clarant was related to the family to which the | and a tenant in common with the defendants declaration related. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 1162; Dec. Dig. § 309.*] 2. EVIDENCE (§ 309*)-PEDIGREE-DECLARA TIONS OF PERSON SINCE DECEASED. In a proceeding to establish heirship, independent evidence that declarant, who disappeared in 1863, was testator's wife, and that plaintiff was her child, held sufficient to justify the admission of declarant's declarations to establish plaintiff's identity as testator's daughter and heir. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 1162; Dec. Dig. § 309.*] Appeal from Circuit Court, Boone County; Nick M. Bradley, Special Judge. Action by Lizzie Vantine, as a pretermitted heir, against Mary Butler and others, to recover an heir's share in the estate of her alleged father, John Butler. Judgment for plaintiff, and defendants appeal. Affirmed. 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 defendant, Mary Butler, Loutitia Phelan and Mary Butler, the young. er, 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, Mo., 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 Butler possessed at the time of his death about 2,000 acres of land and personal property of about $10,000; that said land is fully set out and described in the said petition; that plaintiff is an heir at law in said estates and entitled to a onesixth 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, On in all of said real estate and that an account- The evidence in the case is quite voluminous. Some 60 witnesses testified in the case on behalf of the plaintiff, none for defendants, and their testimony covers over 200 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 1,800 acres of land, described in the 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, whom 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 said 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 near by, where he resided until his death, and where he accumulated his property. He farmed, engaged in the mercantile business, and operated a grist and a saw mill. 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 his 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 he was building in Sturgeon. He put up a bed for her, and placed her upon it, whereat the first night For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes thereafter she gave birth to a baby girl was four or five years old with dark hair. claimed to be the plaintiff in this case. She They remained in the camp overnight, and 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. in the morning Col. 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 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 Gorden, 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 they separated, and he again married. There are some additional detail facts which will be noticed in the opinion. During the first two or three years of But-arm. ler'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 poorhouse, and subsequently she went to Columbia, Mo., and worked there for a while, and in 1862 she returned to Sturgeon, where she worked for John Moyhihan and others. In 1863 she and her baby left Sturgeon and went to Mexico, Mo., some 15 or 20 miles east. That was the last time they were ever 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 reticent 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 told 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 30 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 these soldiers testified that the child 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. Whitecotton & Wight, for appellants. Gillespy & Conley, for respondent. WOODSON, J. (after stating the facts as above). 1. The sole ground assigned by counsel for appellants for a reversal of the judgment is thus stated: "The court committed 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." [1] "The fact of the relationship of the declarant must be established by evidence other than her own declaration before the declaration became admissible." Or, to put it another way, "Not only is it necessary, | to be such as would induce him to state the in order that the declaration of a person fact otherwise than as he understood it. afterwards deceased should be admissible in The statement, therefore, must be shown to cases of pedigree, that the declarant should have been made ante litem motam; a fortihave been related to the family in question ori, before commencement of a suit involving or connected with the same by marriage, the issue to which the declaration relates. but this relationship must be established by It is not material, however, that a controsome proof other than the declaration itself." versy has arisen regarding a cognate matter, Or, further, the rules of evidence governing unless indeed it clearly foreshadows one on statements of this kind are: "(1) The state the precise subject-matter of the declaration; ment must be made ante litem motam. (2) that a controversy, since entirely abated, The declarant must be dead. (3) A prior once existed; or that a state of affairs is condition to both of