Fritz Nehring et al. v. Victoria McMurrian et al., 94 Tex. 45

WILLIAMS, Associate Justice. The defendants in error, who were plaintiffs, brought this suit to recover an interest in the land sued for,- claiming such interest had been inherited from Peter Conrad, the original grantee, by his nephew, Frank Conrad, and that, upon the death of Frank Conrad unmarried and without issue, it had been inherited from him by his mother, Mary, and upon her death,'had been inherited by plaintiffs, her brother and sisters.

There was no direct evidence of the death of either Frank Conrad or his mother, but plaintiffs undertook, by proof that they had both disappeared and had not been heard from for more than seven years, to raise the presumption (1) that Frank Conrad had died without issue before his mother, and (2) that the latter had subsequently died.

Their evidence tended to show that Frank Conrad, then 14 to 16 years of age, was last heard from in 1868, since which time those of his relatives and friends who would most probably have received intelligence of him had not heard of his existence after due inquiry; and that his mother was last seen alive in 1878, since when nothing further had been heard of her. The verdict of the jury was in plaintiffs’ favor upon both propositions, and the sufficiency of the evidence to authorize the finding is not questioned.

The defendants adduced evidence of a witness which, if true, proved that Frank Conrad was seen alive as late as 1893, but this the jury must have found to be unworthy of credit. The assignments of error are based upon the refusal of a requested instruction and the exclusion of evidence by the trial court. The refused instruction was as follows: “The plaintiffs are not entitled to recover in this cause unless yon believe from the evidence that Frank Conrad is dead; and further, that at the time of his death he did not leave a surviving wife, child or children, or the descendants of either.

Ton are further instructed that you are not authorized, in the absence of evidence, to presume that said Frank Conrad did not leave a surviving wife, child or children, or the descendants of either, and unless there has been evidence offered tending to establish the fact that at the death of said Frank Conrad, he did not leave a surviving wife, child or children, or the descendants of either, yon will find for the defendants.” A witness named Achee testified that in 1889 he knew a man named Frank Conrad who lived in East Baton Rouge Parish, Louisiana, stating approximately his apparent age, in connection with which defendants offered1 the further testimony of the witness that Conrad stated to him that he was born at Woodville, Miss., that his father’s name was' Fred Conrad and his mother’s name Mary, and that his father died at Woodville while he (Frank) was a child.

These facts correspond with those proved by plaintiffs as to the birthplace and parentage of the Frank Conrad under whom they claimed, and, if admitted and accepted as true, would have destroyed their case entirely, or have limited their recovery to a smaller interest than they recovered. The evidence was excluded- upon plaintiffs’ objection that it was hearsay and self-serving and that it was not shown that the Conrad who made the declarations was dead. Defendants also offered to prove by Mrs.

Englander, a cousin of the Frank Conrad under whom plaintiffs claim, that in the latter part of 1896 or early part of 1897 (after this suit was brought) she was informed by one Holman, who knew Frank Conrad when a child, as well as his father and mother, in Woodville, Miss., that Frank Conrad was living on the Yazoo River, in Mississippi, in 1891 or 1892. This evidence was also excluded on the ground that it was hearsay. 1.

The proposition stated in the first sentence of the refused instruction, that the plaintiffs must show that Frank -Conrad was dead and that he did not leave surviving wife, or children, or descendants of either, was fully given in the charge of the court, and the jury must have found that such proof was made in order to reach the conclusion expressed in their verdict. The other sentence of the requested charge contains the proposition that the presumption was not authorized, in the absence of evidence, that Frank Conrad left no surviving wife or child or the descendants of either.

This evidently meant that such presumption could not be indulged, even if the jury should find, as they must have found, if they accepted the evidence for plaintiffs, that Frank Conrad disappeared when he was 14 to 16 years of age and was never afterwards heard of, and therefore indulged the presumption of his death. There is respectable authority for the proposition that, where an unmarried man disappears and is unheard of for so long a time as to warrant the presumption of his death, the further presumption that he continued unmarried and died without issue is authorized. Shown v. Mackin, 42 Am.

Rep., 684, citing Rowe v. Hasland, 1 W. B., 404; Doe v. Griffin, 15 East, 293. Other authorities state that there is no such presumption. Abbott’s Tr. Ev., pp. 85, 86; Whart. on Ev., sec. 1279, and cases cited. This apparent difference. of opinion may disappear when the facts of the decided cases are closely analyzed, but it is unnecessary for us to critically examine the question as to presumption in the absence of evidence.

Conceding that the plaintiffs must furnish evidence upon the point besides the mere presumed death of Conrad, we think there were circumstances from which the jury could have properly found, if they concluded that the facts warranted the presumption that Conrad was dead at the end of seven years from the date when he was last heard from in 1868, that he died unmarried and without issue.

The facts that he died quite young, as presumed, that his relatives and friends who testified had never heard of his' marriage, the absen.ce of any claim made by wife or children during the long time which has passed in which both parties appear to have made diligent search for intelligence of him by inquiries and advertisements, all tend to the conclusion that he left no wife or child. Doe v. Griffin, 15 East, 293.

The requested instruction added nothing to the general charge except the proposition that the jury could not presume the fact in question in the absence of evidence, and this was inapplicable to the case, since there was evidence, and would have been misleading, as the jury -would probably have understood it to mean that they could not infer the fact that Conrad was not married and left no children from the facts before them, but that there must be testimony of witnesses addressed especially to the question of marriage and issue. 2.

