text:
    ELI KLOTZ v. JAMES A. RHODES et al., Appellants.
    Division One,
    February 29, 1912.
    1- HOMESTEAD: Sale: Untimely Reinvestment. Where a homestead is sold the proceeds must he reinvested in a new homestead within a reasonable time in order to save the latter from execution sale under a judgment upon a pre-existing debt, and a reinvestment in the land in suit six years after the former alleged homestead was sold, absent any excusing circumstances, was not within a reasonable time.
    2. -: -:-: Abandonment. The law permits the exchange of one homestead for another, and the sale of one and the reinvestment of the proceeds in another, and if the acquired homestead is occupied as such within a reasonable time after the exchange, or if- the proceeds of the sale of the one is within a reasonable time invested in another, the law will not permit the holder of a debt existing at the time the exchange or reinvestment was made to step in and seize the last-acquired homestead under execution; hut the exemption right to a homestead may be lost by abandonment, and likewise may the owner of a homestead who has sold the same he held to have abandoned his right to reinvest the proceeds in another unless he reinvests within a reasonable time; 'and not only on the ground of abandonment should he he held to have lost a homestead in the last-acquired property unless the investment is made within a reasonable time, hut also because long delay effaces evidence'to prove or disprove fraud and perjury.

      3. -: -: Reinvestment: Question of Fact: Deference to Chancellor. Where the chancellor found the fact to he that the money with which the last homestead was acquired did not come from the sale of a prior homestead, and the testimony, though disputed, strongly supports that finding,"it will not he disturbed on appeal.
    Appeal from Wayne Circuit" Court. — lion. J. J. Williams, Judge.
    Affirmed.

      V. V. Ing for appellants.
    (1) Upon the uncontradieted evidence that the whole of the purchase price of the new homestead, it being the real estate involved in this action, was paid out of the money arising directly from the sale of the former homestead of the defendant James A. Rhodes, the finding, judgment and decree should have been for the defendants. Davis v. Fox, 59 Mo. 125; Drosten v. Mueller, 103 Mo. 624; Fulkerson v. Appington, 104 Mo. 472; Roselle v. Beckmire, 134 Mo. 380; Blount v. Spratt, 113 Mo. 48; State ex rel. v. Jarrot, 183 Mo. 204. (2) The appellate court will consider only competent testimony, and will exclude all other testimony, and will determine the cause according to the preponderence of the competent testimony. Sheridan v. Nation, 159 Mo. 27; Supreme Lodge v. Schworn, 80 Mo. App. 64; Trust Co. v. McDonald, 146 Mo. 467; Hall v. Hall, 77 Mo. App. 600, Givens v. Ott, 121 S. W. 23. (33) The homestead in the farm was not liable for plaintiff’s judgment under which the lands in controversy was sold, for the reason that he acquired said lands before the debt for which the judgment was rendered was contracted. Sec. 6711, R. S. 1909; Loring v. Groomer, 142 Mo. 1; Clark v. Thias, 173 Mo. 628. (4) The lands involved in this action, having been paid for with the proceeds of the former homestead, is also exempt from sale under execution on said judgment. Macke v. Bird, 13Í Mo. 682; Smith v. Ems, 91 Mo. 579; Bank Co. v. Brown, 165 Mo. 32; Rose v. Smith, 167 Mo. 81. (5) Plaintiff’s judgment is not a lien on the new homestead. Burton v. Lock, 162 Mo. 502. (6) Even if only a part of the purchase price paid for the new homestead was paid out of the proceeds of the former homestead, it is pro tanto exempt from the lien of plaintiff’s judgment and sale under execution thereunder, for the debt was contracted after the former homestead was acquired. Rose v. Smith, 167 Mo. 81. (7) The fact that the deed to the new homestead was made to Nancy Rhodes, the wife of the defendant James A. Rhodes, does not rob him of his homestead rights in the property. Bank Co. v. Brown, 165 Mo. 32; Rose v. Smith, 167 Mo. 81; Chare v. Jennings, 159 Mo. 544; Spratt v. Early, 169 Mo. 357; Peake v. Cameron, 102 Mo. 568; Kendall v. Powers, 96 Mo. 142.

      James F. Green and Ernest A. Green for respondent.
    (1) The testimony shows that James A. Rhodes bought the property after the rendition of the Klotz judgment, and paid-for it out of his mail earnings, putting the title thereto in his wife’s name. The trial court correctly held, therefore, that he had no homestead right in said premises which was exempt from execution under plaintiff’s judgment. Sec. 6711, R. S. 1909; Osborne & Co. v. Evans, 185 Mo. 509; Aereback v. Myer, 165 Mo. 685; O’Shea v. Payne, 81 Mo. 516; Bunn v. Lindsay, 95 Mo. 250; Barton v. Walker, 165 Mo. 25; Holland v. Rongey, 168 Mo. 16; Sperry v. Cook, 138 Mo. App. 296. (2) Under the testimony of both defendants, the property could not be claimed as a homestead exempt from plaintiff’s debt; a reasonable time only is allowed for the investing of the proceeds of one homestead in another, in order to make the second homestead free from the same debts as was the first. Sec. 6712, R. S. 1909; Zollinger v. Dunnaway, 105 Mo. App. 40; Stanley v. Baker, 75 Mo. 60; State ex rel. v. Hull, 99 Mo. App. 703; Goode v. Lewis, 118 Mo. 357. 1 .
   GRAVES, P. J.

Plaintiff was a judgment creditor of the defendant James A. Rhodes. The debt originated in 1893, and was reduced to judgment in 1897. This judgment of 1897 was revived in 1902, and under the latter judgment plaintiff caused execution to be issued, which was levied upon the property involved in this suit. At the execution sale, of which defendants had notice, plaintiff purchased the property. His petition is in three counts. All of the property involved was purchased by defendants after the date of the revived judgment. Part of it was deeded to the wife Nancy Rhodes, and part of it to the defendant James A. Rhodes.

The first count of the petition relates to the lands deeded to Nancy Rhodes. It charges that these lands were purchased with the money of James A. Rhodes, and the title taken in the name of the wife to fraudulently hinder and delay plaintiff as the creditor of said James A. Rhodes, and asked the court to decree that the said Nancy held said lands to the use of her husband, and to further decree that plaintiff acquired the title thereto at such execution sale- and that the said Nancy had no title therein or thereto.

The second count of the petition covers all the property in dispute and states a cause of action under the old section 650', Revised Statutes 1899.

The third count is one in ejectment, alleging ouster on the 11th.! day of August, 1907, damages in the sum of $200, and monthly rents and profits at ten dollars.

Defendant James A. Rhodes answered (1) by a general denial of all the facts pleaded except “the rendition of the judgment, the issuance and levy of the execution as alleged in plaintiff’s petition, and the sale under said judgment and execution of the land described in plaintiff’s petition, and the execution of the sheriff’s deed thereunder as alleged in said petition, and in the first count thereof” which he admitted;. (2) he says that the lands in dispute constitute ms homestead and were purchased with the proceeds of a previous homestead, which previous homestead antedated the judgment and debt to the plaintiff. He asks that plaintiff’s deed be cancelled as a cloud upon his title.

The answer of Nancy Rhodes was a general denial. Reply to the answer of James A. Rhodes was a general denial.

Judgment went for the plaintiff upon each count of his petition, and the defendants appealed. The evidence we discuss in connection with the points made.

