aright there was no other evidence connect- |tions competent; but, until there is some ing the two families. Lord Brougham there independent evidence connecting his family said: "I entirely agree that in order to with the other family, the case is not admit hearsay evidence in pedigree, you brought within the qualification of the rule must, by evidence dehors the declarations, which is supported by the great weight of connect the person making them with the authority. Much more is this qualification family. But I cannot go the length of hold- to be observed in cases of asserted relationing that you must prove him to be connect- ship by affinity, as in the case of the deed with both branches of the family touch-clarant upon whom the petitioner relies ing which his declaration is tendered. to prove his consanguinity to the testator. That he is connected with the family is suf- Proof of the marriage of the petitioner's ficient; .. to say that you cannot re- mother to Sergeant John Kenneally is esceive in evidence the declaration of A, who sential to establish the petitioner's relationis proved to be a relation by blood of B, ship to the testator. There is no such proof touching the relationship of B, with C, un- in the case at bar, unless we accept the less you have first connected him also by mother's unsupported declarations as evievidence dehors his declaration with C, is dence of the asserted relationship, and this a proposition which has no warrant either we regard as inadmissible. in the principle upon which hearsay is let in, or in the decided cases."

son who claims to know the facts are to be regarded as competent, whether he is or is not related to the family of whose pedigree he speaks. The reasoning in support of this relaxed rule is well illustrated in Carter v. Montgomery, 2 Tenn. Ch. 216, 227, 228, where the prevailing English and Amer

There are a few jurisdictions in which it has been held that the declarant need not This case is often cited and has been the be related, either by blood or marriage, to subject of much comment, and it seems to the family of which he declares. It is of have produced most of the confusion in course the logical corollary of this unqualiwhich this subject of pedigree is involved.fied rule that the declarations of any perWhen that case came before the House of Lords upon an appeal in a subsequent proceeding (sub nom. Robson v. Atty. Gen. 10 Clark & F. 471), this question was not passed upon, and, in respect of the admissibility of the narrative of John Troutbeck, the court plainly stated that it desired to be "understood as not expressing any opin-ican rule is very clearly stated. ion as to the admissibility of it in point of law." In Wise v. Wynn, 59 Miss. 588, 42 Am. Rep. 381, the Monkton Case was commented upon as follows: "The same doctrine [i. e., requiring proof dehors the declarations] is announced in Monkton Atty. Gen. supra, though it may perhaps be doubted whether the conclusion reached in that case does not offend against the doctrine."

v.

"In England," says Chancellor Cooper, of Tennessee, "it is now well settled that hearsay evidence is resorted to in matters of pedigree, upon the principle of declarations forming a part of the res gestæ, and therefore original evidence, upon the ground of the interest of declarants in knowing the connections of the family. The rule is, consequently, restricted to the declarations of deceased persons who were related by blood Sitler v. Gehr, 105 Pa. 592, 51 Am. Rep. or marriage to the person from whom the 207, and Re Hartman, 157 Cal. 206, 36 descent is claimed, and general repute in L.R.A. (N.S.) 530, 107 Pac. 105, 21 Ann. the family proved by a surviving member. Cas. 1302, are in the same category with Vowles v. Young, 13 Ves. Jr. 140, 9 Revised the Monkton Case. That case also appears Rep. 154; Whitelocke v. Baker, 13 Ves. Jr. to be vouched for by no less an authority 514, 9 Revised Rep. 216; Doe ex dem. Banthan Prof. Wigmore in his well-known work ning v. Griffin, 15 East, 293, 13 Revised on Evidence, vol. 2, § 1491. If we read him Rep. 474, 86 Eng. Rul. Cas, 554. This docaright, he expresses the view that the Monk-trine is comparatively recent, even in that ton Case sets forth the true doctrine, and country, and, although the weight of Amerhe argues, in effect, that when a declarant is shown to be connected with the family whose relationship with another family is in dispute, his declarations are competent without any independent evidence connecting the two. This statement of the rule, it seems to us, is too broad. When a declarant who claims relationship by consanguinity has been shown to be a member of one branch of a family, it is of course not necessary to prove him also related to the other branch in order to make his declara

ican authority is tending in the same direction, there are many respectable decisions which make no such limitations. Banert v. Day, 3 Wash. C. C. 243, Fed. Cas. No. 836; Boudereau V. Montgomery, 4 Wash. C. C. 186, Fed. Cas. No. 1,694; Jackson ex dem. Ross v. Cooley, 8 Johns. 128; Pegram v. Isabell, 2 Hen. & M. 193; Walkup v. Pratt, 5 Harr. & J. 51. It is obvious that while the English rule may be most consonant to sound principle, and may answer the ends of justice in a dense popu

hearing, and as so modified affirmed, without costs to either party in this court.

