Posey v. Hanson

10 App. D.C. 496, 1897 U.S. App. LEXIS 3186

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 6, 1897
• Docket: No. 640
• Status: Published

Opinion

Mr. Justice Shepard

delivered the opinion of the Court:

1. The chief points of contention in the case, and upon which it was evidently made to turn, arise on the admission of certain evidence and the charge of the court in respect of the issue raised as to the existence of a sister of Andrew Hanson, called Jane Willis, and the existence and survival of her issue.

Three witnesses testified that Andrew Hanson had a sister called Jane. These witnesses — Eliza Posey, Mary Queen, and Francis Pleasants — were all descendants of the maternal grandfather of Andrew Hanson, and therefore entitled to claim a part of the land in controversy in the same right with the plaintiffs. Eliza Posey was called by the plaintiffs, and said that Andrew Hanson had a sister called Jennie, whom she had once seen more than forty years before, when witness was a child. She did not know Jane had married or had children.

Mary Queen, a woman 77 years old, who was a grandniece of Andrew Hanson’s mother, Henrietta, knew Jane Hanson, or Willis, who lived in Charles County, Maryland. Saw her when she visited her mother, Henrietta Hanson, with whom Andrew Hanson was then making his home. On the last visit Jane had an infant with her, possibly two or three years old. It was carried about in her arms.

Frances Pleasants, a younger sister of Mary Queen, knew Jane Willis well, and saw her visiting the home of Andrew Hanson and his mother, by both of whom she was recognized as a sister and daughter, respectively. She was reputed married to one Willis, and had one child, that witness saw, and she heard of another. Andrew Hanson told her that Jane died in Baltimore after undergoing an operation for cancer. She heard her aunt, Lucy Duckett, who lived in Charles County, Maryland, where Jane Willis lived, speak of her marriage and birth of children. Lucy Duckett seems to have been an ancestor of one or more of the plaintiffs.

The defendant, Julia Hanson, also testified that Andrew Hanson had a sister Jane.

There was no other direct evidence on the point. Some witnesses for paintiff said they had never heard of a sister of Andrew Hanson. That he had a sister, called Jane, or Jennie, was virtually conceded, however, in the instructions asked by the plaintiff, the refusal of which has been assigned as error.

(1) The first of these instructions (No. 3 of record) is :

“The jury are instructed that there is no evidence in this case tending to. show that the alleged sister of Andrew Hanson was ever married, and as her death is conceded they must find for the plaintiffs if they believe from the evidence they are the heirs at law of Andrew Hanson.”

It was not error to refuse this instruction. The evidence was sufficient to require submission to the jury, and sufficient, also, considering the natural difficulty in obtaining direct evidence of marriage in such cases, especially after such great lapse of time, to warrant the jury in finding that Jane Willis was a married woman. Jennings v. Webb, 8 App. D. C. 43; 1 Taylor Ev., Sec. 578.

The same strictness of proof invoked herein by the plaintiffs would be fatal to their own case if applied to the evidence of their legitimate descent from the maternal grandfather of Andrew Hanson.

(2) Plaintiffs were put upon proof of their- own title, and upon its stren'gth alone depended their right to recover. McNitt v. Turner, 16 Wall. 352, 362. They are not aided by any weakness or want of title on the part of the defendant. The rule given in the charge to the jury, in respect of the burden of proof resting upon the plaintiff throughout the case, is the same that has always prevailed in Maryland in cases arising under the same statute. It is thus laid down in a well considered ease by the Court of Appeals of that State:

“ It was incumbent upon the lessors of the plaintiff claiming as they do by collateral descent, to show who was last legally seized of the land in controversy, and then to prove his death, wfithout issue; and next to prove all the different links in the chain of descent, which will show that the person last seized and the claimants descended from some common ancestor, together with the extinction of all those lines of descent which claim in preference to the lessors of the plaintiff. They must prove the marriages, births and deaths ■ and the identity of persons necessary to fix title upon themselves to the exclusion of others who would have, if in existence, a better title to the land sought to be recovered.” Sprigg v. Moale, 28 Md. 497, 505. See, also, Shriver v. State, 65 Md. 278, 287; Kelso v. Stigar, 75 Md. 378, 404.

It was also said in those cases: “The plaintiff must remove every possibility of title in another person in the line of descent before he can recover; no presumption being admitted against the person in possession.” The foregoing rule is reasonable and well' supported by authority. 1 Greenleaf Ev., Sec. 41; 2 Id., Sec. 309.

The instruction asked by plaintiffs (No. 4, record)

* was rightly refused because it conflicted with this rule. Its effect was to shift the burden of proof to the defendant, and require her, in order to defeat plaintiff’s recovery, to prove that the children of Jane Willis were living, or that they had living descendants.