I. To our mind the judgment nisi must be affirmed, and this for several reasons. In the first place the defendants claim to have sold what they called a homestead in January, 1899, for $825, and that the property in dispute was purchased with the proceeds of that prior homestead, after the wife had carried the money from 1899 to 1907, when the final payment was made. The principal property in dispute was purchased for $425 in December, 1904, or nearly six years after the sale of the alleged homestead. Defendants claim to have paid $100 down at the time (other evidence is only fifty dollars), and to have assumed a first mortgage for $100, and to have given a second mortgage for $225. The final payment was not made until 1907, but this date is immaterial for the point we have now in view. The plaintiff claims that although it be conceded that defendant Jas. A. Rhodes did have and did sell a homestead in 1899, which homestead was exempt from the plaintiff’s debt, yet that he only had a reasonable time in which to reinvest the proceeds of that homestead in another homestead, so as to make the latter execution proof, and that inasmuch as the property in question was not acquired within a reasonable time, such reinvestment does not meet the requirements of the law. In this contention we think the plaintiff is right. The law never contemn plated that the proceeds of the first homestead could be carried around in a belt four, five or six years, hid out from taxation, and at the end of six years be put in other property and such property stamped as a homestead as against a pre-existing debt.

Whilst the law allows a person to sell one homestead and purchase another, which other shall be as fully exempted as the first, yet there being no time fixed by the statute for this reinvestment, the- law steps in and fixes a reasonable time, as the date for the act of reinvestment and reoecupancy. It is also true that what is a reasonable time for such act of reinvestment and reoccupancy is dependent somewhat upon circumstances, yet it cannot be said that six years, with no excusing circumstances, is a reasonable time.

In Zollinger v. Dunnaway, 105 Mo. App. l. c. 40, Ellison, J., thus expresses the rule :

“It is true that one may exchange his homestead for another and that reasonable time will be allowed him in which to remove from one to the other. Or, he may sell one homestead with intent to invest the proceeds in another and a reasonable time will be allowed for such purpose. [State ex rel. v. Hull, 74 S. W. 888.] Rut the idea of occupancy can never become dissociated from the homestead. Its name implies that. The time of going from a former to a later homestead, will, of course, be governed by reasonable circumstances, but the circumstances detailed by defendant do not fill that requisite. In Goode v. Lewis, 118 Mo. 357, the deeds for exchange were made and Lewis intended to remove to his newly acquired place as soon as he recovered from sickness then upon him. He did not recover and in two months died without having carried out his intention. The court held such circumstances excused the delay aud the failure to occupy. Considering defendant’s conduct and citizenship in residing elsewhere for several years; that the premises have no house enabling them to be occupied, and no more prospect of ever having than there has been in the past; it would be manifestly unfair to permit him to treat them as a homestead and a bar to the rights of his creditors.”

The case of Goode v. Lewis, 118 Mo. l. c. 364, thus states the rule:

“It necessarily requires an interval of time to move from one place of residence to another. In view of this fact, and to carry out and give effect to the policy of the law in allowing one homestead to be exchanged for another, and to giving the claimant all the homestead rights in the new one that he had in the old, a reasonable time must be allowed to accomplish the change of residence. What will be a reasonable time must, to a great extent, depend upon the circumstances of the particular case.”

The exemption right to á homestead may be lost by abandonment. One may so abandon the occupancy of his homestead as to lose the exemption right. So too his conduct may be. such that in law he will be presumed to have abandoned the idea of reinvesting the proceeds of a homestead in a new homestead. Such is the case at bar.

The evidence discloses that nearly six years elapsed before the defendant James A. Rhodes made any attempt to reinvest the alleged proceeds of an alleged previous homestead in a new homestead. Had he left the original homestead for that length of time, with no act tending to show an intention to resume the possession of the homestead, we should certainly declare as a matter of law that there- had been an abandonment of the homestead right. So too we should say under the same facts that if he ever had an intent to reinvest the proceeds in a new home, such intent had been abandoned. Bnt we are not forced to this analogy under the ease law. Not that such is not a proper doctrine, but because the courts have seen fit for other evident and potential reasons to adopt the rule that only a reasonable time should be allowed for the transmission of the funds from one homestead into another. Our cases do not discuss all the reasons to my mind. They proceed upon the well-recognized rule that when time is allowed for doing an act, and no specific time is given by the law, then the law fixes a reasonable time for the doing of the act. This is a good and sufficient legal reason for the rule. But to my mind there is another just as potential. Time effaces the evidence to prove or disprove a given fact. Fraud and perjury is given more latitude if long length of time be tolerated for the transmission of the proceeds of one homestead to another. A great field for perjury and fraud is thereby opened up, and the administration of justice is loth to sanction such conditions. These and perhaps other considerations enter into the now fixed rule that only a reasonable time shall be allowed for the purchase 'and occupancy of the new homestead. For this we say that the trial court’s judgment was right on this theory of the case.

II. But. there is another reason for the affirmance of this judgment. Under the evidence it was a contested question whether the property in dispute was purchased with the alleged proceeds of an alleged former homestead. There is much evidence tending to show that it was purchased with other funds. Defendant James A. Rhodes was a rural mail carrier getting sixty dollars per month, and there is evidence that the payments were made in small sums covering a period of nearly three years. There is evidence tending to show that at least two of these mail checks went into these payments. It would seem strange that the wife would carry $825 around in her belt for six years before the purchase of this property, and that .it should then be paid for in small sums covering this period of three years more. It is also strange that they were content to pay eight per cent interest on deferred payments, if they had the money at hand in the original bills as it came to them from the old homestead. The chancellor nisi had these Avitnesses before him, and evidently disbelieved their rather unreasonable story. We are inclined to the view that he did not misjudge the true situation. He has found the fact against them, upon disputed testimony, and we stall not disturb his finding. This disposes of the case without going into a neatly presented question as to whether in law and fact James A. ever had a prior homestead.

Let the judgment he affirmed.

All concur.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    PAULINA BAECKER, Appellant, v. MISSOURI PACIFIC RAILWAY COMPANY.
    Division One,
    February 29, 1912.
    1. NEGLIGENCE: Witness's Scruples. A witness lias a right to his scruples and to' say he cannot testify that a man on the railroad crossing could be seen by a man in the engine cab, but could testify that the man could be seen from a coach.
    2. -: Man on Track: Seen by Engineer of Approaching Train: Hypothetical Question. Where there is no testimony that the track was straight, it is very material to know where the man struck by the engine of a fast coming train is located by the hypothetical question, whether at the crossing, as the question assumes, or one hundred feet west of it, as the testimony shows, and whether in the middle of the track or on one side of it, and whether the outlook is from the cab, as the question assumed, or' from a coach, as the witness testified.
    3. -: -: --: Peril Discoverable. Where the case does not turn on a violation of a statute or ordinance relating to train signals at crossings or speed, but proceeds on the theory that no bell was rung or whistle blown, and the negligence of the pedestrian in voluntarily taking a position .of deadly peril too near defendant’s railroad track, with no regard for his own safety is beyond question, and be was struck by an oncoming train, while he was walking on the track, or between it and another, into which position h'e had shortly before come, and there being no showing that he was actually seen in peril by those in charge of the train, it is plaintiffs duty to show that by due care they could have so seen him in time to save him.
    4. -: —=-: -: -: No Right to Expect Clear Track. Assuming that the place where decedent was struck by the train was one where defendant was entitled to a clear track, but had no right to expect one, yet to hold defendant liable for his death he must have been in a position of peril long enough and far enough away for defendant’s servants in charge of the train to have seen him in time to have avoided striking him. Where the evidence is that he was walking in a place of safety betweeen the ties and at the last was seen on the ends of the ties, but there is no evidence of how long or how far he walked on them, there is no room for the application of the humanitarian doctrine, since being in a place of safety the law will presume he remained there until proof is produced showing that he moved into one of peril long enough before he • was struck to give the train servants a chance to save him.
    Appeal from Gasconade Circuit Court. — Ho». R. 8. Ryors, Judge.
    Affirmed.

