Emerson v. White

Bell, J. The first question presented by this case is, whether the evidence of pedigree was competent, the witness having omitted to state from whom he derived his information. Many of the facts stated in the deposition of the witness, Austin, are of a kind of which he could have no personal knowledge or'recollection. He says nothing of the sources of his information, except what he states as to certain family pictures. These are stated to have been from his childhood in the family, and regarded as pictures of some of his ancestors, and he says that when he was a boy, his grandmother pointed out to him these pictures as the likenesses of the relations he mentions. These circumstances serve to authenticate his statements as to these relatives. The only material fact which they show is that Mrs. Wibird was his great, great grandmother. They do not show that she was the wife of Richard Wibird, under whom the plaintiff claims. We can easily imagine that all the facts stated by the witness might be derived from the grandmother, or other members of the family, but nothing of this kind is stated. They might have b.een derived from other sources, and unless derived from other relatives, evidence of this kind is not admissible. If derived from parish registers, wills, monumental inscriptions, family records, or history, it would be incompetent, for though these are deserving of more confidence than mere family tradition, yet as the originals themselves may be produced, any statements founded on them fall into the class of merely secondary evidence. This question was considered in this court, in the case of Waldron v. Tuttle, 4 N. H. Rep. 378 ; and the rule was then laid down by Chief Justice Richardson, as follows : “ The declarations of deceased relatives, who had at the time no — 491 — interest to misrepresent, are evidence to prove a pedigree.” The cases there cited fully sustain the qualifications with which the rule is expressed, and many other cases support the same doctrine. Vowles v. Young, 13 Ves. 140; Doe v. Ridgeway, 4 B. & A. 53; Crease v. Barrett, 16 M. & R. 53; Doe v. Barton, 2 M. & R. 28; Higham v. Ridgeway, 10 East, 120; Davis v. Sawndes, 1 Bing. N, C. 157; Davis v. Selby, 12 L. J. N. S. 506; and 7 Scott N. R. 101; Cosey v. O’ Shaughnessey, 7 Jur. 140; Stein v. Bowman, 13 Pet. 209; Chapman v. Chapman, 2 Conn. Rep. 347; Fosgate v. Herkimer Co., 12 Barb. 352; Jewell’s lessee v. Jewell, 7 Pet. 219; People v. Ins. Co. 25 Wend. 205. Here nothing appears to show that the information upon which the statements of the witness were made, were derived from relatives, nor, if so, whether they were living or dead at the time his evidence was given, or whether they were indifferent as to its effect, or interested to misrepresent. The admissibility of the testimony depended upon its being shown that it was derived from relatives, then disinterested and now deceased, and it avails nothing to the plaintiff that the defendant had an opportunity to be present and to cross examine the witness if he pleased. The burden was not upon him to show that the testimony was not derived from proper sources. This testimony was incompetent, and should have been rejected. It was insisted on the trial, that in the absence of proof on the subject, it should be presumed that four of the children of John and Sarah Penhallow died without heirs, and their rights descended to the remaining children. The court ruled otherwise, we think correctly. We are not aware that , there is any presumption of fact from the mere absence of evidence, that a person did or did not die childless. Ordi•narily the party who asserts that there were or were not descendants of a person deceased, is bound to produce some evidence to show his assertion probable. Slight evidence might be sufficient to turn the scale, but where none is pro — 492 — duced, either direct or circumstantial, the only result to which a jury can arrive is, that the party has failed to prove an important part of his case. Strong negative evidence against the existence of any such presumption as is contended for, is to be found in the fact that no mention of it is found in any of the books of evidence, so far as we have discovered, though the occasions for relying upon it must have been frequent. The rule on this subject is found better stated in 1 Saund. PI. & Ev. 457, than in any of our elementary-books. It is there said, “ To show the heirship of the claimant, he must prove his descent from the person last seized, when he claims as lineal heir, or the descent of himself and the person last seized from some common ancestor, or at least from two brothers or sisters, if he claims collaterally, together with the extinction of all those lines of descent which would claim before him. This is done by proving the marriages, births and deaths necessary to complete his title, and showing the identity of the several parties. Adams, 250. The plaintiff must prove that all the intermediate heirs between himself and the ancestor from whom he claims, are dead without issue. Richards v. Richards, 15 East, 294, n. It is a maxim that he who asserts the death of another, who was once living, must prove his death, whether the affirmative issue be that he be dead or living. Wilson v. Hodges, 2 East, 312. The rule is stated in very similar terms in Adams on Eject. 