabeth Taylor, before or after the birth of the said George T. Craufurd? The verdict of the jury upon all the issues, was against, the appellant, who reserved two exceptions at the trial, which are presented for our decision on this appeal. A great deal of testimony was produced, which it is unnecessary for us to notice; it was properly submitted to the jury, and passed upon by them. The maiden name of the mother of the appellant, was Elizabeth or Betsy Taylor. To prove that she was lawfully married to Thomas B. Craufurd, the appellant offered, with other evidence, the declarations of Tb/mias B. Craufurd, made on several occasions, to the effect that she was his wife; [54] and also called his mother to the stand, who testified, that she and Thomas B. Craufurd were married by a Catholic Priest, in the city of Washington, in 1835. To rebut this evidence, the appellee offered the declarations of Thomas, B. Craufurd, made in the year 1837 and afterwards, that he was not married to Betsy Taylor; to which the appellant objected, but the circuit court decided the evidence to be admissible, and the propriety of this ruling forms the subject of the first exception. ' By the ordinary rules of evidence, the declarations of persons, not parties to the cause, are excluded on the ground that they are mere hearsay. But it is a well recognized exception to this rule that, in matters of pedigree the declarations of deceased members of the family are admitted. Cope’s Adm’r vs. Pearce, 7 Gill, 247. 4 G. & J., 416. 1 “The term, pedigree, embraces not only descent and relationship, but also the facts of birth, marriage and death, and the time when these events happen.” 7 Gill, 264. This exception to the general rule had its origin in the necessity of the case. “From the necessity of the thing,” said Lord Mansfield, 4 Camp., 415, “the hearsay of the family as to marriage, births, and the like, are admitted;” this language is cited in 7 Gill, 264. But it is objected, that although such declarations to prove pedigree are ordinarily admissible, yet they ought to have been excluded in this case, because the necessity did not exist, there being a party to the alleged marriage, living and competent to testify, and because it was inadmissible upon the principle, that the best evidence of which the nature of the thing is capable must be given. This objection arises from a misapprehension of the rule. Such declarations are not held to be admissible or inadmissible according to the necessity of the particular case; but they are admitted as primary evidence on such subjects by the established rule of law, which, though said to have had its origin in necessity, is universal in its application. Nor do such declarations stand upon the footing of secondary evidence, to be excluded where a witness can be had who speaks upon the subject from his own knowledge. “Hear [55] say evidence is of course inadmissible, if the person making the declaration is alive, and can be called. But the declaration of a deceased mother, as to the time of the birth of her son, are admissible, though the father is living and not called.” Hubback on Ihe Evidence of Succession, 660, (48 Law Lib.) In this case the testimony of the appellant’s mother was properly admitted; its weight was exclusively a question for the jury; but it cannot be said, as ¡natter of law, to have conclusively established the marriage, so as to exclude other contradictory and rebutting evidence, which was legally competent and admissible for the purpose of disproving her statement. In Hubback, 243, (47 Law Lib.,) it is said, “The proof of marriage by the register, or by the testimony of witnesses, is not, in questions of legitimacy, considered the only best evidence, within the rule, which requires such evidence to be produced or its non-production accounted for. Notwithstanding the existence of this evidence, marriage may be proved by reputation and declarations, and presumed from circumstances.” This language will be found to be sustained by the authorities, which warrant us in saying, that the same principle applies where the declarations are adduced, for the purpose of disproving the alleged marriage. It has been contended on the part of the appellant, that this evidence ought not to have been admitted, because it tended to bastardize the issue, and neither the personal testimony of the parents, nor their declarations, are admissible for that purpose. In Goodright vs. Moss, 2 Cowp., 594, Lord Mansfield said, “It is a rule founded in decency, morality and policy, that they (father and mother) shall not be permitted to say, after marriage, that they have had no connexion, and therefore, that the offspring is spurious.” In that case, the question was as to the time of the birth of the child, and the declarations of the deceased parent were admitted to prove that he was bom before marriage; the rule just cited was there held to be inapplicable. Wo consider it alike inapplicable to ihe case before us. [56] The distinction which we deduce from all the authorities, is this: If marriage be proved or admitted, declarations of the parents will not be admitted, to defeat the consequences of marriage, as that the children are bastards; but where the question is marriage vel non, “’the declarations of the parties themselves, if deceased, that they were or were not married, provided they were made ante litem motam, are admissible evidence of the fact declared.” See Hubback, 244, and authorities there cited. 1 Phil. Ev., 251, note 1, (Ed. of 1859.) One other rule has been invoiced, by the appellant, in support of his objection to this evidence. It is said that, in order to make Thomas B. Craufurd’s declarations evidence, it must first be proved, aliunde, that he was a deceased relation of the appellant, which is not shown by proving that he was the putative father only; and in support of this the counsel cited, Hubback, 657, where it is said: “The rule is now well established, that hearsay evidence on matters of pedigree, to be admissible, must proceed from some member of the family to which it relates; and the declarations of an illegitimate member of the family have been held inadmissible.” But the same author, on page 660, says: “It is sufficient that the declarant be connected, by extrinsic evidence, with one branch of the family, touching which the declaration is tendered. To require proof of his connection with both branches, would be to render the declaration itself superfluous, as the very fact in proof of which it is used, would then be established.” See Monkton vs. Att'y General, 2 Russ. & Mylne, 147, (6 Eng. Con. Ch. Rep., 436.) According to the rule laid down by Lord Brougham, in the case last cited, it is sufficient, in order to admit the declarations of Thomas B. Craufurd, to prove his relationship with the decedent, David Craufurd; the question here being whether the appellant is next of kin to David Craufurd. But without relying on this point, upon the authority of the case of Monkton vs. The Attorney General, which was wholly unlike the present, we are of opinion, that the objection of the appellant, now under consideration, will not bear [57] the test of examination. The appellant, after offering evidence that, he was the reputed son of Thomas B. Craufurd, to prove his legitimacy, offers the declarations of Thomas B, Craufurd to establish his marriage with Elizabeth Taylor, the mother of the appellant. The appellee, to rebut this, offers the declarations of Thomas B. Craufurd, to the effect that he never was married to Elizabeth Taylor, and that the appellant, though his son, is not legitimate. Then the objection is made, that these last declarations are inadmissible, unless the foundation is first laid, by proving that the appellant is legitimate, for without that, it is said, the declarant is not legally related to the appellant. Such a proposition involves a contradiction in itself, and needs no argument or authority to refute it. As wo have said before all' the authorities establish, that where the question is marriage vel non, the declarations of the parties to the alleged marriage, if deceased, are admissible either to prove or disprove it. It follows that, in our opinion, the ruling of the circuit court on the first exception ought to be affirmed. And, for the same reasons, we affirm on the second exception, which presents, substantially, the same question. The last will and testament of Thomas B. Craufurd was properly admitted in evidence, as a declaration made by him in a most deliberate and solemn form. (Decided March 1st, 1861.) Judgment affirmed.