Eastman v. Martin

Gilchrist, C. J. The defendant’s title is from Richard Wibird. The descents are as follows: Richard Wibird. Eliza Wibird m. Hunking Wentworth. Sarah Wentworth m. John Penhallow. Their children were Benjamin, Hunking, Thomas W., Sarah, Mary. Benjamin and Hunking conveyed to Pearce. Pearce conveyed to Susan, the wife of Benjamin. Thomas W. left a son Thomas W. The persons entitled would then be Susan, Thomas W. Sarah, Mary. These persons conveyed to Daniel and James Pattee, on the 19th of January, 1836, and this deed is the foundation of the defendant’s title. The question then arises, what is evidence that these grantors of the defendant had the right of Richard Wibird ? [157] This evidence is derived entirely from the testimony of Oliver W. Penhallow. He states the various descents as they are stated above, and the relationship of the parties. But he says that this is K according to a genealogical table of the Wibird and Penhallow families now before me, and from having examined the tombstone of the said Richard Wibird, who was an original grantee,” &c. But, in the first place, the genealogical table would be as good evidence before the jury without as with his evidence. His statement of what are the contents of the table is merely hearsay. It is the table which is the source of information. Therefore there should be some proof of its authenticity, by showing that it has been publicly recognized as such by the family, or that it has been prepared by some member of the family. Without this it is a mere unauthorized statement, and as such proves nothing. A pedigree is admissible, though not hung up or made public, on proof of its having been made by a member of the family. If hung up, it is admissible without proof of its having been made by direction of the family, on the ground that it is a family acknowledgment. Monkton v. Attorney General, 2 Russel & Mylne 161. Goodright v. Morse, 2 Cow. 594. If the pedigree be hung up publicly in. a family mansion, it will be admissible without knowing who was its author. But in the absence of such publicity, it must be shown who was its author. Ib. Neither requisite exists in this case. Secondly. Inscriptions on tombstones are received as evidence of pedigree. 13 Vesey 144; Whitelock v. Baker, 13 Vesey 514; Towles v. Young, 9 Vesey 172; Doe v. Lybourn, 7 T. R. 3. Examined copies of such inscriptions are admissible for the sake of convenience. Where monuments have been decayed by time, or surreptitiously destroyed or removed, evidence of the recollections of witnesses respecting them, and [158] as to the inscription they bore, has been admitted by the House of Lords. 2 Phil. & Ames on Ev. 234. But the copy of the inscription is admissible only for the sake of convenience. Here is no copy. The witness mentions the tombstone as one source of his information; but he does not state what was the inscription, nor can it be ascertained from his deposition how much of his information was derived from the tombstones, and how much from the genealogical table. The inscription on the tombstone should have been copied, in order to be admissible, or at least the witness should be able to state what it was. Perhaps that would not have been sufficient, as the cases which admit the inscriptions have been decided on the production of copies. Thirdly. The witness founds his statement upon the genealogical table and the inscription on the tombstone. But for the reasons before given, his testimony, so far as those are concerned, is merely hearsay. He states that Richard Wibird was his great-great grandfather, and he is, therefore, a consanguineus of the family. But the descents he could not have had any personal knowledge of. And he does not say that it was reputed in the family that such were the descents. Such evidence, coming from one of the family, would be admissible. Johnson v. Lawson, 2 Bing. 86; Ellicott v. Pearl, 10 Peters 412. Laying aside, then, the table and the tombstone, and his statement is not evidence. The evidence of title in Susan Penhallow is imperfect. The witness says that Hunking and Benjamin Penhallow conveyed to Pearce “ according to my impression, having heard them conversing thereon, and Pearce afterwards conveyed the same to Susan Penhallow.” Such evidence is totally incompetent to prove the transfer of real estate. The deed to the Pattees was executed on the part of [159] Mary and Thomas "W. jr., by Benjamin Penhallow as their attorney. To prove his authority as attorney, the witness states that u my impression is, according to the best of my recollection, my said father was appointed attorney for his sister Mary and for Thomas,” and that he has looked among his father’s papers and cannot find the power of attorney. But he never saw such an instrument. He never heard the parties admit there was one. He has not searched the Registry of Deeds, where it probably would be recorded. And the facts would seem to indicate that it never existed. He has only an impression “ according to his best recollection.” And no evidence of any kind is attempted to be given of its contents. The evidence is insufficient to prove the authority of Benjamin to act as attorney. For the reasons above stated, there must be Judgment on the verdict.