      Breuer & Hensley and August Meyer for appellant.
    (1) The court erred in sustaining the demurrer to plaintiff’s evidence, at the close of her case. A demurrer to the evidence admits every fact which the jurors may infer, if the evidence were before them, and should be sustained only when -the evidence thus considered fails to make proof of some essential averment. Koexner v. Car Co., 209 Mo. 141; Riñe v. Railroad, 10 Mo. 228; Bender v. Railroad, 137 Mo. 242. (2) Under the evidence introduced, plaintiff was entitled to have her case submitted to the jury, under the humanitarian doctrine, as upheld by the Supreme Court of this State, and the court erred in overruling plaintiff’s motion to set aside the nonsuit. Chamberlain v. Railroad, 133 Mo. 587; Morgan v. Railroad, 159 Mo. 262; Revburn v. Railroad. 187 Mo. 565; Eppstein v. Railroad, 197 Mo. 720'; Lynch v. Railroad, 2138 Mo. 1; Ahnefeld v. Railroad, 212 Mo. 280; Murphy v. Railroad, 228 Mo. 56; Young v. Railroad, 227 Mo. 307; Fearons v. Railroad, 180 Mo. 208.

      G. D. Gorvm for respondent.
    (1) The presumption obtains that trainmen in charge of a train did their duty. Bluedorn v. Railroad, 108 Mo. 439; Jewett v. Railroad, 50 Mo. App. 547. The engine was moving at a slow rate of speed and the engineer had a right to presume that the deceased, if in danger, would — as he could easily have done— step far enough away to avoid any contact with the passing engine. Carrier v. Railroad, 175 Mo. 470; Chamberlain v. Railroad, 133 Mo. 604; Koegel v. Railroad, 181 Mo. App, 379; Hawkins v. Railroad, 135 Mo. App. 533; Skepton v. Railroad, 82 Mo. App. 142. (2) A mere “I did not hear” is entitled to no weight in the presence of affirmative undisputed evidence that signals could not have been heard, if given, on account of the noise made by a nearby engine blowing off steam. Henze v. Railroad, 71 Mo. 638; Cathcart v. Railroad, 19 Mo. App. 118; Culhane v. Railroad, 60 N. Y. 137; Bohan v. Railroad, 61 Wis. 391; Railroad v. Givens, 18 111. App. 404.
   LAMM, J.

Negligence. Plaintiff sues for $10,000 damages for the death of her husband and, cast below on a demurrer to hfer evidence, appeals.-

Morrison is a way-station on the main line of the Missouri Pacific railroad on the east side of Osage county. Gasconade is the first way-station east of Morrison on the same railroad and is located near the west bank of the Gasconade river in Gasconade county. Hermann is the capital of Gasconade county and the next station east of Gasconade on said railroad. Washington is a station on the same railroad on the east side of Franklin county and a good way east of Hermann.

On, the 9th day of November, 1907, one Frank boarded defendant’s train as a passenger at Washington and took passage to Hermann, near which place he lived. Drowsy from liquor he straightway fell asleep on the train and, passing Hermann, continued both bis slumber and trip to Gasconade where he got off. By this time he was partly sober, but, as if the hair of the dog was good for the bite, at once began drinking himself into a worse befuddled condition, in which predicament we leave him for the present.

Taking up another thread of the story, at about five o’clock of the morning of November 9, 1907, Hermann Baecker (husband of plaintiff) left his home six miles away to go to Morrison, there to take passage on one of defendant’s trains east to Hermann, to do some banking business. What bitter ill wind blew him elsewhere, or how and why he got to (or off at) the village of Gasconade is dark; but 11 a. m. of that day finds him there in company with Frank in a tippling house called Chill’s saloon south and east of defendant’s depot.

At that time there was an engine coupled to a freight train and headed east with steam up, standing on the side track at Gasconade. At that very time also a regular passenger train was due to pass west on the main line. We infer from a bit of testimony that Frank and decedent planned to interview the conductor of that freight train to see if he would carry them both east to Hermann. At any rate they left the saloon in company at that time and walked north on a little path (connecting the saloon and depot) to the tracks, there they turned west at a right angle around the nose of the freight engine, and proceeded toward the depot. Presently Mr. Baecker was struck by the engine of the west-bound passenger train running very fast and-was so grievously hurt that he died that afternoon in the town of Hermann, where he was carried. So much for an outline of the general facts. Further on we will state the immediate facts upon which plaintiff relies to recover.

Attending to the pleadings, the petition alleges a customary user of the track by pedestrians at the point of the accident with the forbearance and tacit consent of defendant for many years; that the track was straight there for a long distance east, and that while decedent was “walking on said track and right of way of defendant” he was struck and mortally injured by defendant’s train; that defendant’s servants and agents in charge of the train either saw or by ordinary care could have seen his peril and that he was unaware of the approach of the train; and that after-wards they negligently failed to warn him by bell or whistle and negligently failed to use the brakes or other appliances provided for stopping the train and putting it under control before it struck him, but on the contrary negligently ran its train against deceased, injuring and killing him.

The answer admits certain conventional allegations in the petition, and then denies generally each and every other allegation thereof. Next it pleads the contributory negligence of decedent in walking upon the track or dangerously near the same immediately in front of the train without looking or listening, without heeding any warnings given by defendant’s employees, or taking any care to avoid his own injury and in such close proximity to the train that it was impossible to stop the same and avoid his injury; and that decedent was a trespasser upon defendant’s track.

The reply put in issue the new matter in the answer.

In addition to facts already stated, plaintiff put in proof tending to show from Frank that he did not know how decedent and lie got on the other side of the freight train. He did not know whether they got across, climbed over or went around it, but they got around it some way. This witness (the main one) does not say that Mr. Baecker at any time looked for a train on the main line after he passed around or over the freight train, but does say that he (witness) did not see one. Neither does he say that they got on the railroad track itself when they passed around the engine and turned to the west. That is to say, it is left dark whether they (either or both) were on the track, or were between the main track and the side track at the start of their journey west-, and the best we can conclude is that Frank did not see Baecker again until “just as he got struck.” The record explains that in this way: Presently a brakesman on top of the freight train hailed Frank who stopped at the hail. The brakesman then chided him for remissness in hospitality in not taking him along to the saloon. During this talk Mr. Baecker left Frank and walked on. There is no testimony showing that Frank kept his eye bn him. "When he was fifteen or twenty steps ahead of witness the brakesman shouted “look out!” Witness then turned and looked east and saw the coming train. Referring to said distance, witness said he meant to say that Mr. Baecker was ten or fifteen steps from him when he was struck. “When the train (engine?) had passed, ’ ’ says the witness, he looked and saw Mr. Baecker with his hands behind him walking outside the track on the ends of the ties. When witness first saw the train it was about one car-length behind him (witness). The cross-heam of the engine struck Mr. Baecker and the next Frank saw of him he was lying on the side of the track. The wind was blowing, the train was not making much noise, and witness heard no signal by bell or whistle.

On cross-examination Frank would not say whether there was a whistle blown or bell rung, but reiterated that he did not hear any. He admitted he had stated to others that he was so excited that he did. not remember whether the whistle blew or not. He reiterated that he did not know whether he and Baecker had passed around the head of the engine or got through or over the train. At the time the brakeman called to witness, he “was in the middle of the track and Mr. Baecker was along side of the ties . . . when he saw him he was walking on the outside of the track, between the two tracks, on the outside of the ties, between the rails.” Witness saw him “just as he got struck.” He could hot. say how many steps he took and witness did not .see Mr. Baecker when he turned to cross over on the main track. Witness himself was in no danger when the brakesman shouted, “look out!” because he was between the two tracks. When he looked ahead he saw Mr. Baecker about as far away as “across this courtroom.” He locates this time as being after witness had his attention called to the train by the brakesman’s shout, and then he turned and looked east and saw the train and then looked for Mr. Baecker. He could give no distances because, he said, he was “a little bit intoxicated.” Frank also testified that the engineer could see a man where Baecker was from the train, but he does not say at what distance.