Willard Bartlett, Ch. J., and Hiscock, Chase, Collin, and Cuddeback, JJ., con

lation and settled community, yet it scarcely suffices in a sparsely inhabited country with a migratory and rapidly changing population. It would be utterly inadequate in matters relating to a slave population, where the family is not legally recognized, cur. Hogan, J., not sitting. and, for the same reason, to the settlement of the rights of illegitimates. Where would the negro have been in suits for freedom, after a few years, on a change of domicil by the master, with the presumption of PEOPLE OF THE STATE OF NEW YORK, slavery against them by reason of color, if the English rule had been rigidly adhered to? In this state we have departed from it, and allow hearsay from other than members of the family, and public repute in the community."

This Tennessee case is fairly typical of a few others, which we deem it unnecessary to cite.

We live in a state where the social conditions, no less than the rapid growth of our population and the constant increase of similar family names, are urgent reasons for preserving the rule in its integrity. Identity of names, religion, and nativity are too common to be alone sufficient evidence of family connections. Any extension of the hearsay rule in regard to pedigree, permitting declarations by persons not related by blood or marriage to the person from whom descent is the matter in issue, would open the door to frauds and uncertainties, which should not be invited or encouraged.

The petitioner's case, whatever its merit, fails at the point of greatest importance, because it lacks the support of any evidence, aside from the declarations testified to by him and his nephews and nieces, which tends to establish his relationship to Sergeant John Kenneally, and through him to the testator, William A. Kenneally. We agree therefore with the appellate division in the conclusion that the petitioner has not proved his right to the money and property of William A. Kenneally's estate, now in the custody of the state.

The appellate division not only reversed the order of the special term, but dismissed the petition. If the appellate division intended to exercise the power which it now has under § 1317 of the Code of Civil Procedure, it should have made findings of fact which would support such a final determination. Bonnette v. Molloy, 209 N. Y. 167, 102 N. E. 559. We think this is not a case in which the courts can hold as mat

ter of law that it will be impossible for the 'petitioner to succeed upon a new hearing, for he may be able to adduce additional facts to support his claim.

NEW YORK COURT OF APPEALS.

ON COMPLAINT OF CARMINE E. PUG-
LIESE, Respt.,

V.

HAGBARD EKEROLD, Appt.

(211 N. Y. 386, 105 N. E. 670.)

Note. Expulsion or exclusion of child from school as excuse or justification for noncompliance with compulsory education law.

As to the power of school authorities to require attendance at a particular school as affected by location, accessibility, or distance, see note to Williams v. Board of Education, 22 L.R.A. (N.S.) 584.

As to what instruction constitutes compliance with compulsory education statute, see note to State v. Counort, 41 L.R.A. (N.S.) 95.

Many states have enacted laws or made vaccination of children as a condition to provisions for regulations requiring the their admission to, or attendance upon, public schools (as to the power of the state new to enact such laws, see notes to Duffield v.

The order of the Appellate Division should be modified by directing a

convicting him of violating the compulsory education law. Affirmed. The question certified by the appellate Verona Cent. Cheese Co. v. Murtaugh, 50 division was as follows:

Williamsport School Dist. 25 L.R.A. 152, | to the public school, and claims that he did and People ex rel. Jenkins v. Board of so and offers to continue to do so. The Education, 17 L.R.A. (N.S.) 710). In most of the cases on the subject under annotation, as in PEOPLE v. EKEROLD, failure to comply with these vaccination laws has been the ground of expulsion or exclusion, and the basis of the subsequent court controversy. There is a sharp conflict of opinion on this point.

Mr. Charles McIntyre, with Mr. Charles S. Whitman, for respondent: The court of appeals has no jurisdiction to entertain this appeal.

People v. Johnston, 187 N. Y. 319, 79 N. E. 1018; People ex rel. Public Charities & Correction Comrs. v. Cullen, 151 N. Y. 54, 45 N. E. 401; People v. Malone, 169 N. Y. 568, 62 N. E.

Hiscock, J., delivered the opinion of the court:

The defendant was duly convicted before a magistrate in the city of New York of violating the duty imposed on him as a parent by § 624 of the education law (Consol. Laws, chap. 16; Laws of 1910, chap. 140) to cause his son "to attend upon instruction," in accordance with the provi

The defendant was guilty of a misde- sions of § 621 of that chapter, and which

meanor.