253; 1 Greenl. Ev. 254; 3 Phill. Ev. 284; 2 Steph. N. P. 1472. These authors all cite and rely on the case of Richards v. Richards, supra, which fully sustains the position. It is supported by the case of Doe d. Banning v. Griffin, 15 East, 293, where it was held that proof by an elderly person, one of the family, that another person of the family went to the West Indies many years before, and according to the repute of the family died there, and that she had never heard of his being married, is prima facie evi — 493 — denee that the party died without lawful issue ; and by the case of Doe d. Oldham v. Walley, 8 B. & C. 22, where it was held that after the lapse of one hundred years, in the absence of evidence to the contrary, the death of a party without issue might be presumed. In Clark v. Trinity Church, 5 W. & S. 266, it was held that where the title of the plaintiff- in ejectment was to accrue on the dying of another person without issue under twenty-one, he is bound to show in ejectment that both these events have happened, and if he give evidence only of his death under twenty-one, it is not sufficient. 4 U. S. Dig. 619, p. 347. In the case of Cranch and Wife v. Eveleth, 15 Mass. Rep. 305, it appeared that the demandants entered, in 1775, upon the decease of the wife’s father, who died seized of the estate, and they continued in possession until 1785. The action being brought in 1813, before the statute of limitations became a bar, the demandants must recover, unless their title was disproved by the tenant. It appeared that the deceased had a son, who has not been heard of since 1777. The tenant offered to prove declarations of members of the family, deceased, that he was living since that time, and that when he died he left two children, who inherit two thirds of the estate in question. The court held the evidence incompetent to maintain the defence for the tenant, for he claimed no title under the absent children. It is evident that the plaintiffs having been themselves actually-seized of the estate, were- entitled to recover it against any intruder, who could not show in himself, or those under whom he claimed, a better title. The evidence offered had no tendency to disprove their seizin, on which they relied. It was not decided that the evidence, if competent upon the issue, would or would not be otherwise admissible. No question was raised as to the source of the witness’ knowledge, and no presumption was made or insisted upon. This — 494 — case, then, yields no supports to the positions of the plaintiff. In McComb v. Wright, 5 Johns. Ch. 263, it appeared upon the report of a master, that two children of a party deceased had not been heard of for more than forty years, and it was held that upon this fact a court or jury might presume they were dead without issue. This case cannot apply to one like the present, where there is an entire absence of evidence on the subject.' It shows that slight evidence may be sufficient. In King v. Fowler, 11 Pick. 302, it was held that where a demandant claimed title under one of the six children of .a former owner of the land, evidence that inquiries had been made in regard to the other five children, and that nothing had been heard of them for seventy years, was held sufficient to justify a jury in finding that they died without issue. In Doe dem. George and Wife v. Jesson 6 East, 80, the ancestor died leaving a son and a daughter, one of the plaintiffs. The son, then about ten years of age, was sent to sea by the parish, and left on a second voyage, and has not been heard of since. Lord Ellenborough says, the presumption of the duration of life with respect to persons of whom no account can be given, ends at the expiration of seven years from the time when they were last known to be living. Therefore, in the absence of all other evidence to 'show that he was living at a later period, there was fair ground for a jury to presume that he was dead at the end of seven years. This case is far from proving that a jury would be warranted in presuming a person to be dead at the end of seven years, in the absence of all proof, where no inquiry had been made whether he had been heard from or not. In Doe dem. Loyd v. Deakin, 4 B. & A. 433, it was held that the faet of a tenant for life not having been heard of for fourteen yeárs by a person residing near the estate, though not a member of his family, is prima facie evidence of the — 495 — death of a tenant for life. It would be, perhaps, a more correct statement of the decision to say that it was evidence competent to be laid before the jury as having a. tendency to prove the death of the tenant. It is a different case from the present, where there is, at most, an absence of all proof or inquiry. In Doe dem. Oldham v. Walley, 8 B. & C. 22, in order to prove that F. Walley was heir to T. Walley, the testator, a settlement was produced, made in 1689, by which it appeared that T. Walley had several brothers, of whom F., the grandfather of F. Walley, was the youngest. No evidence was given to show what had become of the other brothers, or that they died without issue, but wills of some members of the family, made after the date of the marriage settlement, were produced, and they did not mention any brothers, except the grandfather of the