Mr. Yandewerken testified that he was sitting in his yard reading a newspaper under a shade tree about seventy-five feet north of where decedent was killed. He saw decedent and another man walking around the head of a freight engine taking water at the tank. They then walked toward the depot “in the middle between the two tracks.” (Note: there was no testimony as to how far these tracks were apart.) After that time witness next saw Mr. Baecker after the train had passed to the west. He did not hear the train coming, heard no signals and testified that he could not have heard any. He heard the freight engine blowing off and making “a great racket” and be saw tbe passenger train and beard some one say, “It bit somebody.” He testified also that there was a boat-landing át tbe bridge east of tbe village on tbe Gasconade river and that people used tbe track to go to tbe boat-landing and return.

On cross-examination it appears that tbe witness could not bear well. As be was born in 1829, be was seventy-nine years old at tbe time of tbe trial. The-record also shows tbe following question and answer: >■< “Q. Then when you saw tbe men walking up did you know just where they were? A. Well, I thought they were then between tbe two tracks. I looked up and I saw tbe two men walk around in front of tbe engine, and they walked on like they were between tbe two railroad tracks. Then I just kept on reading my paper and directly I beard someone say that a man was killed. I looked up and tbe train bad just about stopped then.”

By Mrs. Yandewerken it was shown that she saw tbe passenger train after it struck Baecker and beard no signals; also that people used tbe track to go to tbe river and return, “people used it every day almost, it is used as a footpath.” This bad been going on for twenty-three years. Being asked whether they walked on tbe track or at tbe side, she replied: “They walked all over it if they felt like it; tbe main track or side track, wherever they took tbe notion to walk.”

Ur. Haffner testified that be saw Mr. Baecker at Hermann, be described bis injuries and that be died shortly after surgical attention. Witness bad known him for thirteen years, and as far as be knew bis sight and bearing were good.

By Mr. Mumbrauer plaintiff proved that be lived at Hermann and went at tbe solicitation of plaintiff’s attorneys to take photographs and measure distances at Gasconade. It seems there is a road crossing over the tracks there, and there was testimony indicating that Baecker was struck about one hundred feet west of this crossing. The testimony of this witness is brief and we give it practically entire.

“Q. I will ask you to state, if a man standing upon the track of the Missouri Pacific Railway, at the crossing east of the depot in Gasconade city, or near that point — how far east from where a man was on the track could he have been seen by anyone up in the cab of an engine?
“Objected to as incompetent and immaterial, not tending to prove any issue in the case. Furthermore, for reason that no witness has testified that deceased was upon the crossing or near the crossing at the time he was struck by the train.
“Mr. Breuer: We can supply that.
“The Court: I think there is some evidence. Objection is overruled.
“Defendant excepts.
“A. Well, I do not know how far a man could see out of a cab of the engine, but out of a coach you could see a man.
“ (Objected to.) No ruling.
“Q. Go ahead. A. Well, I do not know how far you could see out of the cab of an engine.
“Q. How far could you see a man standing on the track, supposing him to be at or near the crossing — how far east from that can a man be seen standing on the track?
“Objected to as immaterial, not being an issue. (No ruling.)
“Q. Well, on the crossing east of the depot, in the middle of the track, how far east could he have been seen?
“Objected for the same reason given. Overruled Defendant excepts.
“A. You can see a man from the east — you first get a glimpse of him forty-four steps east end of sidetrack. You can get a plain view of him at east end of the side track.
“Q. How far is that? A. Two hundred and fifty-eight ordinary steps.
“Q. So then 258 steps east of the crossing — from that point a man is in plain view standing at the crossing? A. Yes, sir.
“(Witness excused.)
“Mr. Breuer: That is our case.”

I am instructed to say for the brethren that we are all of one accord in the opinion that the ruling below on the demurrer was well enough. This, because :

The case made either on the pleadings or facts does not turn on a violation of any statute relating to train signals at crossings, nor upon the violation of any town ordinance relating to such signals or to speed. Cases of that sort are therefore not in point.

The case may, however, proceed on the theory that no bell rang or whistle blew. Whether there was a duty due to decedent in that regard and whether such omissions make a case for the jury depends on other conditions presently considered.

One prong of the alternative allegation in the petition, to-wit, that defendant’s servants in charge of the train actually saw decedent in peril in time to save him, is not sustained by any proof, hence is out of the case.

There is left the other to be presently reckoned with, to-wit, that they might have seen him in danger if they had used due care in looking for him.

The allegation that the track was straight for a long distance east is not proven. True there is some faint testimony tending (or intended) to show how far from the east a man could be seen. But a fair review thereof demonstrates how lax and inconclusive it is. Let us attend to that phase of the case. Mumbrauer is the main witness to the point. In a hypothetical question a man is put on the track “at the crossing or near that point” and the witness is asked how far away he could be seen by any one in the “cab of the engine.” On objection made to that question as not within the issues and that there was no testimony decedent was at or near the crossing when struck, counsel stated, “We can supply that.” Thereat the court overruled the objection, accompanying his ruling with the remark, “I think there is some evidence.” He does not put it on the offer of counsel to supply. Now, we look in vain in the record for that evidence. So, we look in vain for any testimony supplying it as counsel proposed. Counsel do not .complain (nor indeed could they well do so) that they were lulled into false security by the remark of the trial judge that he thought there was such testimony. They knew as much about what evidence' they had put in as he did, and the testimony put in theretofore was that decedent was struck about one hundred feet west of the crossing. The witness finally answered he could not tell how far a man could be seen out of the “cab,” but proposed to tell how far he could be seen out of a “coach.” Then the following was propounded: “Well, on the crossing east of the depot in the middle of the track, how far east could he have been seen?’’ That question was challenged for reasons theretofore assigned against the first — one of them being, as said, that it did not tend to prove any issue in the case, another being that there was no testimony showing decedent was at the crossing. To this we may add there was no testimony that decedent was in the middle of the track. The objection was overruled, and we think erroneously. But that error was in favor of plaintiff and fills no office on plaintiff’s appeal. The witness went on to say, in substance, that a plain view could be had of such a man 258 steps east of the crossing. There are more reasons than one why this testimony has no probative force. To begin with them, the engineer and fireman were in the cab of the engine, not in a coach of the train. They were defendant’s servants at whose door negligence is laid. The witness had said in the same breath that he did not propose to testify to the distance a man in the cab conld see a man on the track— he conld only testify, he said, to an outlook from the coach. Why this was so we do not know, but the witness had his scruples and they are entitled to respect. Presumably, therefore, he was testifying about a man in the coach, and it is likely he had experimented from the coach. To continue with reasons, the decedent was not at the crossing when struck. To end with reasons, the testimony did not locate decedent in the middle of the track as the question did. If .testimony aliunde had shown the track to be perfectly straight for a great distance, as the petition alleges, then some of the given reasons would deserve little weight. But absent any proof on that score, as here, it is a live and very material matter to know where the man to be seen is located by the hypothetical question, whether at the crossing or one hundred feet west of it and whether in the middle of the track or on one side of it, or whether the outlook is from the cab or coach.

Plaintiff undertook, and was about, the serious business of charging the unfortunate death of her husband to the negligence of the engineer and thereby taking $10,000 from the money chest of defendant and transferring it (with a good title) to her own pocket. In so grave a matter as that, her proof must rise to the dignity of her case, so that if a jury find the issues for her the court could say there was testimony of substance on which the verdict could rest. Failing to show, as she did, that her husband was actually seen in peril it was at least her duty to show that by due care he could have been so seen in time to save him.

