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Y. 247, 51 L.R.A. 951, 59 N. E. 5; Erie, motam, was competent within the well-recR. Co. v. Steward, 170 N. Y. 172, 63 N. E. ognized exception to the rule relating to 118; Yeoman v. McClenahan, 190 N. Y. 123, hearsay evidence. 82 N. E. 1086; Dixon v. James, 181 N. Y. Whitelocke v. Baker, 13 Ves. Jr. 514, 9 129, 73 N. E. 673; Riker v. Gwynne, 201 Revised Rep. 216; People v. Fulton F. Ins. N. Y. 143, 94 N. E. 632; Elliott v. Guard. Co. 25 Wend. 205; Fulkerson v. Holmes, ian Trust Co. 204 N. Y. 214, 97 N. E. 521; | 117 U. S. 389, 29 L. ed. 915, 6 Sup. Ct. Rep. Gannon v. McGuire, 160 N. Y. 476, 73 Am. / 780; Eisenlord v. Clum, 126 N. Y. 552, 12 St. Rep. 694, 55 N. E. 7; National Wall L.R.A. 836, 27 N. E. 1024; Re Hurlburt, 68 Paper Co. v. Sire, 163 N. Y. 122, 57 N. E. Vt. 366, 35 L.R.A. 794, 35 Atl. 77; Rollins 293; Van Beuren v. Wotherspoon, 164 N. v. Atlantic City R. Co. 73 N. J. L. 64, 62 Y. 368, 57 N. E. 633; Hinckel v. Stevens, Atl. 929; Layton v. Kraft, 111 Apr. Div. 165 N. Y. 171, 58 N. E. 879; Ball v. Broad-! 842, 98 N. Y. Supp. 72; Young v. Shulenway Bazaar, 194 N. Y. 429, 87 N. E. 674. berg, 105 N. Y, 385, 80 Am. St. Rep. 730,

The testimony of the appellant and of 59 N. E. 135; 2 Wigmore, Ev. § 1491; 1 his Cleveland relatives as to his pedigree, Greenl. Ev. 16th ed. § 114c; Taylor, Ev. derived as it was from the declarations of 8th ed. $ 640; Monkton v. Atty. Gen. 2 his mother and half-sister made anie litem 'Russ. & M. 147; Re llartman, 157 Cal. 206, 3 Wall. 175, 18 L. ed. 186, Mr. Justice The declarations of the sister of the Swayne quoted from the opinion of Lord father of an illegitmate intestate are adBrougham in Monkton v. Atty. Gen. 2 Russ. missible to prove who his mother was, & M. 156. But in the same case Lord | although the sister's relationship to intesBrougham said: 'I cannot go to the length tate was de facto, and not de jure, especi. of holding that you must prove him to be ally when this relationship is coupled with connected with both the branches of the the fact that the intestate was in fact a family touching which his declaration is member of the declarant's family from his tendered.' (The original report is not acces- birth to early manhood. Ibid. sible to the writer this time, but the In Re Kennedy, 82 Misc. 214, 143 N. Y. quotation made is copied in several text. Supp. 404, under the rule that hearsay evibooks and opinions.) It is illogical to hold dence is permissible to establish relationthat pedigree must be proved by starting at ship if it is the declaration of a deceased the top and coming downward, instead of by member of a family, or the husband or wife starting at the bottom and going upward. of a member of the family, the treatment of In Greene v. Almand, supra, several of the claimant by intestate and those conceded to authorities cited in support of the decision, be of his family was admitted as some eviwhen thoroughly considered, do not, in the dence on the question of pedigree. opinion of the writer hereof, sustain it.