testator, and the grandfather of F. Walley. The judge said that, in the absence of any evidence to the contrary, the jury might presume that they died without issue. Tenterden, C. J. It must, at all events, be admitted that the death of the grandfather’s brothers might be presumed, and then, in order to raise the objection, two affirmatives must be presumed, viz: that they did marry and did leave issue. I think that would be very unreasonable, and that the direction of the learned judge was right. This ease, as it is stated, is in conflict with all the other decisions which have been found. The case was properly decided, agreeably to all the other cases, but not upon the ground stated by the reporter. It was not a case to which the doctrine of presumption, in the absence of evidence, could be applied. There was evidence laid before the jury competent for their consideration, tending to show the probability of the decease of the brothers, and from which they might properly infer their deaths. And the question should have been, and probably was, merely as to the sufficiency of that evidence, that is, the omission of their names in wills, — 496 — where they would naturally be found, if living, to warrant the jury in finding their deaths. It was not necessary to resort to any presumption. In Sandys v. Sandys, 1 A. & E. Q, B. 316, note, the right of nomination to a fellowship being in dispute between two parties, claiming under the same grant, the court directed an issue to try “ whether the plaintiff had a better right than the defendant to nominate.” On the trial, it appeared that the defendants had nominated for nearly twenty years, and that vacancies occurred about once in five years. The right of nomination was limited by the grant to heirs male of E., with limitation over in default of such heirs. The eldest son of E. had three sons, and the plaintiff was lineally descended from the third. In 1634, the two elder sons were living, and one hadhad,then living, issue male. No further evidence was given. It was held that on the issue directed, the plaintiff might recover upon his evidence, without showing that the two elder branches were extinct. This case appears to have been decided upon the form of the issue, which was, as stated by one of the judges, “to try which of two claimants had the better right. The plaintiff proves a right, the defendant proves none.” “ A right of presentation ” was said to be “ not like the title to land. No seizin is required. The right claimant may present, after several presentations, by a wrong one.” The case evidently can be no authority in a real action or an action of trespass, since there the party in possession is not to be disturbed, unless it be by one who shows a better right, while here the judgment is rested upon the point that, under the issue, the fact of repeated nominations, made by the defendant, was not material. By Patteson, J., it was said “ the issue was, in substance, to inquire which is more nearly related to the ancestor. The plaintiff shows himself to be a lineal descendant, and he is not bound to negative the existence of any prior claimant.” If the doctrine contended for by the plaintiff had been that held by — 497 — the court, it would be immaterial what was the form of the issue, since the presumption, if there were such, tha: all nearer relatives were dead without issue, in the absence of evidence respecting them, would govern the case, whatever might be the form of the issue. From the English cases, then, referred to, we conclude that the rule of the law is, that a party who alleges the decease of a person is bound to offer such evidence as may satisfy a jury that he is probably dead. If he asserts that a party died childless, he must offer some proof of that fact. And that there is no presumption of death, or marriage, or of the birth of children, or of the reverse. A jury may Infer either of these from slight evidence, but the law makes no presumption about them. The same principle is supported by the eases in New York. In the first of these, Jackson dem. the People v. Etz, 5 Cow. 314, it was held that in ejectment for escheated land, the jury should be satisfied that the tenant, whose lands are claimed as being escheated, died without heirs, and, in such case, proof that a man’s intimate acquaintances, for several years, never heard him speak of his family, father, mother, wife or children, is prima facie evidence that he has no heirs, if the place of his birth be unknown to them, and there appears no clue to better evidence ; but this may be overthrown by very slight proof of heirs. In the People v. Fulton Fire Ins. Co., 25 Wend. 205, it is said by Walworth, Ch., it is only necessary for the people of the state to give general evidence, showing that no persons have been found to claim the premises as heirs at law of the person last seized, leaving it for those who wish to show a title out of the State, either in themselves or a stranger, to prove that such heirs do, in fact, exist; and by Verplank, Senator, proof of the fact of there being no known heirs of the deceased, may well raise a presumption that the inheritable blood has failed, provided that such proof be direct and positive, founded upon inquiry, adver — 498 — tisements, personal family knowledge, or the actual declaration of the