As we see it the case stands this way: The negligence of decedent is beyond any question. He voluntarily took a position of deadly peril, too near defendant’s track, with no regard whatever for his own safety. However tenderly his conduct he viewed, yet he belongs in the class of those of whom it is said they have eyes and see not and ears and hear not, though the unmistakable signs of danger and possible death were on every hand. Nothing in law can sponge away the legal effects of that fault and make his death actionable, except there he shown subsequent negligence of defendant’s servants in not preventing his death when with due care they could have seen him in time to have done so. Plaintiff under the humanity rule was obliged to make such a case, or be cast. She failed, as we have seen, and was rightly cast.

There is yet another view leading up to the same end. Assuming for the purposes of the case that the place decedent was struck was one where defendant may have been entitled to a clear track, but had no right to expect one because of the customary presence of persons there by its acquiescence (a theory scantily supported by the proof, but sufficiently so under the admissions of defendant’s brief), yet to hold defendant liable decedent must have been in a position of peril long enough or far enough away to allow the humanity doctrine play; for, if he was in a position of safety between the two tracks and appeared in a position of peril on the ends of the ties so shortly before the engine struck him that he could not be saved by warning or stopping, then it matters not that at last and too late he might have been seen in peril, by the engineer; for under the humanity rule his death is not actionable.

It is not necessary to cite authorities to sustain 'that proposition. Our reports abound with them. The very point was up and ruled in- the very last case handed down by this court on the law of negligence. [Dyrcz v. Railroad, 238 Mo. 33.]

Now, in this case there is not a particle of testimony (as we read the record) tending to show that decedent was in danger while the train ran any particular distance. The chief witness, befuddled with liquor, however leniently and tenderly his testimony be weighed, is unsatisfactory and does not make a case for plaintiff on that point.

We may pause with some little profit to moralize a bit on the testimony of Prank. What a man sees when half seas over (we speak with becoming reserve) is seen as through a glass, darkly — i. e., dimly, inexactly, uncertainly, as in a vision, a mist or a fog. There is a very old adage in a dead language, In vino veritas, but it is of doubtful or no use in the administration of justice as a precept in sifting and applying testimony. We opine, at all events, it should be construed strictly, that is to say by its letter. Observe, it does not say there is truth in all the possible variety of drinks sold in Chill’s saloon in Gasconade.

It seems from all the testimony, Frank’s included, that decedent was not on the track at all. It seems, too, there was a place of safety between the two tracks and Prank, the drunken man, put himself in that place of safety. It seems decedent at the last was walking on “the ends of the ties,” but how long and how far did he'walk on the ends of the ties? Where was he walking before that? There are no satisfactory answers to those questions in this record. How long were the ties? Did walking anywhere on the ends of the ties necessarily put him in danger ? There is no answer to those questions in'this record. Absent proof on these vital points, if we are to indulge in mere presumptions or speculations, we would presume he would walk in safety up to the time the actual proof showed he was not doing so; for the natural instinct to preserve life is so strong that he must be presumed to exercise due care to preserve it, until, as said, the proof steps in and rebuts the presumption and shows he did not. Clearly he was in danger at the instant he was struck by the cross-beam of the engine. So much the sequel shows. But to recover lie must, be shown to have been within the danger zone long enough and far enough to give defendant an opportunity, a last clear chance, to save his life. This is so, even if defendant’s servants were bound, as they were, to look out for him and are chargeable with seeing all that ordinary care in looking would discover. The case fatally breaks at this point as well as at the other.

The learned trial judge did right in taking the case from- the jury. The judgment is affirmed.

All concur, except Graves, P. J., who did not sit.


author: WOODSON, J.

text:
    LIZZIE VANTINE v. MARY BUTLER et al., Appellants.
    Division One,
    February 29, 1912.
    1. EVIDENCE: Pedigree: Declaration of Deceased Person. A reasonable weight of preliminary proof of relationship between, declarant, the decedent and the pretermitted claimant who claims to be the child of the decedent should be required before the declarations of a deceased declarant are received in evidence. But the degree of such proof must of necessity depend upon the facts and circumstances of each particular case, and no hard-and-fast rule can be enforced unbendingly in all cases.
    2. -: -: -: Preliminary Proof. The plaintiff sues as a pretermitted heir of John Butler, who died testate in 1906, and who drove his wife away from home about 1859, only a few days before she gave birth to a child, and plaintiff claims to be that child. Shortly after the separation Butler sent the three older children to New York, and joined the Union army and did not return to the community until 1865. During the first two or three years of his absence, the wife and the baby girl lived with neighbors in the neighborhood of her old home, but were a part of the time in the poorhouse, and in 1863 went to the county seat of the adjoining county, and were never again seen in the neighborhood. The wife’s name was Jane, she was about thirty years of age at the time Butler drove her away, having rather fair complexion, dark brown hair, blue eyes, dark eyelashes, medium height, and inclined to be fleshy, and prior to the separation one of her arms had been seriously burned and permanently disfigured. In the month of October, 1863, a woman about thirty-five years of age came from the direction of the county seat, to which Jane Butler had gone, to a camp of Union soldiers, bringing with her a child about four years old, remained in the camp over, night, and the child was sent, by the hack driver, to another county seat, and there left at the home of one Wetmore, and was seen there by soldiers in the month of November. After-living with Wetmore and his wife six or seven months, she was adopted by them and lived with them until she married. Shortly after the child was turned over to them, the same woman who had come with her to the armv camp appeared in the neighborhood of the Wetmores, and was known there as Jane Butler for a year or more. She had a burnt arm, blue eyes, dark eyebrows and dark hair, and was of rather dark complexion, medium height and “chubby.” She was nervous, excitable, sad and somber, and of a roving disposition, all of which characterized Jane Butler. Jane Butler was a Catholic and sympathized with the Union cause; this woman was a Catholic and sympathized with the Union cause, and objected to Mrs. Wetmore rearing the child because she was not a Catholic and did not sympathize with the Union cause, and called upon the Union soldiers for assistance in procuring custody of the child, but the trouble, which at first assumed an ugly aspect, was compromised, and Mrs. Wetmore gave her a photograph of the child, and she went away and was never afterwards heard of, except, in a general way, it was heard that she had died. John Butler, after his return to his farm in 1865, frequently spoke of the child and expressed to the neighbors a desire to locate her, and never questioned her legitimacy, but as a rule was silent and reticent about his wife and the child. He married again, had several children, and by his will gave his property to his last wife and her children. Held, that there was abundant preliminary proof of the relationship to authorize the admission in evidence of the declaration of the woman who appeared at the Wetmores, that she was the wife of John Butler, that her name was Jane Butler, that the child was hers, that the child’s name was Lizzie, that she had first named her Caledonia hut after leaving ’ the old neighborhood had changed her name to Lizzie, that John Butler was the father of the child, and that she had given birth to his three older children, one of whom was named Annie Butler.
    Appeal from Boone Circuit Court. — Hon. Nick M. Bradley, Special Judge.
    Afbirmbd.

      Whitecotton é Wight for appellants.
    (1) The court committed error in admitting the testimony of Mrs. Mills as to the identity of Jane Butler by Jane Butler’s own declarations with no other proof, and also as to her .relation to John Butler for the same reason. The same is true as to the testimony of Robert Farthing. 1 Wharton on Evidence, p. 209-, Greenleaf on Evidence (15 Ed.) sec. 207; 18 Am. & Eng. Ency. Law, 257, 263; 22 Am. & Eng. Ency. Law (2 Ed.), 257, 263; Elliott on Evidence, sec. 380, 381; Wigmore on Evidence, sec. 1490'; 16 Cyc. 1229; Kennedy’s Trial Evidence, p. 22; 2 Jones on Evidence, p. 712. (2) There being no competent proof whatever as to the identity of the plaintiff or that she was an heir of John Butler, the court clearly erred in its finding, judgment and decree. Schmuding v. Ewing, 57 Mo. 79; Klostermon v. Koge, 39 Mo. App. 60; Shumate v. Snyder, 140 Mo. 77.