(3) There was no error in refusing the two next instructions asked on this point (No. 5 and 13, record),† which informed the jury that as the children of Jane Willis had not been heard from for more than thirty-five years, the law presumes their death.

As we have seen, the burden of proof is upon him who asserts the death of a person standing in the way of his inheritance. And a person once shown to exist will be presumed to be alive for such time, at least, as is not contrary to the rule of nature in respect of the duration of human life. 1 Greenleaf Ev., Sec. 41.

It is well settled that where a person has left his own home or place of residence, and has neither been heard from, nor of, for a period of seven years, he may be presumed to be dead. Hamilton v. Rathbone, 9 App. D. C. 48. But to raise this presumption there must be some proof of inquiry made of the persons and at the places where news of him, if living, would most probably be had. Shriver v. State, 65 Md. 278, 287; Inhabitants of Hyde Parle v. Inhabitants of Canton, 130 Mass. 505, 507; Flynn v. Coffee, 12 Allen, 133; Lawson, Presumptive Ev., Sec. 237; 2 Wharton Ev., Sec. 1274.

The case of plaintiffs evidently proceeded upon the assumption that if Jane Willis ever existed, she had no legitimate issue. The record shows no inquiry made for these children, or their descendants, at the old home of their mother and father in Charles County, Maryland, or anywhere else. The time since they were last seen or heard of is not long enough to warrant the presumption of their death in the ordinary course of nature, for many of the witnesses in the case were older than they would be, if living. Moreover, this is not a case where the right depends upon the duration of one life only. Proof of death in such case must be followed by some evidence from which the jury may be allowed to infer that the deceased left no children or descendants. The law does not presume that a person “ proved to be dead left no children or descendants,” Shriver v. State, 65 Md. 278, 287; Hammond’s Lessee v. Inloes, 4 Md. 138, 174. The evidence was sufficient to justify the' jury in finding that Jane Willis had two children born in wedlock. These children may have been alive at the time of the trial. If dead, they may have had descendants living, and before a presumption of the extinction of that line of descent could be indulged there ought to have been some foundation laid in proof of inquiry and some attempt to trace the missing persons.

4. Another assignment under this head is founded in an exception taken to the refusal of the court “to strike from the record the hearsay testimony of Frances Pleasants, as to Jane Willis’ alleged children passing through Washington.” In her direct examination this witness stated, without objection from the plaintiffs, that she had heard of two children of Jane Willis passing through Washington just as the Civil War began, on their way to Georgia as slaves. She was cross-examined at great length by plaintiff’s counsel on this point, and it was made to appear that she heard the fact talked of at the house of Andrew Hanson. She was unable to name the persons who spoke of it. Counsel then moved the court to strike out the evidence “upon the ground that she says she heard it at Andrew Hanson’s house, but does not know from whom she heard, it.” Passing by the manner and form in which the question is presented, it might be said that the evidence was inadmissible had its purpose been to prove that Jane Willis had issue. But as a circumstance discussed in the family, we think it admissible as tending to show that children, whose existence had otherwise been actually proved, had subsequently been heard of by their relations. That the information concerning the arrival of the children in Washington may have come from a person not related to any of the parties, by blood or marriage, does not impair the competency of the evidence. There is no rule of law that confines intelligence of an absentee to any particular class of persons. Flynn v. Coffee, 12 Allen, 133. However, if the evidence were incompetent, the refusal to exclude it would not justify the reversal of the judgment; for under the opinion we have expressed as to the burden of proof that devolved upon plaintiffs; it could not have operated to their prejudice. The existence of the children having been proved, the plaintiffs had offered no evidence of their death or of facts that would reasonably raise a presumption of it.

2. As an admission of the defendant, Julia Hanson, plaintiffs read an affidavit made by her June 20, 1892, reciting that she was eighty-five years of age, and the widow of Andrew Hanson, and so forth; that there was no issue of the marriage, and Hanson had never before been married. It concluded as follows: “I also know that neither father, mother, sister or brother or other relative capable of inheriting his estate, except myself as his widow, who am the only legal and equitable owner of all the aforesaid real estate, [which was a different lot from that in this suit] which has always been inclosed and improved since my husband's death.”

Defendant, over the objection of plaintiffs, was permitted to offer evidence, through a witness named Thornton, tending to show that he had written the affidavit at the request of one Sigmund Block, who represented that he had made a sale of the said lots to some parties, and wanted to have the title “fixed up” by such an affidavit, so that the sale could be closed and the money paid. The’paper was drawn in accordance with Block's suggestion and signed by Julia Hanson, who could not read. Block carried off the paper, but the sale was never made. Julia Hanson testified substantially to the same effect.