In Jarchow v. Grosse, 257 Ill. 36, 100 N. It may be remarked that in the second edi. E. 290, Ann. Cas. 1914A, 820, the court tion of one of the works cited (18 Am. & makes a distinction between cases where Eng. Enc. Law, 260), the rule is stated sub

attempt is made to set up some right stantially as here contended, as to two sup- or claim to be derived through the declarant, posed branches of a family. 22 Am. & Eng. and by the declarant's own statement to Enc. Law, 2d ed. 643.” The language establish the right to share in the property quoted is followed by a quotation from 2 of a family or individual to which he or Wigmore on Evidence, 1491.

she claimed to be related, and where it is In Re McClellan, 20 S. D. 498, 107 N. sought to reach the estate of the declarant W. 681, a letter written by a brother, since himself, and holds that where the claimant deceased, of petitioners for letters of ad- is seeking to reach the estate of the declarministration on an intestate's estate, who ant, such declarations, from the very necesclaimed as children and grandchildren of sity of the case, are admissible without the intestate, to the effect that he saw and extrinsic proof of the relationship thus deconversed with his father in Dakota, was

clared. held admissible, under the rule in relation to pedigree and family history, as tending

In Re Lyle, 93 Neb. 768, 141 N. W. 1127, to establish the fact that the father and where the evidence showed beyond any quesgrandfather of the claimants was in Dakota tion that the petitioners were the children at the time referred to, and thus tending and grandchildren of declarant, who lived to establish his identity with the deceased, in Scotland, and that the declarant was also who was a resident of Dakota.

the cousin of another person who was The blood relation usually thought of in relative of the petitioners and who left connection with the rule is that between the Scotland, so that the only question in estab

to declarant and the person whose pedigree is lishing kinship to decedent in question; yet such relationship is not whether decedent was the same person who always essential, but it is sufficient if the left Scotland, concerning whom the declardeclarant is related to the family with ations were made, it was not necessary which the person in question seeks to that the identity of the cousin in regard connect himself. State v. McDonald, 55 Or., to whom the declarations were made, with 419, 103 Pac. 512, 104 Pac. 967, 106 Pac. the decedent, should be established before 444.

the declarations in regard to the conduct






36 L.R.A. (N.S.) 530, 107 Pac. 105, 21 Ann. , v. Crawford, 3 Wall. 175, 18 L. ed. 186; Cas. 1302; Sitler v. Gehr, 105 Pa. 592, 51 Young v. Shulenberg, 165 N. Y. 385, 80 Am. Am. Rep. 207; Mann v. Cavanaugh, 110 Ky. St. Rep. 730, 59 N. E. 135; Layton v. Kraft, 776, 62 S. W. 854; Re Robb, 37 S. C. 19, 111 App. Div. 842, 98 N. Y. Supp. 72; Jew16 S. E. 241; Scheidegger v. Terrell, 149 ell v. Jewell, 1 How. 219, 11 L. ed. 108; Ala. 338, 43 So. 26; Re Heaton, 135 Cal. Greene v. Almand, 111 Ga. 735, 36 S. E. 385, 67 Pac. 321; Chilvers v. Race, 196 Ill. 957; Atty. Gen. v. Kohler, 9 H. L. Cas. 685, 71, 63 N. E. 701; Cox v. Brice, 86 C. C. A. 8 Jur. N. S. 467, 5 L. T. N. S. 35, 9 Week. 378, 159 Fed. 378; Byers Bros. v. Wallace, Rep. 933, 2 Eng. Rul. Cas. 186; Jackson v. 87 Tex. 503, 28 S. W. 1056, 29 S. W. 760; Jackson, 80 Md. 194, 30 Atl. 752; WashingSmith v. Smith, 140 Wis. 599, 123 N. W. į ton v. Bank for Sav. 171 X. Y. 160, 89 Am. 146; Alston v. Alston, 114 Iowa, 29, 86 N. St. Rep. 800, 63 N. E. 831; Jackson ex dem. W. 55; Fowler v. Simpson, 79 Tex. 614, Garland v. Browner, 18 Johns. 37; l'ise v. 23 Am. St. Rep. 370, 15 S. W. 682; Louder Wynn, 59 Miss. 588, 42 Am. Rep. 381. v. Schluter, 78 Tex. 105, 14 S. W. 205, 207; Overby v. Johnston, 42 Tex. Civ. App. 348, Werner, J., delivered the opinion of the 94 S. W. 131; Layton v. Kraft, 111 App. court: Div. 842, 98 N. Y. Supp. 72; Davies v. The state has in its possession money and Lowndes, 12 L. J. Exch. N. S. 506, 7 Scott, property aggregating over $50,000 in amount N. R. 141, Mann. & G. 471.