      Gillespy & Conley for respondents.
    (1). The modern rule and the rule of the best considered cases and text-writers as to the qualification of the declarant is that he must be related to the person by blood or marriage, as to whose pedigree his declarations are offered; that he may be related to the plaintiff, in which case his declaration tends to prove the pedigree of the plaintiff, or to the deceased in which ease his declarations tend to prove the pedigree of the deceased. Wigmore on Evidence, sec. 1491; In re Hartman’s Estate, 107 Pac. (Cal.), 105; In re Clark’s Estate, 110 Pac. (Cal.), 828; Overby v. Johnston, 94 S. W. (Tex.), 131; Fowler v. Simpson, 79 Tex. 614; Sitler v. Gehr, 105 Pa. 577; Smith v. Smith, 140 Wis. 599; Mann v. Kavanaugh, 110 Ky. 776. (2) Only slight evidence is necessary to prove the relationship. Fulkerson v. Holmes, 117 IT. S. 397; Vowles v. Young, 13 Ves. Jr. 147; Monkton v. Atty-Gen., 12 R. & M. 157; Young v. Shullenberg, 165 N. Y. 385: In re Robb, 37 S. C. 19; Brown v. Lazarus, 5 Tex. Civ. App. 81; Fowler v. Simpson, 79 Tex. 614; Louder v. Scbluter, 78 Tex. 105; 22 Am. & Eng. Ency. Law (2. Ed.), 644, and cases cited; Layton v. Kraft, 98 N. Y. Supp. 72. (3) The conduct, representations and declarations of a person whose identity is in question are competent if made ante litem motam. The declarations of a person under such circumstances as to his name, past history and family connections are not hearsay, but are admissible for the purpose of determining his identity. 3 'Wig-, more on Evidence, secs. 270-, 1791, 1494; 6 Ency. Evidence, 922, and cases cited; Howard v. Russell, 75 Tex. 171; McNeil v. O’Connor, 79 Tex. 227; Nehring v. McMurrain, 94 Tex. 45; 15 Am. & Eng. Ency.- Law (2 Ed.), 918; Mullery v. Hamilton, 71 Ga. 720; La Riviere v. La Riviere, 77 Mo. 51.2; Long v. McDow, 87 Mo. 197; State v. Elwood, 17 R. I. 763. (4) Whether the Jane Butler and Lizzie But-ler of Paris were the same persons as the Jane and Lizzie Butler of Boone county was purely a queston of establishing an identity. La Riviere v. La Riviere, 77 Mo. 512. And the declarations of Mrs. Butler were competent as evidence of her identity whether she is living or dead. Nehring v. McMurrain, 94 Tex. 45. (5) The statements- made by Mrs. Butler as to her name and the name by which she was known in Paris and the statements of witnesses that the child in Paris was called Lizzie Butler is not hearsay, but primary evidence. It is relied on as a source of knowledge. Willis v. Quimby, 31 N. H. 487; Harris v. Martin, 150 N. C. 367; Gillian v. State, 3 Tex. App. 134; Berniaud v. Bucher, 11 Pac. 802; 1 Wig-more, sec. 667. (6) “A name is a word by which a person or thing is denoted; the word or words by which an individual person or thing or class of persons or things is designated and distinguished from others.” Century Dictionary, “Name;” Roth v. Pallaehullo Club, 61 S. E. (S. C.) 78; People v. Freeman, 8 Cow. (N. T.) 106; Rich v. Mayer, 7 N. Y. Supp. 70; People v. Leong Quong, 60 Cal. 107. The designation by which one is distinctively known in the community. Laflin v. Steytler, 146 Pa. St. 434. The name is the very means by which persons in conversation are identified. (6) Identity of name is prima facie evidence of identity of persons. La Riviere v. La Riviere, 77 Mo. 514; Long v. McDow, 87 Mo. 202; State v. Moore, 61 Mo. 279; G-itt v. Watson, 18 Mo. 277; Hoyt v. Davis, 21 Mo. App. 239; Meyer v. Bank; 27 Ind. App. 354; People v. Seaman, 239 111. 611. (7) The declarations are admissible to prove not only matters of pedigree proper, such as relationship and descent, but also-collateral matters tending to prove the same and births, deaths and marriages. 22 Am. & Eng. Eney. Law (2 Ed.), 640; In re Imboden’s Estate, 111 Mo. App. 235; Topper v. Perry, 197 Mo. 531; Beckman v. Nacke, 56 Mo. 546.
   WOODSON, J.

Counsel for appellants make the following brief and clear statement of the issues, which I adopt as a partial statement of the case, viz.:

‘ ‘ This cause is in this court by appeal on the part of the defendants, Mary Butler, Louititia Phelan and Mary Butler, the younger, and Vincent D. Phelan, executors of the last will and testament of John Butler, deceased, defendants in the above entitled cause, from a decree and judgment of the circuit court of Boone county, Missouri, in favor of the plaintiff establishing her right as a pretermitted heir.
The petition is in ordinary form and alleges that John Butler died testate on October-, 1906, as to all his heirs except this plaintiff, and that by his last will and testament he devised to his present widow, Mary Butler, all his real estate to hold during her natural life, and after her death disposed of it in fee to his children and grandchildren as provided in said will, not mentioning the plaintiff in his will in any way; that said John Bntler possessed at the time of his death about two thousand acres of land and personal property of about ten thousand dollars; that plaintiff is an heir at law in said estates and entitled to a one-sixth undivided interest therein, both in the realty and the personalty thereof, after the marital rights of the widow have been assigned and set off to her; that said will of said John Butler, deceased, has been duly probated and that by the terms of said will Mary Butler and Vincent D. Phelan are named as executors and have duly qualified as such and taken possession of both the personal and real estate of the said deceased. Wherefore plaintiff prays that issues be framed to determine the facts aforesaid, and that she be adjudged a daughter and a lawful heir of said John Butler, and entitled to a one-sixth interest in his estate, both real and personal, and a- tenant in common with the defendants in all of said real estate and that an accounting be had between her and said executors, heirs and devisees, and for all such other and further relief as to the court may seem just in the premises.
“The petition in this case was filed on the 11th day of January, 1908. On June the first, 1908, these defendants filed an answer denying each and every allegation in said petition.
“The record discloses that the question of the heirship of the plaintiff was the only vital issue in con.trpversy between the parties to this proceeding.”

The evidence in the case is quite voluminous, some sixty witnesses testified in the case on behalf of the plaintiff, none for defendants, and their testimony covers over two hundred pages of closely printed matter. For that reason, it will be impractical to set out even a summary of the testimony of each. We will, however, state generally what the evidence tended to show, which is as follows:

John Butler, the alleged father of the plaintiff, died testate in Boone county, in the fall of 1906; owning about 1800 acres of land, described in tbe pleadings, and about $15,000 worth of personal property. The will was duly probated, and he devised the lands to his widow, Mary Butler, for life, with the remainder in specific portions to the other defendants.

John Butler and his first wife, Jane Butler, who it is claimed was the mother of the plaintiff, were Irish Catholics, who came from New York to this State about the year 1857. They then had two children, Harry and William.

Butler was a carpenter and lived at or near Sturgeon, in Boone county, until August, 1857, when he moved to a farm near there. On the 16th day of that month, a third child was born unto them, whom they named Annie Butler.

