Adams v. Edwards , 115 Pa. 211 ( 1887 )

Mr. Justice Paxson

delivered the opinion of the court, February 28th, 1887.

The first, second and sixth assignments of error may be considered together. The first alleges error in admitting in evidence the depositions of Mary Edwards and Elizabeth Davis; 'the second, that the court below erred in not striking out said depositions, and the sixth that the court erred in charging the jury in reference to said depositions as follows: “So far as they speak of relationship existing at the time the witnesses speak, they are evidence in connection with other testimony before you.”

The action was ejectment, and the depositions were offered to prove the relationship of the witnesses, who were the plaintiffs, to the person who died seized. Conceding that, under the Act of 1869, they were not competent witnesses'to prove any events occurring during the lifetime of Jane Kemp, the intestate, were they competent under the Act of 9th April, 1870? It was held, in Foster v. Colburn, 107 Penn., 305, in commenting upon Rothrock v. Gallaher, 91 Id., and Stebben v. Cotterel, 99 Id., 188, that “the expression, any fact existing after the death of the testator, must be understood with the qualification that, when the existing fact merely tends to prove by implication that the same or a similar state of facts existed prior to the death of the testator, the witness is competent; but, where it appears that the testimony necessarily relates to that which existed or took place in the testator’s lifetime, the witness is incompetent.” The depositions in question refer principally to marriage, birth and other matters which occurred in the lifetime of the testator. To such matters the charge of the learned judge was explicit. Pie said : “So far as these depositions speak of marriage and birth they are not evidence and you must disregard them. So far as they speak of relationship, existing at the time the witnesses speak, they are evidence in connection with other testimony before you.” There was other evidence upon this point. John Kemp, a witness called for the defendants, said: “I am a nephew of Joseph Kemp. Knew him and 1ns wife about twenty years. Went to their house about three or four times a month. Mrs. Kemp said she had a sister, Mary Edwards, an old bachelor brother, a son of Mrs. Edwards, in Australia, and two nieces, by the name of Lloyd, in Liverpool.” And upon cross examination : “The name of her brother was David Edwards. I heard he was dead. She said she had two nieces Ly a sister 'and their names were Lloyd.” This was defendant’s testimon)'-. Lydia Pendegrast, one of the defendants, deposed: “ I am related to Joseph' Kemp; am his niece. Jane Kemp, his wife, is dead. Her relations are the Edwards family. I cannot tell who they are and the number of them. They are the Hores.” Jane Kemp was the person who died seized, and it is her real estate which is the subject of the controversy.

We have here evidence, furnished bty the defendants themselves, of the relationship of the plaintiffs. There was no evidence whatever of any title in the defendants. They are in possession and rely wholly upon the weakness of the plaintiff's title.

Were the depositions of Mary Edwards and Elizabeth Davis competent to prove their relationship to Jane Kemp who died seized? They are both plaintiffs, and both swear to the relationship. As before stated, the court ruled out all they said as to births, marriages and matters occurring prior to the death of Jane Kemp, but allowed what they said as to the mere fact of their relationship to go to the jury. It is not pretended that the witnesses would have been competent prior to the Act of 1869, nor that they were made competent by that Act. If competent at all, it must be by virtue of the Act of 9th April, 1870, P. L., 44, which allows, in the enumerated cases, a party to the record to testify to “ matters occurring since the death of the person whose estate, through a legal representative, is á party to the record.” An examination-of the depositions shows that the witnesses testified to no matters occurring since the death of Jane Kemp. It is true, they both swore to their respective relationship to Jane Kemp. Surely, that fact did not occur since her death. It was an existing fact, and one which existed during the lifetime of Jane Kemp. Hence, when the witnesses prove a relationship existing after the death of Jane, they necessarily prove a fact existing prior to her death, and this is just what was ruled could not be done in Foster v. Collner, supra.

Nearly the whole of the depositions related to matters which the learned judge conceded to be incompetent, and which he instructed the jury to disregard. They were filled, as before stated, with' details of the alleged relationship, such as marriages, births, deaths, etc. The record does not show whether, all this was read to the jury, but it is fair to assume tliat it was, else the learned judge would not have instructed them to disregard it. If read to or by them, it might well have made a lodgment that the subsequent instruction would fail to efface.

The remaining assignments may be briefly disposed of. We cannot say it was error to admit the letter of attorney from Mary Edwards et al. to Edward F. Hoffman, who sues as their attorney in fact. It was a mistake to commence this suit in the name of the attorney in fact, but it was a technical mistake, amendable below, and here, if necessary. We presume the letter of attorney was offered to show authority to commence the suit. As, however, the letter is not given in the paper-book, we decline further comment.

We see no error in excluding the paper purporting to be an agreement of Mary Edwards. It is signed by no one but herself, and is, therefore, not an agreement in the ordinary sense of the word. As the declaration of one claiming title, it ought not to affect her. She merely consents to the distribution of the estate in a certain way, upon a condition therein expressed.

The two letters of Mary Edwards of April 13th and May 16th, 1883, are not before us. We cannot, therefore, judge of their competency.

Judgment reversed and a venire facias de novo awarded.