and value, which it received from the estate Messrs. August Merrill and Francis L. of one William A. Kenneally, who died Ganley, with Mr. Thomas Carmody, At- testate in the city of Brooklyn in 1868. No torney General, for respondent:

person entitled to this property could be Before the declarations of Mary Hardi- found, and it was turned over to the state man Moan and Margaret Kearns Hardiman to await the appearance of claimants. were received, it should have appeared that Many persons, to the number of one hunthey were related by blood or marriage to dred or more, have at different times preWilliam A. Kenneally, the decedent. sented their claims based on their alleged

Fulkerson v. Holmes, 117 U. S. 397, 29 relationship to the testator, but none was L. ed. 918, 6 Sup. Ct. Rep. 780; Blackburn successful until the present petitioner apand habits of the cousin could be received concerning whom the declarations in evidence.

made, and so, where the declarations of the Questions of pedigree, such as marriages, mother, since deceased, tended to show that births, and deaths of members of a family, at the time in question she was not the wife making family history, may be proven by of defendant, they showed that she was not declarations of the members of a family within the restricted class referred to, and which go to make family tradition and carried with them the evidence of their own history, and there is no reason why the inadmissibility as to matters of edigree. atlidavit of a deceased heir, who is properly In State v. McDonald, supra, however the accredited and identified as a member of the court said that there was family of decedent, may not be used to prove least in near putative relationships, why the the declaration as to family history, but negative of the fact of relationship or the such hearsay testimony should not be used degree of relationship should not be as when the same facts may be shown by living much a part of the family history as the witnesses whose testimony may be produced affirmative of such proposition, and on the trial, or by deposition subject to the | where the claimants of an estate attempted ordeal of cross-examination. Wolf v. Wil to show their right thereto by proving that helm, Tex. Civ. App. -, 146 S. W. 216. the intestate was a legitimatized brother of

The declarations or acts of the intestate the whole blood, a prior declaration made tending to show his own illegitimacy are by one of the claimants, who at the tim of admissible as against those claiming under the trial was out of the state so as to come him. State v. McDonald, supra.

within the rule the same as if he were des Declarations of a father as to the patern- ceased, to the effect that intestate Wit's an ity of an illegitimate child may be shown illegitimate half-brother, was admissible, not upon an issue as to the child's parentage. only against himself as being a declaration Robertson v. Campbell, Iowa, 147 N. against interest, but also against the other W. 301.

claimants as a declaration as to pedigree. In Hubatka v. Maierhoffer, 81 N. J. L. In Re Fail, 56 Misc. 217, 107 N. Y. Supp. 410, 79 Atl. 346, where the right of plain- 224, upon the issue whether a contestant of tiff in an action of ejectment depended upon a will was the son of the testator, the the contention that, at the time of the con- declarations of the testator and of his wife, veyance of the property to her mother and who predeceased him, and of a brother, since deiendant, they were not husband and wife, deceased, of the contestant, to the effect it was held that the admission of decla- that the contestant was not the son of the rations to prove pedigree is restricted to testator, but the nephew of his wife, were declarations of deceased persons who were held admissible as declarations as to pedirelated by blood or marriage to the person 'gree.

R. L. S.


reason, at


peared and satisfied the referee of the va- larations is given by the petitioner and lidity of his claim.

these nephews and nieces. The petitioner and appellant, John Ken- The question at issue will be the better neally, asserts that he is a half-brother of understood if we separate the evidence inthe testator, and entitled as such to at to two parts, dealing first with that which least one half of the fund held by the state. relates to the pedigree of the testator, and He instituted this proceeding in November, then with so much as bears upon the pedi1910, under the provisions of $ 2747 of the gree of the petitioner, for the purpose of Code of Civil Procedure. A referee was determining whether there is any evidence appointed to hear and determine the issues. by which the two are connected. After a careful and painstaking review of First. The testator, William A Kenneally, the evidence, the referee reached the con- died in Brooklyn in 1868, leaving a will in elusion that the petitioner had proved his which he stated : "It is now about forty relationship to the testator, and that he years since I parted with my brother Edwas entitled to the whole of the fund beward. The separation took place in Canada cause there appeared to be no other persons at a place called Amherstburg. He was goin existence who had any right to share ing to the state of Michigan. Edward was therein. The court at special term con- born on the 30th of July, 1813, in England. tirmed the referee's report. Upon appeal Our father's name was John. Our mother's to the appellate division this determina- maiden name was Mary Finn. Our parents tion was reversed upon the facts and the were both natives of Ireland. I desire par. law, and the petition was dismissed. ticularly my executors to make diligent in

