Welch v. Worsley , 330 Ill. 172 ( 1928 )

Mr. Justice Farmer,

dissenting:

The decision of this case depends principally upon the facts. I have read all the evidence carefully and cannot agree with the opinion of the court. The crux of the case depends upon whether plaintiff in error was born on Wolfe Island in 1866 or in Chicago in 1869. Most of the witnesses were quite aged, as they necessarily must have been to testify to facts occurring so long ago. The evidence was highly conflicting. Many of the witnesses were either mistaken in their testimony or willfully testified falsely. If plaintiff in error was born on Wolfe Island in 1866 then she could not have been the daughter of Swigart; if she was born in Chicago in 1869 then she was the daughter of Swigart and the mother of plaintiff in error, who were living together as man and wife. The reliable evidence proving she was born in Chicago in 1869 convinces me of its truth. Swigart was not an admirable man in character and conduct. He drank intoxicating liquors to excess, was parsimonious and not very kind to plaintiff in error or her mother or the second wife he married. This, I think, reasonably explains certain discrepancies in the testimony relied on to prove plaintiff in error was born on Wolfe Island. In my opinion all the contradictions and discrepancies in the evidence are reasonably explained consistently with plaintiff in error’s claim to have been born in Chicago. If she was born in Chicago she was the daughter of Swigart by the woman with whom he was living as a wife, whom he claimed to be his wife and whom he buried as such.

There is considerable evidence in the record of defendants in error to which I cannot attach much weight. I have not the time or physical ability to go into it in detail. The trial court heard the evidence, saw the witnesses, 'and had a better opportunity to judge of the weight and credibility of their testimony than a reviewing court. The decree found that plaintiff in error was the daughter of Swigart, born in Chicago in 1869, and I am convinced that a reviewing court is not authorized to say that the decree was palpably contrary to the weight of the reliable testimony. In my opinion the judgment of the Appellate Court should be reversed and the decree of the circuit court affirmed.

Mr. Justice Thompson, also dissenting.