Declarations such as those sought to he introduced from the testimony of the witness Achee have often been admitted upon issues involving pedigree, as tending to prove the identity and lineage of the declarant. Byers v. Wallace, 87 Texas, 503, and authorities cited. And some authorities hold such declarations to be admissible for the purpose of proving identity and kinship where an inquiry as to them is being made, whether the issue be one of pedigree or not. Mullery v. Hamilton, 71 Ga., 720; Jackson v. Etz, 5 Cow., 320; 1 Greenl. on E. 114g, and cases cited.

This principle, however, is an acknowledged exception to the more general one which excludes hearsay, and one of the conditions upon which such evidence may be received is that the declarant must be dead. These authorities can not, therefore, be said to authorize the admission of such a declaration as evidence of the existence of the facts declared, when the party who made it is still alive.

In the class of authorities above referred to, the statements were admitted as evidence to prove the truth of what was said, and a different question is presented when the mere fact that the declaration was made -is a circumstance tending to throw light on the inquiry. Where such is the case, evidence to prove the making of the declaration may be received from anyone who heard it made, and this kind of evidence does not come within the definition- of hearsay. The evidence in question is thought by the court to fall within this principle.

The mere fact that a party bearing the name of Conrad made such a declaration is regarded as a circumstance to be weighed by the jury in connection with the other evidence for the purpose merely of determining his identity, although his declaration is not to be taken as evidence to prove the truth of what he said.

In the opinion of the court, such statements made by a party, before any controversy had arisen, in his ordinary intercourse with those by whom he is surrounded, occurring naturally as a part of his daily life and conduct, and being the means by which people generally learn and act upon his identity and antecedents, afford circumstantial evidence tending to show who he is. They are of a character not inherently different from his statement as to his name, etc. Evidence of a somewhat similar character has been admitted in a number of Texas cases: Howard v. Russell, 75 Texas, 171; McNeil v.

O’Connor, 79 Texas, 227; Hickman v. Gillum, 66 Texas, 314; Baker v. McFarland, 77 Texas, 294; Chamblee v. Tarbox, 27 Texas, 139; Odom v. Woodward, 74 Texas, 41. In these cases, the parties who made the declarations were dead before the trial, but that fact is not thought by the court to affect their admissibility for the limited purpose just explained.

The conclusion reached by the court is, that while Conrad’s statement that he was born at Woodville and that he was the son of Fred and Mary Conrad can not be regarded as evidence of those facts, in the absence of proof of his death, yet the fact that he made the declaration and possessed the knowledge that it disclosed is a circumstance tending to establish his identity, which the defendant was entitled to lay before the jury. 3. The evidence of Mrs. Englander was properly excluded because the communication was made to her after suit was commenced.

It is a limitation upon the admission of declarations to prove pedigree, matters of public and general interest, boundaries, and like facts, that such declarations must have been made ante litem motam. In inquiries concerning a person who has disappeared, for the purpose of determining whether or not his death should.be presumed, evidence that he has not been heard from is admissible to show the state of facts out of which such presumption may arise; and, on the other hand, evidence that he has been heard from has often been admitted to exclude the presumption. Prudential Association v. Edmonds 2 L. R. App.

Cases, 487; Norris v. Edwards, 90 N. C., 382; Keech v. Rinehart, 10 Pa. St., 240; Dowd v. Watson, 105 N. C., 476; Smith v. Smith, 49 Ala., 156; Flynn v. Coffee, 12 Allen, 133. In cases where this character of evidence is admitted, the fact to be proved is that the party has not been heard from, and evidence that he has or has not is therefore not considered to be within the rule which excludes hearsay evidence.

Our statute (article 3372) is so worded, however, as to make it somewhat questionable whether or not the same rules of evidence apply under it as are recognized where the rule upon which the presumption of death arises is differently expressed, as it is in most of the decisions which we have examined. French v. McGinnis, 69 Texas, 19; Smothers v. Mudd, 9 B. Mun., 490; Smith v. Smith, 5 N. J. Eq., 484; Wambough v. Schenck, 2 N. J. L., 388; Osborn v. Allen, 26 N. J. L., 388; Hoyt v. Newbold, 16 Vroom, 219, same case, 46 Am. Rep., 757.

In the Kentucky case cited it was held, under a statute the language of which is identical with that of ours, that evidence that the absent party had been heard from was not admissible, but that the fact that he was living must be shown by evidence of the fact other than hearsay; and some of the New Jersey cases tend to the same view. We do not, however, find it necessary to place our decision on so broad a ground nor to intimate an assent to this view. We rest the decision, as to the admissibility of the evidence offered, upon the proposition that such declarations made post litem motam are not competent.

No authority has been cited or found in which this limitation has been put upon the admission of declarations on such an issue, but we think the same reasons which exclude such evidence to prove pedigree and other facts above referred to apply here. In Stein v. Bowman, 13 Peters, 220, a case of pedigree, it is said: “The declarations offered as evidence were made subsequent to the commencement of this controversy, and, in fact after the suit was commenced. “It would be extremely dangerous to receive hearsay declarations in evidence respecting any matter, after the controversy has commenced.

This would enable a party, by ingenious contrivances, to manufacture evidence to sustain his cause. By interrogatories propounded in a cautious manner to unsuspecting individuals, he might elicit the answers he most desired. “It is therefore essential, when declarations are offered as evidence, that they should have been made before the controversy originated, and at a time and under circumstances when the person making them could have no motive to misrepresent the facts.” The reasoning of the court applies in its full force to the declarations of Holman, and it follows that the exclusion of them was proper.

The judgment is reversed because of the exclusion of Achee’s evidence, and the cause is remanded. Reversed and remanded.