The principal reason assigned by the ap- quiries and search, particularly about Ann pellate division for its reversal was that Arbor, Michigan, and to discover if possible the referee had erred in receiving incompe- my long lost brother.” tent evidence, consisting of declarations It is not disputed that the testator's said to have been made by the petitioner's father was one John Kenneally, a sergeant mother and his half-sister, for the purpose in the British army, attached to the Sixtyof proving the petitioner's relationship to Eighth Infantry. He was married in Irethe testator's father, one Sergeant John land to Mary Finn. After his marriage, Kenneally, and, through this connection, and from 1827 to 1829, he was stationed at his relationship to the testator. The ground Amherstburg in Canada, where he had with On which these declarations were held to him his wife and two sons; William, then be incompetent is that there was no evi. about fifteen years of age, and Edward, denee, except the declarations, to prove the about three years younger. In 1829 Serdeclarant's relationship to the testator's geant John returned to England with his family. This presents the important ques. regiment, leaving his wife and two sons in tion on this appeal. The referee and the Amherstburg. Shortly after his departure, court at special term held that these dec. his wife left Amherstburg for Ann Arbor, larations were competent evidence of the Michigan, taking with her the younger son, petitioner's claim of relationship to the Edward, and no trace has since been distestator. The appellate division took the con- covered of either. The son William retrary view, and further neld that, even mained in Amherstburg, in the care of a if the declarations were competent, the evi. Catholic priest called Father Fluett, until dence was yet insufficient to prove the pe-1831, when he came to this country. Sertitioner's claim. This latter question we geant John, upon his return to England, enneed not consider for reasons to which we tered a hospital as an invalid.

He was shall advert further on.

discharged from the hospital on January 30, The testator, William A. Kenneally, was 1830, on a pension of 6 pence per day. In the son of a sergeant in the British army the same year he was transferred to Quebec. named John Kenneally, by a wife whose After his return to Canada, and in 1832, he maiden name was Mary Finn. The peti- | commuted his pension at York (Now Torontioner says he is also a son of the same sto) for 200 acres of land on the PenetanSergeant John, but by another wife. If guichene road. Here ends all authentic this claim is well founded, it follows that evidence relating to Sergeant John. he is a half-brother of the testator. The Second. The petitioner, John Kenneally, only evidence of the petitioner's relation is a resident of Idaho City, Idaho. He has ship to Sergeant Jolin, and through him to there occupied various public positions and the testator, consists of declarations made is evidently a man of good repute. Accordto the petitioner by his mother, who has ing to his testimony he was born in 1833 been dead many years; and by the petition at Falls View, Canada, just opposite the er's half-sister, who is also dead, to her present city of Niagara Falls in this state. children, who are the petitioner's nephews His mother was Margaret Kearns Hardi. and nieces. The testimony as to these dec

He lived with his mother, who



moved to Cleveland, Ohio, where she died in in an even position without any temptation 1845 or 1846, when the petitioner was to exceed or fall short of the truth. Whitetwelve years of age, The petitioner has locke v. Baker, 13 Ves. Jr. 514, 9 Revised no recollection of his father, who died when Rep. 216; Berkeley's Petition, 4 Campb. the petitioner was between two and three 401, 14 Revised Rep. 782. The admissibiliyears of age. The petitioner testified that ty of such declarations is subject to three his mother had told him that she had mar-conditions: (1) The declarant must be deried John Kenneally, who was a soldier in ceased. (2) They must have been made the British army; that she was then a ante litem motam, i. e., at the time when widow, and he a widower who had two sons there was no motive to distort the truth. by a former wife, whom he had left at Am- (3) The declarant must be related either herstburg, Canada; that when they were by blood or affinity to the family concernmarried she was a laundress and he was ing which he speaks. The declarations a waiter for a man named Adam Crysler which we are considering concededly con