these is, that it should known to exist out of which a controversy be proved by some source of evidence inde- may at any time arise. On the other hand, pendent of the statement itself, that the the declaration is inadmissible if a controperson making the statement is related to the versy in fact exists, although the declarant family of whom she speaks." In support of be ignorant of it, or it has not reached the that proposition, we are cited to the following stage of litigation. A declaration made exauthorities: 1 Wharton on Evidence, p. 209; pressly with a view to a probable future conElliott on Evidence, §§ 380, 381; Wigmore on test is admissible quantum valeat; but decEvidence, § 1490; 16 Cyc. p. 1229; Kennedy's larations made in the process of collecting Trial Evidence, p. 22; 2 Jones on Evidence, evidence to substantiate the claim involved p. 712. In brief, the position of counsel for in a subsequent lis are incompetent. It is appellant is this: That there is no evidence universally held that declarations in pedigree whatever preserved in this record which cases are not admissible unless the declarant shows or warranted the trial court in finding is dead." 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, Mo., 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. Some of the states announce a more liberal rule; for instance, the Court of Appeal of California in the case of In re Clark's Estate, 13 Cal. App. 786, 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 without extrinsic preliminary proof of the relaUnder the authorities cited, counsel insist tionship of the father to the intestate. This that those declarations were inadmissible in same general principle seems to be supported evidence for the reasons previously stated, by the following authorities: 2 Wigmore on and that they should be stricken out by this Evidence, § 1491; In re Hartman Estate, 157 court, the judgment reversed, and the bill Cal. 206, 107 Pac. 105, 21 Ann. Cas. 1302; dismissed, for the reason that, when so Overby v. Johnson, 42 Tex. Civ. App. 348, 94 stricken out, there would remain no sufficient S. W. 131; Fowler v. Simpson, 79 Tex. 614, evidence to support the findings of the court. 15 S. W. 682, 23 Am. St. Rep. 370; Sitler v. The clearest and soundest statement of the Gehr, 105 Pa. 577, 51 Am. Rep. 207; Smith rule governing the admission of declarations v. Smith, 140 Wis. 599, 123 N. W. 146; Huof persons as to pedigree and relationship is batka v. Meyerhofer, 79 N. J. Law, 264, 75 stated in 16 Cyc. p. 1229, as follows: "Not- Atl. 454; Mann v. Kavanaugh, 110 Ky. 776, withstanding an early tendency to regard 62 S. W. 854. In our opinion, the former intimate acquaintance with the family as a rule is the wiser and more sound of the two, sufficient basis for knowledge as to facts of for the reason that, if the preliminary proof pedigree, and so to receive the declarations of relationship is not required, great injusof family physicians, intimate friends, per- tice might be done, or a gross fraud perpesons living in the family, or servants and trated by a designing person, by simply other persons having adequate knowledge of declaring that he or some member of his facts of family genealogy or opportunities for family was related to a deceased person, who acquiring it, the rule is now settled that, has no opportunity to contradict the stateboth in cases of reputation and of direct ment, or disprove the fact. It should be statements, the only competent declarants borne in mind that such evidence is purely are those related to the family; and that hearsay, unsanctioned by any form of oath, consequently the declarations as to pedigree therefore no punishment could be inflicted made by intimate friends, neighbors, or even upon the declarant while living for his by persons living in the family, or by serv- prevarication, nor successfully combated in ants, however trustworthy or long employed many cases, after death. For this reason it in the family, are incompetent. A second seems to us that a reasonable weight of precondition of relevancy is that the declarant liminary proof of relationship should be reshould be disinterested to the extent of hav-quired before receiving the declarations of ing no motive which can fairly be assumed such witnesses. In other words, all reason able precautions should be used to protect that regard is silent. Both were Catholics 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, loc. cit. 397, 6 Sup. Ct. 780, 29 L. Ed. 915; Vowles v. Young, 13 Ves. Jr. 147; Monkton v. Atty. Gen., 12 Russ. & M. 157; Young v. Schullenburg, 165 N. Y. 385, 59 N. E. 135, 80 Am. St. Rep. 730; In re Robb's Estate, 37 S. C. 19, 16 S. E. 241; Brown v. Lazarus, 5 Tex. Civ. App. 81, 25 S. W. 71; Fowler v. Simpson, supra; Louder v. Schluter, 78 Tex. 105, 14 S. W. 205, 207; 22 Amer. & Ency. of Law (2d Ed.) 644, and cases cited; Layton v. Kraft, 111 App. Div. 842, 98 N. Y. Supp. 72. [2] 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, Mo., 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. 