Morrill v. Otis

12 N.H. 466

• Court: Superior Court of New Hampshire
• Decided: December 15, 1841
• Status: Published

Opinion

Gilchrist, J.

The case finds that it was necessary for the demandant to prove who were the heirs at law of Richard Wibird. The evidence on this point is the testimony of Penhallow, who says that Richard Wibird died without issue, leaving three persons, his brother, his nephew, and his niece, his heirs at law. The tenant objects that this evidence is incompetent to prove the fact in question.

The relationship which certain individuals bear to a deceased person, such as brother, nephew, niece, &c., is a question of fact, to be proved before a jury. In the case before us, the alleged heirs at law were collateral relations, and their relationship to Richard Wibird should have been proved by showing, in some way, that they were descended from a common ancestor. That Thomas, for instance, was the brother of Richard, should have been shown by proof of the marriage of their father and mother, and that Richard and Thomas were the legitimate issue of that marriage. The same evidence, also, is necessary to show the relationship of the parents of Anthony Wibird and Sarah Penhallow to Richard Wibird. And to show that these persons were his nephe w and niece, the marriage of their parents, and their relationship to the deceased, should also have been shown. In the absence of direct evidence of the marriage of these several parties, proof of their cohabitation as husband and wife, the education of their children as their legitimate issue, according to their station in life, and their acknowledging them to be such in the face of the world, must be given. This evidence would be competent to prove the relationship of the parties to Richard Wibird, and evidence of this general character must be submitted to the jury for that purpose. But to establish the fact that these persons were his heirs at law, farther evidence is requisite, of a negative character, showing that no other descendants from the common ancestor existed at the time, to share the inheritance with them. The degrees of consanguinity in which the various persons stood to the deceased having been proved, it is then a matter for the court to determine who among them were his heirs at law. This is an inference to be made from facts proved. But Penhallow swears not only to the inference of fact, but to the inference of law likewise ; and no witness can testify to any conclusions, except as to matters of skill as an expert. He not only states that Thomas was the brother of Richard, which is a conclusion to be made by the jury from evidence tending to prove that such was the case; but he states that the persons mentioned were the heirs at law, which is a matter for the court to determine. His testimony, therefore, if admitted, precludes the jury from examining the question of fact, and the court from determining the question of law; and we think it was improperly admitted.

The testimony of Penhallow is also inadmissible to prove that Richard Wibird died intestate as to his wild lands. If he died intestate as to his wild lands, the inference would seem to be that he disposed of his other property by will. But whether he did thus die intestate, is to be determined from an examination of the will, the construction and effect of which are matters of law for the court. Whether his wild lands are comprehended in any devise of the rest of his real estate, is not a matter to be settled upon the testimony of witnesses, but upon an examination of the language used by the testator. But the witness is not competent to state that the deceased died testate or intestate. The grant of letters of administration is better evidence of intestacy, than the testimony of the witness. But we are not aware that there is any presumption of law, either that a person died testate or intestate. To prove that he left a will, an examination should be made of the records of the court of probate, that being by statute the place of deposit for wills. If no evidence can be found there, then the presumption will be, prima facie, that he died intestate. But upon no ground whatever can a witness be permitted to state, in this comprehensive manner, what is, in substance, his legal opinion of the meaning and intent of the will, where no search has been made for the instrument, in its ordinary place of deposit ; and no evidence is offered, except the inference that may be made from the testimony of the witness, of its existence, and none at all of its destruction or phraseology. We think, therefore, that on this point, also, the testimony of the witness was improperly admitted.

The other objection, that the plan was inadmissible on account of the words written upon it, must be overruled. An alteration of an instrument is something by which its meaning or language is changed, either in a material or an immaterial particular. If what is written upon, or erased from the paper containing the instrument, have no tendency to produce this result, or to mislead any person, it cannot be said to be an alteration. Now it is very evident that the memoranda upon the plan were intended only to enable the person making them to remember who desired to purchase the lots, and to whom and when lot No. 38 was sold. They do not affect the authenticity of the plan, for that is admitted to be the genuine plan. They do not vary in any way the courses and distances of the lines separating the lots, or the relative situations of the lots to each other. It may be said that they disfigure the face of the plan, because it was not intended to be a place of record of conveyances, or offers to purchase, but it does not follow that they alter it. It was not intended to be disfigured by time, by stains, by accidental blots, or for any other purpose than a delineation of the land ; but all these tend as much to change its meaning as do the memoranda. All that can be said of them is, that they should be entirely disregarded by the jury, and are to be treated as if they did not exist; and the jury should be instructed to that effect, if desired. Even if it might have been said, on the production of the plan, that the memo-randa might have some weight in inducing the jury to believe that the conveyances mentioned in them were actually made, that objection was obviated in the course of the trial, for the deeds were produced and proved. Nor is there any evidence that they were made with any intent to mislead or injure any person ; and whether such evidence would have rendered the plan inadmissible, it is unnecessary here to determine. Such being our views, we are not called upon to investigate the numerous decisions to be found in the books upon the question of alterations in instruments ; and, even if these memoranda could, without an abuse of language, be considered as amounting to an alteration, it would be an immaterial one ; because by it, in the language of Parsons, C. J., in Smith vs. Croaker, 5 Mass. 540, “ neither the rights or interests, duties or obligations, of either of the parties are in any manner affected or changed.”

For the admission of the other evidence in the case, the court are of opinion that the verdict must be set aside, and that there should be a

A'ew trial.