Some time later they moved to another farm nearby, where he resided until his death and where he accumulated Ms property. He farmed, engaged in the mercantile business and operated a grist and a sawmill.

He and his wife did not live happily together, but there is no suggestion that she was unfaithful to him. He was high tempered, exacting and dictatorial, believing that the wife is the servant of the husband, or at any rate, he acted on the theory that he had the right to inflict corporal punishment upon her whenever he saw fit to do so. In a fit of temper, about the year 1859, he beat her up badly, and drove her from home, she carrying the visible marks of Ms brutality with her. She was pregnant at- the time, and when driven from home, she started afoot to Sturgeon* some miles away, and was found by the wayside in a hazel thicket, about to be confined.

W. T. Mathis and others discovered her, and carried her to a. new hotel Mathis was building in Sturgeon. He put up a bed for her and placed her upon it, whereat, the first night thereafter, she gave birth to a baby girl, claimed to be the plaintiff in this case. She remained there only three or four days until she could walk, when she took the child back to the neighborhood of the home from which she had been driven. The exact date of the birth is not stated, except it was “in plum or hazelnut time,” which of course was in midsummer or early fall.

Shortly after the separation, Butler sent the three older children back to New York, and he joined the Union' army at the outbreak of the war, and served throughout that entire period.

He never returned to Missouri until 1865, when he 'came'back to his old home, near Sturgeon.

During the first two or three years of Butler’s absence, his wife and child, according to the testimony of many witnesses, lived with various neighbors near her old home, working when she could, but depending largely upon charity; at one time she lived in the county poor house, and subsequently she went to Columbia, Missouri, and worked there for a while, and in 1862 she returned to Sturgeon, where she worked for John Monihan and others.

In 1863, she and her baby left Sturgeon and went to Mexico, Missouri, some fifteen or twenty miles east. That whs the last time they were éver seen in Boone county.

Butler never questioned the legitimacy of ' the child, but frequently after his return from the war, and after her departure from the country, he spoke of the child and upon several .occasions expressed to the neighbors a desire to locate her; but as a rule he.was very reticeflt about his wife and this child.

'Annie Butler, a daughter of the deceased, John Butler, knew she had a sister, and some two or three months prior to her marriage she tol'd the witness, W. T. Mathis, in the presence of Laura Hawkins, a neighbor girl, that she had a sister living in Monroe county, near Paris.

The following facts are practically undisputed, 'viz.:

Mrs. Butler’s given name was Jane, and her maiden name was Jane Gorden. At the date of the separation she was about thirty years of age, of rather fair complexion, dark brown hair, blue eyes, dark eyelashes, medium height and inclined to be fleshy.

Mrs. Butler was at times intemperate, and prior to the separation, she became intoxicated, fell in an open fire and burnt one of her arms very seriously, resulting in a permanent disfigurement.

The child was first called Caledonia by her mother, but prior to leaving Boone county she changed her name and called her Lizzie.

The first thing heard of Mrs. Butler and the child after they left Sturgeon for Mexico, was in the month of October, 1863. One evening in that month, a woman with a child came from the direction of Mexico, on a foraging wagon of a company of Union soldiers bivouacked on the highway leading from Mexico to Paris. Some of those soldiers testified that the child was four or five years old, with dark hair.

They remained in the camp over night, and in the morning Colonel Forbes, commander of the company, turned the child over to Dan Wyman, who was running ' a hack’ from Mexico to Paris. The latter departed with the child in the hack, for Paris.

The soldiers subsequently, in November, saw the child in Paris, and still later they saw her there, at the home of Mr. Wetmore. After living with the latter six or seven months, Mr. and Mrs. Wetmore adopted the child and reared and educated her, where .she lived as a daughter until she was married.

Shortly after the child arrived at Wyman’s, this same woman appeared at Paris, who had. a badly burned arm. She said .her name was Jane Butler, and that the child was hers, and its name was lizzie. .

Each of them were known in that community by their respective names.

Mrs. Butler stated to various persons in and about Paris that she was the wife of John Butler of Boone county, and that he was the father of the child; also that she had by him three other children living’ in Boone county.

There was some evidence which also tended to show that the child was the daughter of Jane Borden, the maiden name of Mrs. Butler.

This woman who claimed to be Mrs. Butler sympathized with the Union cause, and was a Catholic, and objected to Mrs. Wetmore raising the child, because she was not a Catholic, and did not sympathize with the Union cause.

When Mrs. Wetmore refused to give up the child, the mother called upon the Union soldiers for assistance in procuring its custody. This trouble, which assumed an ugly form at first, was however, compromised, and Mrs.' Wetmore gave the mother a photograph of the child, and she left Paris, and has never been heard of since, except, in a general way, that she had long since died.

John Butler subsequently remarried, and he and that wife separated, and he again married.

There are some additional detail facts which will be noticed in the opinion.

The court found the issues for the plaintiff, and rendered judgment accordingly.

In due time, and in proper form, some of the defendants appealed to this court.

I. The sole ground assigned, by counsel for appellants, for a reversal of the judgment is thus stated: ‘ ‘ The court eomitted error in admitting the testimony of certain witnesses as to the identity of Jane Butler by Jane Butler’s own declaration with no other proof, and also as to her relation to John Butler for the same reason.”

“The fact of the relationship of the declarant must he established by evidence other than her own declaration before the declaration became admissible, ’ ’ or to pnt it another way, “Not only is it necessary, in order that the declaration of a person afterwards deceased should be admissible in cases of pedigree, that the declarant should have been related to the family in question or connected with the same by marriage, but this relationship must be established by some proof, other than the declaration itself.” Or .further, the rules of evidence governing statements of this jrind are:

“1. The statement must be made ante litem motam.
“2. The declarant must be dead.
“3. A prior condition to both of these is, that it should be proved by some source of evidence independent of the statement itself, that the person making the statement is related to the family of which she speaks.”

In support of that proposition, we are cited to the following authorities: 1 Wharton on Evidence, p. 209; Elliott on Evidence, sec. 380 and 381; Wigmore on Evidence, sec. 1490; 16 Cyc. 1229; Kennedy’s Trial Evidence, p. 22; 2 Jones on Evidence, p. 712.

In brief, the position, of counsel for appellant is this: That there is no evidence whatever preserved in this record, which shows or warranted the .trial court in finding that the woman and child who appeared in Paris, in October, 1863, and known as Jane Butler and Lizzie Butler, were the wife and child of John Butler, late of Sturgeon, Boone county, Missouri, or that Jane and Lizzie were their true names, save and except the declarations of the former, to the effect that such were their names, and that they bore those relations to him.

Under the authorities cited, counsel insist that those declarations were inadmissible in evidence for the reasons previously stated; and that they should be stricken ont by this court, the'judgment reversed and the bill dismissed, for the reason that when so stricken out, there would remain no sufficient evidence to support the findings of the court.

The clearest and soundest statement of the rule governing the admission of declarations of persons as to pedigree and relationship, is stated in 16 Gyc. 1229, as follows:

“Notwithstanding an early tendency to regard intimate acquaintance with the family as a sufficient basis for knowledge as to facts of pedigree, and so to receive the declarations of family physicians, intimate friends, persons living in the family, or servants and other persons having adequate knowledge of facts of family genealogy or opportunities for acquiring it, the rule is now settled that, both in cases of reputation and of direct statements, the only competent declarants are those related to the family; and that consequently the declarations as to pedigree made by intimate friends, neighbors, or even by persons living in the family, or by servants, however trustworthy or long employed in the family, are incompetent.
“A second condition of relevancy is that the declarant should be disinterested to the extent of having no motive which can fairly be assumed to be such as would induce him to state the fact otherwise than as he understood it. The statement therefore must be shown to have been made mte litem motam; a,fortiori, before commencement of a suit involving the issue to which the declaration relates. It is not material, however, that a controversy has arisen regarding a cognate matter, unless indeed it clearly foreshadows one bn the precise subject-matter of the declaration; that a controversy, since entirely abated; once existed; or that a state of affairs is known to exist ont of which a controversy may at any time arise. On the other hand, the declaration is inadmissible if a controversy in fact exists, although the declarant he ignorant of it, or it has not reached the stage of litigation. A declaration made expressly with a view to a probable future contest is admissible quantum valeat; but declarations made in the process of collecting evidence to substantiate the claim involved in a subsequent lis are incompetent.
“It is universally held that declarations in pedigree cases are not admissible unless the declarant is dead.”