The court was clearly right in permitting the defendant to explain the circumstances under which the affidavit had ;been made in order that the jury might determine the proper weight to be given to the facts so recited. 1 Greenleaf Ev., Sec. 108; 1 Wharton Ev., Sec. 259.

3. Several assignments of error are founded on exceptions taken to the evidence of Julia Hanson concerning conversations between her and her husband. Having previously testified that Jaue Willis had a child or children, she was permitted to say that her husband was very sick when the news came of the children passing through Washington ; so sick that she would not disturb him. That about two months later, when he had recovered sufficiently, she told him of it, and he expressed his sorrow. She said further, that she had heard him speak of his mother, but never of his father. Had also heard him say that his mother’s mother had been a -white woman. The immateriality of the evidence relating to the presence of the two children in Washington has heretofore been suggested ; and we do not see, nor has it been made to appear, how the interest of either party could have been affected by the statement as to the color of the grandmother. The sole ground of objection, however, was that the wife could not disclose communications made to her by her husband. In view of the change made in the rules of evidence by the act of Congress relating to the District of Columbia, the court did not err in overruling this objection. R. S. D. C., Secs. 876, 877.

Under the provisions of that act, the wife, in a suit against her involving her title to property, is at liberty, though not compellable, to disclose communications made to her during marriage by her husband. Smith v. Cook (present term), ante, p. 487; Stickney v. Stickney, 131 U. S. 227, 237; Hopkins v. Grimshaw (Supreme Court, U. S., January 15, 1897), 165 U. S. 342.

4. Other errors that may be considered together have been assigned on instructions both given and refused, in application to the evidence relating to the existence of descendants of the paternal grandfather of Andrew Hanson, who would, in such event, inherit to the exclusion of plaintiffs, who are descendants of the grandfather on the mother’s, side.

Besides the affidavit of the defendant, heretofore considered, and her answer to the bill in equity, that will be considered separately hereafter, there was no evidence introduced tending to show that the paternal grandfather had no descendant, other than Andrew Hanson, save that of certain witnesses related to him on the mother’s side, who said that they had never heard of any. No other inquiry seems to have been made concerning them.

(1) Whilst, under all the circumstances, the evidence may have been sufficient to authorize the jury to indulge the presumption that the brothers and sisters of Andrew Hanson’s father, if any, and their descendants, were dead, it was one of fact, and hence it was not error to refuse the instruction asked by the plaintiffs, that it was a presumption of law. Blackburn v. Crawford, 3 Wall. 175, 195; Inhabitants of Hyde Park v. Inhabitants of Canton, 130 Mass. 505, 509; 2 Wharton Ev., Sec. 1274.

(2) After that refusal the court gave the following instruction, as requested by the plaintiffs:

“If the jury find from the evidence that none of the family of Andrew Hanson ever heard of any brothers or sisters of Andrew Hanson’s father, or issue of said brothers or sisters, they may presume that there never was such issue on his father’s side.”

In connection therewith the following was given at the defendant’s request:

“The jury are instructed that they cannot presume that Andrew Hanson’s father had neither a brother nor a sister because those claiming to be the second, third and fourth cousins of said Andrew Hanson on his mother’s side never heard of such brother or sister, but they may consider such evidence in connection with other evidence in the case, and unless they find from all the evidence submitted to them that at the time of his, said Andrew Hanson’s, death, there was living neither a brother nor a sister of the father of said Andrew Hanson nor any descendants of such brother or sister, they must find for the defendant.”

Of his own motion the court then further charged the jury, in explanation of the foregoing, in these words:

“Those all taken together, gentlemen, upon this question of presumption, mean this: that from the mere fact that some of these distant relatives say they never heard of such brothers or sisters you cannot presume there were none, but you are to consider the evidence of the witnesses who are those distant relatives, and who say they never did hear of such brothers or sisters, with all the other evidence, and that if all the evidence taken together proves to your satisfaction that the relatives of Andrew Hanson never heard that his father had any brothers or sisters, you would be justified in assuming that he did not have any unless there is some evidence in the case which rebuts such presumption.”

Plaintiff’s instruction, as given, did not inform the jury who were included in the words “family of Andrew Hanson,” as used therein. The court’s explanatory charge cured that defect, as well as removed any injury that might have resulted to plaintiff from the instruction given at the request of the defendant.

Considering the minor importance of this issue, and the character of the testimony generally, we cannot perceive how any injury could have been done the plaintiffs by the qualification with which the charge concluded, namely, “unless there is some evidence in the case which rebuts such presumption.” There was some evidence to the contrary in the affidavit and the paragraph of defendant’s answer that had been read as admissions by her, though it may have been entitled to little weight.

