Shorten v. Judd ex rel. Runkle

The opinion of the court was delivered by Martin, C. J.:

I. Counsel for plaintiff in error contend that the district court had no jurisdiction of the subject of the action, and that relief should have been sought in the probate court by way of contribution, and sections 39, 58, 59, 60, 61 and 62 of chapter 117, General Statutes of1889, being an act relating to wills, are cited in support of this position. It is *our opinion, however, that where relief is sought only as to real estate, and no part thereof has been sold for the payment of debts, and no division has been made, an heir may have specific relief as to the property itself, and need not pursue the circuitous remedy of contribution in the probate court.

II. It is virtually conceded in the briefs of defendant in error John Judd that Sadie Runlde Mott was incompetent, under section 322 of the code, to testify as to the transaction or communication with William Judd relied on as proof of the marriage; but it is claimed that the error was cured by the renunciation made on her behalf. At the time of the renunciation, however, all claim had been withdrawn to the effect that the plaintiff below might recover as the illegitimate son of William Judd, and it was necessary to prove the marriage in order to give him any standing whatever in court. His mother had been made a defendant, but she was united in interest with the plaintiff, and might have been joined with him. In her answer she claimed a one-half interest in all the *47 property, and her testimony in support of the marriage was more in her own behalf than in support of the claim of her son. It would not do to allow her to experiment with the double claim in behalf of herself and her son until the close of the evidence, and then make her incompetent testimony competent for her son by withdrawing her own claim. On account of this error the judgment must be reversed; but, as Mrs. Mott has now disclaimed any interest, she will be a competent witness as to the alleged marriage on the next trial.

III. The plaintiff in error complained of the admission in evidence of certain statements and declarations of William Judd to Doctor Elder and others concerning his relations with Sadie Runkle, and tending to prove a common-law marriage and the paternity of her son. We hold, however, that the evidence was competent under the rule that allows the declarations of a deceased person to be given in evidence where the fact of relationship, descent, birth or marriage is in controversy, and the declarations concern his family affairs. ( Smith v. Brown, 8 Kan. 609 , 620 ; 1 Greenl. Ev. § 134; Betsinger v. Chapman, 88 N. Y. 487, 496, 499 ; Branch v. Manufacturing Co., 56 Fed. Rep. 708, 713.)

IV. Certain witnesses acquainted with William Judd in his lifetime, and who saw the little boy in court, were allowed to testify on the point of family resemblance between the two. In our opinion, this was not a proper subject of expert or opinion testimony, and it ought to have been excluded. (Keniston v. Rowe, 16 Me. 38, 40 ; Eddy v. Gray, 4 Allen, 435 , 438.)

V. A photograph of William Judd was admitted in evidence for the purpose of comparison of features *48 with the child in court. While in most cases evidence of family resemblance by view and comparison of the jury is of little value in proof of parentage, yet it has often been held admissible where the child has attained an age when its features have assumed some degree of maturity and permanency. Where the child is a young infant, it has been held best not to exhibit it to the jury. Much must be left to the discretion of the trial court, however, as to the proper age, and we would not feel warranted in a reversal of the judgment in this case on account of the child’s appearance before the jury. (The State v. Danforth, 48 Iowa, 43, 47 ; The State v. Smith, 54 id. 104 ; Gilmanton v. Ham, 38 N. H. 108, 112, 113.) And where the putative father is dead, and a photograph, proven to be a good likeness of him, is offered in evidence for the purpose of comparison with the child in court, we think it admissible. (2 Rice, Ev. § 435, et seq.; Udderzook v. Commonwealth, 76 Pa. St. 340, 352, 355 ; People v. Webster, 68 Hun, 11, 17 .)

The instructions given to the jury to aid in answering the two questions whether Sadie Mott, formerly Sadie Runkle, was the wife of William Judd at the time of his death, and whether John Judd was the son of William Judd, pretty fully covered the subject; but as to the alleged contract of marriage being executory and conditional, and not executed and absolute, see Carmichael v. The State, 12 Ohio St. 553 , 559, 560; and Port v. Port, 70 Ill. 485 , 488, 490.

We have purposely refrained from the expression of any opinion as to the sufficiency of the evidence to sustain the findings of the court and the jury that there was a marriage between William Judd and Sadie Runkle, for, as the case must go back for a new trial, the parties will have opportunity for the *49 introduction of any new evidence which may be disclosed to throw light upon the subject.

The judgment will be reversed, and the case remanded for a new trial.

Johnston, J., concurring. Allen, J., dissenting.