Some of the States announce a more liberal rule; for instance the Court of Appeals of California, in the case of In re Clark’s Estate, 110 Pac. 828, held that the declarations of the deceased father of claimants to the estate of an intestate that the intestate was his sister, made in the lifetime of the intestate, were admissible Ayithout extrinsic preliminary proof of the relationship of the father to the intestate.

This same general principle seems to be supported by the following authorities: 2 Wigmore on Evidence, sec. 1491; In re Hartman’s Estate, 107 Pac. (Cal.) 105; Overby v. Johnston, 42 Tex Civ. 438; Fowler v. Simpson, 79 Tex. 614; Sitler v. Gehr, 105 Pa. 577; Smith v. Smith, 140 Wis. 599; Hubatka v. Meyerhofer, 79 N. J. L. 264; Mann v. Cavanaugh, 110 Ky. 776.

In our opinion, the former rule is the wiser and more sound of the two, for the reason that if the preliminary proof of relationship is- not required, great injustice might be done, or a gross fraud perpetrated by a designing person, by simply declaring that he or some member of his family was related to a deceased person, who has no opportunity to contradict the statement, or disprove the fact.

It should be borne in mind, that such evidence is purely hearsay, unsanctioned by any form of oath, therefore no punishment could' be inflicted upon the declarant, while living, for his prevarication, nor successfully combated in many cases after death. For this reason it seems to us, that a reasonable weight of preliminary proof of relationship should be required before receiving the declarations of such witnesses. In other words, all reasonable precautions should be used to protect the fountain source of such evidence, which at best is very unsatisfactory, from fraud and pollution. The degree of such proof must of necessity depend largely upon the facts and circumstances of each particular case, and no hard-and-fast or unbending iron rule can be laid down and enforced alike in all'cases.

The following cases will somewhat illustrate the degree of such proof that is required in a case: Fulkerson v. Holmes, 117 U. S. 389, l. c. 397; Vowles v. Young, 13 Ves. 147; Monkton v. Attorney-General, 2 Russ. & M. 157; Young v. Schullenberg, 165 N. Y. 385; In re Bobb’s Estate, 37 S. C. 19; Brown v. Lazarus, 5 Tex. Civ. 81; Fowler v. Simpson, supra; Louder v. Schluter, 78 Tex. 105, 22 Am. and Eng. Ency. Law (2 Ed.), 644 and cases cited; Layton v. Kraft, 98 N. Y. S. 72.

So considering this case under the rule of the law thus enunciated, were the declarations of Mrs. Jane Butler, regarding the relationship she and Lizzie Butler, the respondent in this case, bore to John Butler of Sturgeon, Missouri, admissible in evidence?

In our opinion, that question should be answered in the affirmative, for the reason that in our judgment this record abounds with such preliminary proof, and is ample to satisfy even a more stringent rule than that announced by -the authorities before mentioned.

Briefly stated, the proof is as follows (for convenience, we will use the name “Paris Butler” when referring to the Jane Butler who appeared in Paris with the child Lizzie in the fall of 1863):

Independent of the means by which the fact was brought about, Paris Butler was known for a year or more, up to her death, in and about Paris, as Jane Butler, presumably from ber declarations; that was-also the name of the wife of John Butler, who disappeared in 1863. ■

The latter.was about thirty years of age when she was driven from her home, and the former, according to the opinion of the witnesses, appeared to be about thirty-five when she appeared in Paris in the fall of 1863. Both had blue eyes, dark eyebrows, and dark hair. Jane Butler had rather a fair complexion, while Paris Butler was of rather a dark complexion (this, however, might be accounted for as suggested by counsel for respondent, by the fact that she was five or six years older, at the latter date, and may have been tanned by exposure during her wanderings).

Each of them were about the same height and weight, and both “chubby,” Paris Butler being probably a little heavier. Both were nervous, excitable, and of a roving disposition — more marked in Paris. Both were sad and somber in disposition. Each was poor, and had to toil with her hands for a living.

Jane Butler was at times addicted to drink. The record, as to Paris, in that regard is silent.

Both were Catholics and sympathized with the Union cause; this appears more from the conduct of Paris than from her words.

Jane Butler was the mother of four children, the youngest a girl named Lizzie, born in the fall of 1859, and had dark hair.

The last time Jane Butler and Lizzie, her daughter, were ever seen on this earth, so far as the evidence shows, was when they left Sturgeon for Mexico, in the year of 1863; and the first time Paris Butler and Lizzie, her daughter, were ever seen or heard of, on this earth, was when they mounted the foraging wagon of the Union soldiers, a few miles from Mexico, and rode thereon to the camp near Paris. The exact period which ’ expired between the time the former departed for Mexico and the time when the latter appeared at the camp, is not disclosed by the evidence, but it could not have exceeded a few months.

The latter child was four or five years of age when first seen at the camp, in October, 1863. Her hair was dark and here eyes were blue.,

Both women had a badly burnt arm, amounting to a disfigurement.

The husband of Jane Butler was a Catholic, and served in the Union army. The conduct of Paris Butler, emphasizing her words in her appeal to the soldiers for aid in recovering the custody of her child, tends to show that her husband was also a Union soldier and a Catholic in religion.

John Butler, the husband of Jane Butler, and father of Lizzie Butler, .knew that the two latter had disappeared from Boone county, and upon several occasions expressed a desire to find the latter. And Annie Butler, the daughter of Jane and John Butler, and sister of Lizzie Butler, knew that the two latter had disappeared, and she told Mr. Mathis and others that her sister Lizzie lived in Monroe county, near Paris.

"When we further consider the fact that Boone, Audrain and Monroe counties all adjoin each other, and were connected by railroads, with a somewhat sparce population, and where all must have had more or less acquaintance with each other, it seems to me as almost inconceivable that Jane Butler and her daughter Lizzie could all at once disappear from the face of the earth, while going from Sturgeon to Mexico; and that almost immediately thereafter, her daughter Lizzie could, unknown to the whole world, spring into existence a few miles north of Mexico, and both go to Paris, the former remaining there about a year, and the latter until she reached womanhood, without exciting a word of comment, or calling forth an investigation of any kind, except upon the reasonable theory that Jane Butler and her daughter Lizzie of Sturgeon, were none other than Jane Butler, whom we have been calling “Paris Butler,” and her daughter Lizzie.

Even in the absence of tbe declarations of Paris Butler, as to the relationship she and ber daughter bore to the deceased, John Butler, the evidence disclosed by this record is ample to establish the fact that Jane and Lizzie Butler of Sturgeon were the same persons as Jane and Lizzie Butler of Paris. And when we corroborate that evidence with the declarations of Paris Butler, then their identity is established almost beyond a reasonable doubt. No four persons could have so many qualities in common with each other.

Moreover, the same names, and ages, pedigrees and family history point with an unerring finger to the fact that they are the same persons.

In our opinion the evidence was ample to support the findings and judgment of the court.

We, therefore, affirm the judgment.

All concur.