5. The last assignment of error concerns so much of the court’s charge as relates to the effect of the affidavit of Julia Hanson, hereinbefore mentioned, and a paragraph in her answer to the bill in equity, both of which were offered as evidence against her. The court charged that the evidence had been offered as admissions by defendant that there were no heirs of the deceased Andrew Hanson; and that all that she had said upon the subject was to be taken and given such weight as it might be entitled to under all the facts and circumstances of the case.

(1) In so far as the affidavit is concerned, the question has been settled by what has been heretofore said in respect of the admissibility of the evidence tending to show the circumstances under which that affidavit had been procured from the aged and ignorant defendant.

(2) Both papers having been read by the plaintiffs as admissions of the defendant against her own interest, she was entitled to have all that she said, in immediate connection, considered by the jury; and the court did not err in the charge to that effect. 1 Greenleaf Ev., Sec. 201; 2 Wharton Ev., Sec. 1103.

(3) The record does not show that the answer of defendant, from which the plaintiffs read the paragraph, had been signed or sworn to by her. But, assuming that it had been sworn to by her as “true to the best of her knowledge and belief,” as is the practice, it was admissible as an admission merely. It could not operate as an estoppel, and it would have been error to give the instruction to that effect asked by plaintiffs. Buzzard v. Houston, 77 Tex. 436, 445; 1 Wharton Ev., Sec. 838; 1 Greenleaf Ev., Sec. 204.

(4) Moreover, the admission contained in the answer was of no importance whatever to the plaintiffs. If capable of helping the case of either party, it was that of the defendant rather. All that was admitted is, that “neither the father nor mother of Andrew Hanson are now living, nor are there living any brothers or sisters of said father or mother.”

This must have been true in the ordinary course of nature. The substantial question was, whether such brothers or sisters had ever existed, and whether they had descendants living at the'time the suit was begun. As to these, the answer proceeded, in the same sentence, “but as to whether there are any issue living, of any such brothers or sisters, this defendant cannot answer with certainty, and as to these allegations she calls for strict proof.” In respect of the sister of Andrew Hanson, and her issue, the paragraph proceeds with the positive assertion that “this defendant says she knows that said Andrew Hanson had a sister, one Jane Willis, a married woman, who died before said Andrew Hanson, leaving two children surviving her, and this defendant believes that said children or their issue are still living, and she denies that the complainants or the defendants other than herself are in any manner or degree entitled to the property described in the bill.”

As said before, the plaintiffs could not read a part of a single sentence of which this paragraph of the answer consisted, and exclude the remainder from the consideration of the jury.

The charge of the court, taken as a whole, contains a fair and impartial presentation of the case to the jury, and after a careful consideration of the entire record, we find no reversible error. The judgment must, therefore., be affirmed with costs; and it is so ordered. Affirmed.

After the rendition of the foregoing opinion, counsel for appellants filed a petition for a rehearing upon the ground that the 24th and 25th and 29th assignments of error had not been passed upon by the court in its opinion. These assignments were stated in the petition to be as follows:

(1.) That the court below erred in instructing the jury that “unless they believe that at the time of Andrew Hanson’s death there was neither a brother nor a sister of Andrew Hanson, nor any decendants of a brother or sister of Andrew Hanson, they must find for the defendant.” (2.) That the court below erred in instructing the jury that if they believed Jane Willis to be a married woman and left a child or children surviving her, then “they must find a verdict in favor of the defendant unless it has been proved that such child or children died without issue before the death of Andrew Hanson.” (3.) That the court below also erred in instructing the jury that “they must believe from all the evidence that she (Jane Willis) died without issue before these complainants can get anything.” Whereas it was contended by counsel that the instruction should have referred the failure of issue to the time of the bringing of suit and not to the time of the death of Andrew Hanson or Jane Wilson, inasmuch as they might well have left issue at the time of their respective deaths and yet said issue have become extinct at the time of the bringing of the suit.

The court' overruled the motion for a rehearing.

“4. The jury are instructed that the burden of proof is on the defendant, if she claims that any of the children of Jane Willis are alive, to establish that fact by satisfactory evidence, and also to establish by like evidence the identity of said children, and that there is no evidence in this case even tending to show that they are alive.”

“5. The jury are instructed that the alleged children of Jane Willis not having been shown by any evidence in this case to have been heard from for over thirty-five (35) years since they were last heard of, the law presumes that they are dead and the jury must so regard them.

“ 13. The presumption of law in this case is that Jane Willis and her children, if any she had, are dead, and also that the brothers and sisters and their issue, if any there were, of Andrew Hanson’s father are dead, and the jury must so find.”