Dowell v. Thomas , 13 Pa. 41 ( 1850 )

The opinion of the court was delivered by

Bell, J.

It is conceded that Lewis vs. Gorman, 5 Barr 164, rules the ease in favor of the plaintiffs below, as next of kin of Peter Thomas, the last tenant; provided the case stated sufficiently ascertains that, by his death, a failure of the lineal and collateral kindred of his ancestor, Thomas Jones, has occurred.

The case states, “By the death of the said Peter Thomas, the lineal and collateral relations of the said Thomas Jones became extinct, so far as the parties hereto know.” Now the parties hereto are the parties litigant, whose respective rights hang upon this very fact; and it is therefore fair to presume they, and more especially the defendants, whose continued possession depends upon it, took some pains to inform themselves upon this subject. In considering the value of the admission made, we must therefore regard the respective parties in the light of witnesses, having knowledge of the family, from which the disputed estate is derived, and interested in ascertaining the truth. Suppose then, on the the trial of an issue directed to ascertain, whether, by the death of Peter Thomas, the kindred of Thomas Jones became extinct, such witnesses testified, from all they have heard and known, being conversant in the neighborhood, where the family resided, they believed the fact to be so; would not this be esteemed, at least prima facie evidence, sufficient to cast the burden of proof upon the antagonist party ? Most certainly it would. It is every day’s practice and experience to show, by such testimony, the extinction of kindred and the failure of issue. And it would be strange, indeed, if this were not permitted. Take this very case, by way of illustration; Thomas Jones, the prepositus, died in 1727, nearly a century and a quarter ago; he is known to have left to survive him but one son, Peter Jones, who died leaving but one daughter, Ann Jones, who in her turn, left but one son, Peter Thomas, the last owner, who died unmarried and childless, at the age of 83 years. Now it is out of the question, at this day, to procure witnesses who personally knew Thomas Jones, and therefore, from necessity, the parties interested are compelled to rely on the information of persons, who, acquainted with the family, never heard of other relations than those enumerated in the case stated. The result of that information is distinctly enough set out. If it be not for the purposes of this action, it is certainly sufficiently stated to work an escheat of the land, for our statute of descents would give it to the commonwealth, in default of “known heirs or kindred.” And the statute of escheats provides for cases where persons die seized, “without heirs or any known kindred.” So that, if the plaintiff in error be right, upon just such an admission as we have here, the estate might be escheated, as late of Thomas Jones, while the acknowledged next of kin of his descendant, Peter Thomas, stood by powerless, because they could not, after the lapse of a period whereof the memory of man runneth not to the contrary, expressly and distinctly prove the kindred of the acquirer of the property to be extinct. Such an absurdity, of itself, sufficiently disproves the soundness of the position assumed here by the plaintiff in error. But, I repeat, that in cases like this, it is always deemed sufficient to shew by witnesses likely to know, they believe a particular line or family to be exhausted, in order to shift the onus.

It was insisted on the argument that the plaintiff below should have instituted an inquiry in England, Scotland, Ireland or Wales, in one of which countries it is probable the family of Jones had its origin, and where, in all likelihood, relatives may yet be found. The record does not disclose whence the family originally came; and if it did, the possibility of discovering relatives in Europe after the lapse of probably two centuries’ sojourn in this country, is too remote to impose such a duty on the plaintiffs. If such an inquiry is to be made, it would rather seem to be incumbent on the defendants, (who shew no title,) under the prima facie case, established by their opponents.

We are satisfied enough is admitted to justify the judgment pronounced by the Court of Common Pleas; where, indeed, this point of evidence does not seem to have been made.

Judgment affirmed.