Re Viemeister, 179 N. Y. 235, 70 L.R.A. 796, 103 Am. St. Rep. 859, 72 N. E. 97, 1 Ann. Cas. 334; Jacobson v. Massachusetts, 197 U. S. 11, 49 L. ed. 643, 25 Sup. Ct. Rep. 358, 3 Ann. Cas. 765; Cromwell v. Benjamin, 41 Barb. 558; People ex rel. Brooks v. Brooks, 35 Barb. 85.

struction is that penal statutes, such as the one under consideration, are not to be regarded as including anything which is not within their letter as well as their spirit, which is clearly and intelligently described in the very words of the statute, as well as manifestly intended by the legislature. Endlich, Interpretation of Statutes, 454. We must conclude from the foregoing that the compulsory education act, by its terms, did not make it obligatory upon the defendant to obtain a certificate. His sole duty prescribed by it was to send his son to school. He did this. The teacher refused the son admission simply because he did not present a certificate. There is nothing in this statute making vaccination mandatory in any case; neither does it require the child to produce a certificate that it has been successfully vaccinated or had smallpox. In order to sustain this judgment, we must say that the defendant was obliged by the terms of the statute to procure, and his son to present, a certificate. We cannot say this. The defendant made a complete answer to the case of the commonwealth when he showed that he had sent his son to school until he was denied admission by the teacher."

violation is made a misdemeanor. His child was between the ages of seven and fourteen years, and therefore came within those provisions of said latter section, which read as follows: "1. Every child within the compulsory school ages, in proper physical and mental condition to attend school, residing in a city or school district failure to furnish the certificate, except that the child is deprived of the privilege of attending school with other children of the neighborhood. These acts, at least the parts thereof material to this case, being penal in effect, must be strictly construed, and cannot be held to include anything not clearly and manifestly intended by their language. The act of 1901 required the defendant to send his children to school. This he attempted to do, by presenting them at the schoolhouse nearest his home, and asking that they be enrolled. In doing this, he complied with the provisions of the act. His children were not refused admission to the school because of either his or their failure to comply with any of the provisions of the act. Their admission was refused solely because of inability to present physicians' vaccination certificates required by the act of 1895, which relates to an entirely different subject. These acts are not in pari materia, and, even if they were, there is nothing in them either separately or read together which can reasonably be construed to make the vaccination of school children compulsory. The defendant, not having neglected any duty imposed upon him by the 1st section of the act of July 11, 1901, was improperly convicted, and the judgment of the magistrate must be reversed and set aside."

the presentation of a vaccination certificate to entitle a child to admission to school.

And in the Bauman Case, in answer to the contention of the commonwealth that the compulsory education act and the act requiring the vaccination of school children It will be observed that since in these must be considered as in pari materia, and cases the compulsory education acts were that, when so considered, not only required construed strictly without reference to the attendance at school, but also made com- | vaccination acts, which they failed to menpulsory the vaccination of all children tion, they are not necessarily authority in required to attend school, the court said: a case where the education act requires "We cannot agree with that contention. The act of 1901 contains no reference whatever to a certificate of vaccination. It merely enacts that parents shall send their children to school, and provides a penalty for their neglecting so to do. The act of 1895 makes it the duty of school principals to refuse admission to schools of children who do not present a physician's vaccination certificate. This act imposes a penalty upon the principal for admitting a child without such certificate, but inflicts no penalty upon either parent or child for

The view taken by the court in PEOPLE V. EKEROLD, where it does not appear that the compulsory education act made any reference to the vaccination act, is sustained by People v. Mellwain, 151 N. Y. Supp. 366. And in the same connection, see Shappee v. Curtis, 142 App. Div. 155, 127 N. Y. Supp. 33.

And in Walker v. Cummings, 107 L. T. N. S. 304, 76 J. P. 375, 28 Times L. R. 442, 23 Cox, C. C. 157, 10 L. G. R. 728, it was

And it is held in Saunders v. Richardson, L. R. 7 Q. B. Div. 388, 50 L. J. Mag. Cas. N. S. 137, 45 L. T. N. S. 319, 29 Week. Rep. 800, 45 J. P. 782, overruling L. R. 6 And Jones v. Rowland, 80 L. T. N. S. Q. B. Div. 313, 50 L. J. Mag. Cas. N. S. 630, 63 J. P. 454, 19 Cox, C. C. 315, holds 65, 44 L. T. N. S. 474, 29 Week. Rep. 631, that where the parent of a child ten years 45 J. P. 344, that a parent who, in obedience of age, who attended a voluntary public to an order of court to send his child to and elementary school, was informed that, a board school, sends the child there withfor reasons approved by the education department, the child must cease to attend that particular school, and attend another in the same district, but the parent continued to send the child to the same school,