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 her 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 sparse 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 disap 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 her declarations; that was also the name of the wife of John Butler, who disappeared in 1863. The latter was about 30 years of age when she was driven from her home, and the former according to the opinion of the witnesses appeared to be about 35 when she appeared in Paris in the fall of 1863. Both had blue eyes, dark eye-pear from the face of the earth while going brows, and dark auburn 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 dur-womanhood, without exciting word of coming 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 sombre 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 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 ment, 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 the declarations of Paris Butler as to the relationship she and her 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 con cur. ORCHARD v. GLOBE PRINTING CO. (Supreme Court of Missouri, Division No. 1. Feb. 29, 1912.) 1. LIBEL AND SLANDER (§ 7*)-LIBELOUS AR TICLE. Independent of the question of a crime being charged, an article charging that plaintiff and other self-constituted leaders of a political party entered into a contract with low negroes, whereby they were to try, by way of petition, to get a pardon for a self-confessed negro thief, in return for said negroes supporting a candidate for the Legislature, and that they had filed the petition, which would be acted on after election, charges moral turpitude, and is within Rev. St. 1909, § 4818, declaring the malicious defamation of a person by a publication, tending to expose him to public hatred, contempt, or ridicule, or to deprive him of the benefits of public confidence and social intercourse, to be a libel. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 17-78; Dec. Dig. § 7.*] 2. LIBEL AND SLANDER (§ 15*)-LIBEL PER SE. An article may be libelous per se where, were it only spoken, it would not be slanderous per se. "Charge Deal to Get Black Vote. "H. and J. Lacks of Poplar Bluff Appeal "Poplar Bluff, Mo., November 7. "Dear Friend: Knowing that you are and always have been a Democrat, with the convictions of right and wrong, and also knowing that you have known us as men of the same convictions, we address you as our personal friend as holding these same views, and also as a straight foward (sic) Democrat. Our campaign this year has been fought in our state against boodle and boodleism, and we know that you want our county politics fought out on the same line. Now what we want to say to you is this: We want you to know that Ed. L. Abington, chairman of the Democratic county committee, and Geo. C. Orchard and others of the same class have gone into a contract, as admitted by them with the knowledge and consent and approval of Sam Phillips, Democratic candidate for representative, with the lower element of the negroes of Poplar Bluff, agreeing with the negroes that they (Abington, Orchard, Stanley, Phillips) will petition the Governor to pardon out of the penitentiary a negro convict who has, before two courts, pleaded that he was guilty of grand larceny, and who is now serving a term for that crime. The promise was made by Orchard, Abington, Phillips, and company to the negroes that Sam Phillips should, in return for this good work, get the negroes' influence and votes in this election. We got word of this basest of criminal boodleism and set out to find the real facts in the case, and upon the closest investigation we were horap-rified to find that the facts bear out the report as to the agreement and the persons implicated in it. We learned that the petition for the pardon had already been gotten up and signed and handed to the Governor, when he was here about a week or more ago, and that the Governor now has the petition, and that he would act upon it immediately after the election. When the leaders in this disreputable combine found that we had learned of their unlawful and unwholly (sic) agreement, they sent word to Henry Lacks by Bert Stanley, saying that Orchard had done all this, and that he did it to get the Republican (black, we suppose) votes. We know that Orchard was implicated al [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. § 1; Dec. Dig. § 15.*] Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge. Action by George C. Orchard against the Globe Printing Company. Demurrer was sustained to the petition, and plaintiff appeals. Reversed and remanded. Reed, Yates, Mastin & Harvey, for pellant. A. C. Clover, Ernest Green, and D. W. Hill, for respondent. LAMM, J. Libel in the Butler circuit court. Suit brought November 3, 1906. Plaintiff was cast on demurrer to his petition in 1908. The alleged libel lies in a circular, an appeal to their fellow Democrats of Butler county by Henry and John Lacks, published by defendant November 8, 1904, and which publication, prefixed by certain headnotes and explanation, was followed by a reference to political conditions in that county; the whole, as set forth in the petition, reading: For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |