Sitler v. Gehr.

declarations of a deceased husband of one of the plaintiffs claiming as heir of her father, that his wife was not married to her father, were admitted.

It would seem, however, that the declarations of a husband in regard to his wife's family, or of a wife in regard to her husband's, rest upon substantially the same principles as those of a relation by blood, and these cases do not throw much light upon the question we are considering.

Doe v. Davies, 59 E. C. L. 314, cited by plaintiff in error, was an action of ejectment, and the vital question in the case was, whether Elizabeth Jenkins was legitimate; if she was, it was admitted the verdict must be for defendant. After the plaintiff had offered evidence to show that E. J. was not legitimate, an attorney produced a certificate of the marriage of Eleanor Diller to John Davies, the father of E. J., and stated that he had received it from E. J. when he was inquiring into the pedigree. He was then asked whether E. J. made any statement regarding her mother's marriage; the question was objected to upon various grounds: "1. That she was not yet conclusively proved to be a member of the family; and 2. That the question whether E. J. was a member of the family was in fact the issue for the jury, and if she was decided to be legitimate, her declarations to prove her legitimacy were superfluous. It was held by Lord DENMAN, in regard to the first objection, that it was the duty of the judge to decide whether it was proved to him, and he decided that it was, and as to the second objection, he answered it by saying: "Neither the admissibility nor the effect of the evidence is altered by the accident that the fact which is for the judge as a condition precedent is the same fact which is for the jury in the issue." Here the declarant was not shown aliunde to be a member of the family; her declaration tended to make her so.

Blackburn v. Crawfords, 3 Wall. 175, also cited by plaintiffs in error, does not sustain their contention. In this case the question was, whether Dr. Crawford had been married to Elizabeth Taylor. The plaintiffs claimed to be his nieces and nephews. To prove this relationship they offered the declaration of one Sarah Evans, who was a sister of Elizabeth Taylor. The evidence was held incompetent because she did not belong to the family. The question was, who were Dr. Crawford's heirs? It was said by Mr. Justice SWAYNE, in delivering the opinion of the court: "If it had been proved by independent testimony that Sarah Evans was related by blood to VOL. LI-27

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any branch of the family of David Crawford, and her declaration had been offered to prove the relationship of another person claiming or claimed to belong also to that family, this case, Monkton v. Attorney-General, 2 Rus. & M. 157, would have been in point. But this declaration of Sarah Evans offered to prove that her sister was connected by marriage with a member of that family, was neither within the principle nor the language of that authority.” Monkton v. Attorney-General, referred to by Justice SWAYNE, will be commented upon later in this opinion.

Attorney-General v. Kohler, 9 H. L. Cas. 653, we regard as authority against the position assumed by the plaintiffs. There the issue was the right of succession to the estate of one George Keylor, an officer of artillery, who died intestate. The claims of the respondents depended upon their establishing the identity of the intestate with one George Frederick Koehler, which they offered to do by the declaration of Johann Jacob Koehler, an uncle of George Frederich Koehler. It having been established that the declarant was the uncle of George Frederick Koehler, his declarations were admitted as to the pedigree of George Frederick Koehler and the events of his early life, tracing him into the artillery service and identifying him with George Keylor, the intestate. It will be noticed in this case that there was no evidence aliunde to show that Johann Jacob Koehler, the declarant, was related to George Keylor, the artilleryman. It was shown however that he belonged to a branch of the family.

In Chapman v. Chapman, 2 Conn. 347, the witness did not name the person whose declaration he had sworn to, nor did it even appear that the declarant was dead. It was properly held that the evidence was inadmissible.

In Davies v. Morgan, 1 Crompt. & Jerv. 587, it was ruled that declarations of deceased corporators were evidence of a custom to exclude foreigners. But it was not shown that the declarant was a member of the corporation. In Doe v. Randall, 2 M. & P. 20, it was held that declarations of a party connected by marriage are ad missible. Casey v. O'Shaunessy, 7 Jur. 1140, was an attempt to prove declarations of a Catholic priest as to the legitimacy of the parties. It was not contended that he was related to any of the parties, and his declarations were only to the effect that the parties had always been reputed to be husband and wife in his parish. In Johnson v. Lawson, 2 Bing. 86, it was held that declarations of

Sitler v. Gehr.

servants and intimate acquaintances are not admissible evidence in questions of pedigree. Crease v. Barrett, 1 C. M. & R. 919, involved a question of custom, in which it was held that "declarations of a deceased lord of the manor as to the extent of his rights over the wastes of a manor are not admissible; aliter if spoken of the extent of the waste only." In Jackson v. Browner, 18 Johns. 37, the witnesses were not connected with the family and had no personal knowledge of the fact of which they spoke, and did not derive their information from persons connected with the family. Waldron v. Tuttle, 4 N. H. 371, merely confines the rule to declarations of deceased persons who had no interest and who were no relatives. Gregory v. Baugh, 4 Rand. 611, is principally a review of all the laws concerning Indian slavery in the State of Virginia, and it was held that in questions of freedom, evidence that there had been a belief in the neighborhood, more than fifty or sixty years before, that the female ancestor of the plaintiff was entitled to her freedom, was not admissible. Whitelocke v. Baker, 13 Ves. 514, was a case of partition, and it was merely ruled that the tradition must be from persons having such a connection with the party to whom it relates that it is natural and likely from their domestic habits and connections that they are speaking the truth, and that they could not be mistaken.

Many of the above authorities were not cited by the plaintiffs in error. Most of them are however referred to in the authorities they rely upon, and I have gone over them, at the risk of being tedious, in order to ascertain just what they decide. It will be seen that those of them which bear upon this question at all do not go beyond the admitted principle that before declarations of deceased persons can be received in questions of pedigree, the declarant must be shown aliunde to be related to some branch of the family as to which the declarations are offered. The whole question is thus summed up by Mr. Wharton in his work on Evidence, page 216: "Declarations as to a family in order to be received must emanate from deceased persons connected with such family by blood or marriage." The same rule is laid down in most of the approved textbooks. See Phillips Ev., § 275; Taylor Ev. 576. The last case to which I shall refer is that of Monkton v. Attorney-General, 2 Rus. & M. 157, where it was said by Lord BROUGHAM: "I entirely agree, that in order to admit hearsay evidence in pedigree, you must by evidence dehors the declarations connect the person making them

Sitler v. Gehr.

with the family. But I cannot go the length of holding that you must prove him to be connected with both the branches of the family, touching which his declaration is tendered. That he is connected with the family is sufficient; and that connection once proved, his declarations are then let in upon questions touching that family; not declarations of details which would not be evidence, but declarations of the nature of pedigree; that is to say, of who was related to whom, by what links the relationship was made out, whether it was a relationship of consanguinity or of affinity only, when the parties died, or whether they are actually dead; every thing in short, which is, strictly speaking, matter of pedigree, may be proved as matter relating to the condition of the family, by the declarations of deceased persons, who, by evidence dehors those declarations, have been previously connected with the family respecting which their declarations are tendered. To say that you cannot receive in evidence the declarations of A., who is proved to be a relation by blood of B., touching the relationship of B. with C., unless you have first connected him also by evidence dehors his declaration with C., is a proposition which has no warrant either upon the principle upon which hearsay is let in, or in the decided cases; and it plainly involves this absurdity, that if in order to connect B. with C., I am first to prove that A. is connected with B., and then to superadd the proof that he is connected with C., I do a thing which is vain and superfluous, for then the declaration is used to prove the very fact which I have already established; inasmuch as it is not more true that things which are equal to the same thing are equal to one another, than that persons related by blood to the same individual are more or less related by blood to each other. It is clear, both upon principle and from total want of any contrary authority in adjudged cases, or in the dicta of judges or text writers, that the argument fails entirely, which would limit the rule respecting evidence of that description to a greater extent than by requiring you to connect with the family, by matters dehors the declaration itself, the party whose declaration you receive."

This case was much relied upon by the defendant in error, and the facts certainly are strikingly similar to those of the case in hand. The decedent, Samuel Troutback, died at Madras in 1785. After reciting in his will that he had no relation or kindred alive to his knowledge or belief, having outlived them all, he gave "unto Mr. John Troutbeck, surgeon, late of the ship Speke, in the English

Sitler v. Gehr.

East India Company's service, the sum of five gold star pagodas as a person nearly of the same name with Troutback, though I solemnly believe and declare that the said John Troutbeck is not in any way related to me, or of the same family or kindred with me, and I disclaim all relationship with him or to him." The testator then proceeded to dispose of his property by charitable bequests which were void. On the appeal the main question was how far the vice-chancellor was right in rejecting from his consideration, as evidence of the relationship between the testator and the claimants, certain documents purporting to be a genealogical narrative and pedigree of the Troutbeck family. These papers were in the handwriting of John Troutbeck (the surgeon mentioned as legatee in the will), and were found among his papers at the time of his death, which occurred in 1792. The result of the narrative and pedigree was that George, the narrator's father, and Samuel, the testator, who died at Madras, were descended from the same grandfather, and were therefore first cousins. There was no difficulty in connecting the claimants and the narrator with George of Riding; and the testator was distinctly shown to be the son of Samuel Troutback of Wapping. The difficulty lay in connecting George with Samuel, and this was fully made out by the narrative or pedigree referred to, which was held to be admissible for that purpose. It was to these facts that Lord BROUGHAM applied the language I have cited from his opinion, and the case shows very satisfactorily that while a declarant must be connected with the family — that is, with some branch of it - yet when that connection is proved, the relationship between different members of the family may be shown by his declarations, or as is stated in the syllabus to that case: "Where in a pedigree case the object is to connect A. with C., after proving that B., a deceased person, was related to A., it is competent to give in evidence declarations by B., in which he claimed relationship with C."

We now return to the question of the competency of the declarations in this case. We have already seen that the declarants were related to the plaintiff's ancestor. They were therefore of his family. The plaintiff's name was Baltzer Gehr, and the question was whether he was related to the Balser Geehr of Berks county. The deposition of the plaintiff, taken after he was one hundred years old, was read upon the trial below, and he testified that he was named after Balser Geehr of Berks county, and that the said