Falls View; that they subsequently form to the first two of these conditions. moved to Cleveland; that he had a patent The question here is whether they come for Crown lands in the locality of Georgian within the third. The learned counsel for bay which he was anxious the petitioner the respondent contends, and the appellate should have; and that she had been pos division has held, that the declarations of sessed of certain personal belongings of his, the petitioner's mother, Margaret Kearns such as a soldier might have, which had Hardiman, as to her marriage to Sergeant been destroyed in a conflagration in Cleve. John Kenneally, are not alone sufficient to land.

bring them within that part of the rule The petitioner had a half-sister, Mary requiring the declarations to be made by Hardiman, who died in Cleveland in 1885. a member of the family concerning which She and the petitioner lived with their they are advanced. More concretely stated, mother in Cleveland for two years prior to the decision is that such declarations are the mother's death. This half-sister mar- not competent, unless there is some proof ried a man by the name of Moan, and by dehors the declarations themselves that the him had five children. These children tes- declarant was related to the family which tified to the declarations of their mother the declarations are intended to affect. concerning declarations made to her by her Counsel for the appellant insists, on the mother. To state it differently, these wit- other hand, that these declarations, it taknesses repeated the declarations of their en as true, are shown to have been made by mother, Mary Hardiman, as to matters a member of the family of Sergeant John; which she said had been told by her mother, and the contention in this regard seems to Margaret Hardiman Kenneally. These dec. be that the declarations themselves supply larations were to the effect that Sergeant the necessary corroborative testimony. John had been the second husband of Mar- In Blackburn v. Crawford, 3 Wall. 175, garet Hardiman Kenneally and was the fath- 187, 18 L. ed. 186, 191, it was sought to er of the petitioner.

prove that certain persons were nephews Thus we have the statements of the pe. and nieces of one Dr. Crawford, whose estitioner as to declarations made to him by tate they claimed. They were children of his mother concerning his relationship to a woman who, it was claimed, had married Sergeant John, and the statement of the a brother of Dr. Crawford. This marriage children of petitioner's half-sister as to sim- was disputed. The declarations of a sister ilar declarations made by her in repetition of the mother of the claimants were received of what she had been told by her mother. in evidence to the effect that the mother This is all the evidence which in any wise had told her that she had married a brother tends to prove petitioner's relationship to of Dr. Crawford. These declarations were the testator, and it is of course apparent objected to on the ground that the declarthat, if the declarations of petitioner's ant was not shown to be related to the mother are not alone sufficient to prove her family of Dr. Crawford. In sustaining this marriage to Sergeant John, the petitioner's objection the United States Supreme Court, claim cannot be sustained. These declara. speaking by Mr. Justice Swayne, said: “It tions were duly objected to on behalf of is well settled that, before the declarations the state, and the exceptions taken to their can be admitted, the relationship of the deadmission in evidence raise the question to clarant to the family must be established by be determined.

other testimony. Here the question related Declarations in regard to pedigree, al to the family of Dr. Crawford. The defendthough hearsay, are admitted on the princi- ants in error claimed to belong to the family, ple that they are the natural effusions of and to be his nephew and nieces. To prove persons who must know the truth and who this relationship, it was competent for them speak on occasions when their minds stand to give in evidence the declarations of any de

It may

ceased member of that family. But the in and of themselves and without other evideclarations of a person belonging to an. dence, are to be held sufficient to establish other family-such person claiming to be a declarant's relationship to a particular connected with that family only by the in-family, we may as well frankly ignore the termarriage of a member of each family- third condition of the rule, to which we rest upon a different principle. A declara- have adverted, requiring that a declarant tion from such a source of the marriage must be shown to be a member of a family which constitutes the affinity of the de- before his declarations concerning its pediclarant is not such evidence aliunde as the gree are competent. The reason of the matla w requires."

