Craufurd v. Blackburn

Bartol, .T., delivered the opinion of this court. Doctor David Craufurd, late of Prince George’s county, died about the 5th day of December 1859, intestate aud unmarried, leaving neither widow nor child, nor any descendants, father, mother, brother or sister. The appellant applied to the orphans court, for letters of administration on his estate, claiming to be the legitimate son of Thomas B. Craufurd, deceased, who was a brother of Dr. David Craufurd. This application was resisted by the appellee, upon the ground, that Thomas B. Craufurd never was lawfully married to the mother of the appellant; and that he, the appellee, being first cousin to the decedent, is next of kin, and entitled to letters of administration on his estate.

At the instance of the parties, three issues were framed by the orphans court, and sent to the circuit court of that county for trial; and the cause was afterwards removed to the circuit court for Charles county. The issues were as follows: .1st. Whether your petitioner, George T. Craufurd, is one of the next of kin to the said David Craufurd, on the paid of the father of said David Craufurd? 2nd. Whether there is any male, other than your petitioner, George T. Craufurd, of the next of kin to the said David Craufurd? 3rd.

Whether the said Thomas B. Craufurd was ever lawfully married to the said Elizabeth Taylor, before or after the birth of the said George T. Craufurd? The verdict of the jury upon all the issues, was against, the appellant, who reserved two exceptions at the trial, which are presented for our decision on this appeal. A great deal of testimony was produced, which it is unnecessary for us to notice; it was properly submitted to the jury, and passed upon by them. The maiden name of the mother of the appellant, was Elizabeth or Betsy Taylor.

To prove that she was lawfully married to Thomas B. Craufurd, the appellant offered, with other evidence, the declarations of Tb/mias B. Craufurd, made on several occasions, to the effect that she was his wife; ⁵⁴ and also called his mother to the stand, who testified, that she and Thomas B. Craufurd were married by a Catholic Priest, in the city of Washington, in 1835. To rebut this evidence, the appellee offered the declarations of Thomas, B. Craufurd, made in the year 1837 and afterwards, that he was not married to Betsy Taylor; to which the appellant objected, but the circuit court decided the evidence to be admissible, and the propriety of this ruling forms the subject of the first exception. ' By the ordinary rules of evidence, the declarations of persons, not parties to the cause, are excluded on the ground that they are mere hearsay. But it is a well recognized exception to this rule that, in matters of pedigree the declarations of deceased members of the family are admitted. Cope’s Adm’r vs. Pearce, 7 Gill, 247 . 4 G. & J., 416 . 1 “The term, pedigree, embraces not only descent and relationship, but also the facts of birth, marriage and death, and the time when these events happen.” 7 Gill, 264 .

This exception to the general rule had its origin in the necessity of the case. “From the necessity of the thing,” said Lord Mansfield, 4 Camp., 415, “the hearsay of the family as to marriage, births, and the like, are admitted;” this language is cited in 7 Gill, 264 . But it is objected, that although such declarations to prove pedigree are ordinarily admissible, yet they ought to have been excluded in this case, because the necessity did not exist, there being a party to the alleged marriage, living and competent to testify, and because it was inadmissible upon the principle, that the best evidence of which the nature of the thing is capable must be given. This objection arises from a misapprehension of the rule. Such declarations are not held to be admissible or inadmissible according to the necessity of the particular case; but they are admitted as primary evidence on such subjects by the established rule of law, which, though said to have had its origin in necessity, is universal in its application.

Nor do such declarations stand upon the footing of secondary evidence, to be excluded where a witness can be had who speaks upon the subject from his own knowledge. “Hear ⁵⁵ say evidence is of course inadmissible, if the person making the declaration is alive, and can be called. But the declaration of a deceased mother, as to the time of the birth of her son, are admissible, though the father is living and not called.” Hubback on Ihe Evidence of Succession, 660, (48 Law Lib.) In this case the testimony of the appellant’s mother was properly admitted; its weight was exclusively a question for the jury; but it cannot be said, as ¡natter of law, to have conclusively established the marriage, so as to exclude other contradictory and rebutting evidence, which was legally competent and admissible for the purpose of disproving her statement. In Hubback, 243, (47 Law Lib.,) it is said, “The proof of marriage by the register, or