person last seized, or _ of those from whom his title descended. He doubts if mere hearsay reputation of the general fact of defect of heirs is competent. In Fosgate v. Herkimer Co., 12 Barb. 352, it was held that, in the action of ejectment, no presumption of title in the demandant can. be indulged. The plaintiffs, claiming three-fourths of the estate as tenants in common, and one-four:h as heirs of their co-tenant, are bound to show the death of that co-tenant, and that he died without issue, and that they succeeded as heirs to his interest. The third question raised by the case is, whether a deed of land, executed by husband and wife, purporting to convey it in her right, is valid to pass the whole, if it appears that the husband was severally seized of a part and the wife of a part. And we think that, in such a case, the deed should be construed to pass the whole estate, both of the husband and wife, upon the familiar principles that deeds are to be construed most favorably, in case of doubt, for the grantee; Canning v. Pinkham, 1 N. H. Rep. 353: Tenny v. Beard, 5 N. H. Rep 58; Cochecho Co. v. Whittier, 10 N. H. Rep. 305; and that deeds are to be construed in such a manner as to pass the estate intended, if it can be done consistently with the rules of law. Touch. 87; 4 Cruise’s Dig. 263; Chamberlin v. Crane, 1 N. H. Rep. 65; Cochecho Co. v. Whittier, 10 N. H. Rep. 305. There are many cases where effect is given to deeds, not according to their terms, but in such way as to give them an effective legal operation. Thus where there are any words in a deed that evidently appear to be repugnant to the other parts of it, and to the "general intention of the parties, they will be rejected as inadmissible. Touch. 87; 2 Black. Com. 379; 4 Cruise’s Dig. 261; Jackson v. Loomis, 18 Johns. 81; Jackson v. Marsh, 6 Cowen 281; Wade v. Howard, 6 Pick. 492; Webster v. Atkinson, 4 N. H. Rep. 121. — 499 — Upon the same principle “ the general words in the premises of a deed or grant may be corrected, restrained and explained by the habendum, or an exception, or by a condition annexed, or by the context or recital of the deed, or by synonymous expressions or clauses.” Com. Dig. Parols. Prest. Touch. 88; 2 Black. Com. 379; Sally v. Forbes, 4 Moore 448; Mills v. Catlin, 22 Verm. 98; Deering v. Longwharf, 25 Maine Rep. 50. This principle, as it applies to the description of real estate, is thus stated by Parsons, C. J., in Worthington v. Hillyer, 4 Mass. Rep. 196, “ if the description is sufficient to ascertain the estate intended to be conveyed, although the estate will not agree to. some of the particulars in the description, yet it shall pass by the description ;” and it is adopted, in similar terms, by this court, in Lyman v. Loomis, 5 N. H. Rep. 408. It is better expressed by Sutherland, J., in Jackson v. Moore, 6 Cowen 717, thus: “ In construing deeds, effect is to be given to every part of the description, if practicable ; but if the thing intended to be granted appears clearly and satisfactorily from any part of the description, and other circumstances of description are mentioned, which are not applicable to that thing, the grant will not be defeated, but those circumstances will be rejected as false or mistaken. Roe v. Vernon, 5 East 41; Doe v. Galloway, 5 B. & A. 43; Lamb v. Reaston, 5 Taun. 207; Bosworth v. Sturtevant, 2 Cush. 392; Wing v. Burgess, 1 Shep. 111, are cases, among many others, sustaining this principle. Many cases, bearing on the question, are collected in the case of Drew v. Drew, 8 Foster’s Rep. 489. In Vose v. Bradstreet, 14 Shep. 156, two grantors convey certain lands not otherwise described than as “land situate in A., conveyed to us by G., by deed dated May 25,1836, recorded book 92, page 51.” The deed found at page 51 of volume 92, was dated in 1835, and was made to one of the grantors only. The land intended was held to be well ascertained by the reference to the record, and the deed was — 500 — not affected by the error as to the date of the deed referred to, nor by the mistake as to the grantee. This case has a strong similarity to the one before us. Here there is no question as to the premises designed to be conveyed by the husband and wife. They are described as the remainder of the |-| parts of the land described, which would include the shares both of the husband and wife. But it is said the deed should be restricted to the land of the wife, because the deed says it is conveyed by husband and wife in right of the wife. But, we think, this mistake in the deed cannot be allowed to defeat the clear and manifest intention of the parties. This qualification must be understood as confined in its application to the lands of the wife. The jury were instructed that the plaintiff had shown title to |-| parts of the demanded premises. The case is briefly stated, but we are unable to perceive how this ruling ' can be supported without recourse to presumption to supply the want of proof. No account is given of the families of Richard Wibird or Hunking Wentworth, which renders it probable that this estate was all inherited by the Penhallow family; and that supposition seems entirely irreconcileable with the account of the shares conveyed to the plaintiff by the deed under which he claims. This inquiry need not be further pursued. Verdict set aside.