ter is very felicitously stated by Mr. WharIn Fulkerson v. Holmes, 117 U. S. 389, 397, ton, where he says of a declarant: "It 29 L. ed. 915, 918, 6 Sup. Ct. Rep. 780, the would be a petitio principii to say that his heirs of one John Holmes claimed to be the declarations are receivable because he is owners of land patented to Samuel C. a member of the family, and he is a member Young. Their claim rested upon recitals of a family because his declarations are rein a deed by Samuel C. Young to John ceivable.” Whart. Ev. § 218. Holmes in which Samuel C. was stated to The qualification is one of growing imbe the son of Samuel Young, the original portance. Without it a person may estabpatentee. This deed, which was many years lish his relationship to any family he choosold, was found among the papers of John es by simply stating that he has heard Holmes after his death, and had been ac- from a member of his family a recitation of knowledged before a United States district the facts establishing the desired connection. judge. In that case the court said: “The In this country, filled with densely crowdrule is that declarations of deceased persons ed cities in which large fortunes are no who were dejure related by blood or mar- longer rare, it will be wiser and safer to riage to the family in question may be giv- maintain this rule, circumscribed by this en in evidence in matters of pedigree. {Cit- qualification, than to relax it even in cases ing cases.) A qualification of the rule is that appear to be meritorious. that, before a declaration can be admitted prove a hardship now and then to require in evidence, the relationship of the declar- even slight evidence of the relationship of ant with the family must be established by a decedent to the family of which he desome proof independent of the declaration clares before his declarations will be reitself. [Citing cases.] But it is evident ceived, but the consequences of the contrary that but slight proof of the relationship rule would inevitably be much more serious. will be required, since the relationship of With a single exception, the English cas. the declarant with the family might be as es sustain this qualification. Plant v. Taydifficult to prove as the very fact in contro lor, 7 Hurlst. & N. 211, 237, 31 L. J. Exch. versy."

N. S. 289, 8 Jur. N. S. 140, 5 L. T. N. S. It was there held that the recitals in the 318; Hitchins v. Eardley, L. R. 2 Prob. & deed, supported by the age of the instru. Div. 248, 40 L. J. Prob. N. S. 70, 25 L. T. ment and the manner of its execution, fur. N. S. 163; Smith v. Tebbitt, L. R. 1 Prob. nished slight but sufficient evidence tending & Div. 354, 36 L. J. Prob. N. S. 35, 15 L. to establish the fact set forth in the recitals. T. N. S. 594, 15 Week. Rep. 562; Atty. Gen. A similar situation was presented to this v. Kohler, 9 H. L. Cas. 660, 8 Jur. N. S. court in Young v. Shulenberg, 165 N. Y. 467, 5 L. T. N. S. 35, 9 Week. Rep. 933, 2 385, 388, 80 Am. St. Rep. 730, 59 N. E. 135. Eng. Rul. Cas. 186. It is also the rule in The rule in the Fulkerson Case was there other states. Northrop v. Hale, 76 Me. followed, and was thus stated by Judge 306, 49 Am. Rep. 615; Wise v. Wynn, 59 Vann: "While the law required that her Miss. 588, 42 Am. Rep. 381; Anderson v. [the declarant's] relationship to the Ellice Smith, 2 Mackey, 281; Lanier v. Hebard, family should be shown by evidence inde 123 Ga. 633, 51 S. E. 632. The exception pendent of her own declarations, still, as referred to is found in a case cited by counwas recently held in an important case, sel for the appellant, which seems in theory 'but slight proof of the relationship will be to uphold the qualification above set forth, required, since the relationship of the de- but in fact ignores it. In Monkton v. Atty. clarant with the family might be as difficult Gen. 2 Russ. & M. 147, a narrative written to prove as the very fact in controversy,' hy one John Troutbeck, purporting to give -citing Fulkerson v. Holmes, supra. a genealogical account of his family, was

This important qualification as to the de- admitted in evidence as a declaration to gree of proof required to establish a declar- prove the relationship of the claimants to ant's connection with the family which is the testator, Samuel Troutback. John the subject of his declarations is based up- Troutbeck, the declarant, who had died prion sound reason, and is supported by the or to the trial, was a member of the family weight of authority. If such declarations, ' of the claimants; but if we read the facts

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