Morrill v. Foster , 33 N.H. 379 ( 1856 )

Bell, J.^*

The property of Joseph Hemphill was divided by a committee appointed by the court of probate, dower being assigned to the widow and the residue set off in shares to the children. They made a single report of their doings, which was accepted by a decree of the court. It became material to show where was the line of the land assigned to the widow for her dower, and the court held that the whole report might be read in evidence. It was objected that no more of the report should be read than had direct reference to the dower. The whole was properly admitted. The general rule is, that when copies of records are used as evidence, the entire record should be produced. This principle is distinctly laid down in Com. Dig., Evidence, A, 4. “ The whole record which concerns the matter in question should be produced and in 1 Greenl. Ev. 555, and 2 Phil. Ev. 138. The rule is laid down more fully in Woods v. Banks, 14 N. H. 109, where Parker, C. J., says : “ Copies of so much of the record as relates to the subject matter of the suit are allowed. See Packard v. Hill, 7 Cowen 434. But there should generally be an entire copy of the proceedings of a particular meeting, or any thing done and transacted at a particular time. Records are usually in parts, and there should be a copy of all the matter made up and attested as a record at any particular time, so that the jury may have the whole evidence, and the courts be enabled to give the right construction to what is done. But where what relates to the matter in question is a distinct and independent record, a copy of that is sufficient.” The same principle is also held in Whitehouse v. Bickford, 9 Foster 471.

So that the general rule may be stated to be, that extracts are not admisáble in evidence, unless it appears that the copy of the record, and, by parity of reason, of any other instrument, contains all that relates to the matter in question. The objection is not made on the ground that the part of the record objected to does not relate to the matter in controversy — that is, the location of the line of the dower — but because it does not relate to the dower estate. Ordinarily all parts of the same instrument are to be considered and construed together. Webster v. Atkinson, 4 N. H. 21; Shep. Touchstone 87; Clough v. Bowman, 15 N. H. 504. It could hardly be otherwise than that the report of a committee like this should refer to the same lines in more than one way, so that one part would throw light upon the other. Such seems to be the present case, and the ruling therefore proper.

II. If competent, the testimony of her niece, as to the time of the death of Mrs. Hemphill, should have been received, though its weight might not be great. While the general principle is admitted, that hearsay evidence is admissible to prove a pedigree, provided it is the declarations of deceased relatives, who have no interest to misrepresent. Waldron v. Tuttle, 4 N. H. 378. It is contended that the time of a death is not a question of pedigree. This is a question depending upon authority, and the language of the books must be deemed decisive on this point. “ The term pedigree embraces not only descent and relationship, but also the facts of birth, marriage and death, and the times when those events happened.” 1 Greenl. Ev., sec. 104. The same rule is laid down in 1 Ph. Ev. 213; Moncton v. Att. Gen., 2 Russ. & M. 161; Kidney v. Cockburn, 2 Russ. & M. 167; Herbert v. Tucknal, T. Ray. 84.

III. The evidence of David Kimball was properly rejected. He was in possession of the property, and his declarations, if against his interest at the time, were admissible, but they were incompetent if they were in favor of his interest. 4 N. H. 213 ; 15 N. H. 546, cited for defendant. Here the deceased had a fee in the south part, and a life estate in the rest, and his declarations tended to increase his estate in fee, and were, therefore, such as his interest might induce him to make, and therefore inadmissible. If it appeared that he had a title in fee alike in all parts of the property, in that which was the life estate by twenty years’ adverse possession, his interest would be neutralized, and his declarations competent, but the case finds that it did not appear that he had any but a life estate in the dower.

IY. The inventory of Martin’s estate was admitted, as tending to show that he had no interest in the estate, this land not being mentioned. This evidence was not conclusive, nor, perhaps, entitled to much weight. It is the admission of the executor, who is one of these petitioners, that he had no knowledge that the deceased had a title, because it was clearly his duty to cause an inventory to be taken of the real as well as of the personal estate. It is like an admission, verbally, by the petitioner at the same date, that he did not know that the deceased had any title. It was, therefore, properly admitted.

Y. To prove a conveyance from Betsey Kimball, testimony was offered that just before Wheeler conveyed the land to Thompson, Moses Kimball, her husband, started with a sleigh, saying he was going to Wheeler’s for a load of goods, and he presently returned with a load of goods, of about the value of his wife’s interest. Taken altogether, the testimony has no tendency to prove a deed by Betsey Kimball. It tends to prove a purchase of goods for cash, or on credit, or on some bargain, or exchange; but it tends to prove no one of these more than another. To give it any point it needs some circumstance to connect it with a conveyance, and there is nothing but the time, “just before the conveyance by Wheeler,” and the value, “ about the value of his wife’s interest in the land,” and these are entirely too slight. The declaration where he was going was inadmissible, for reasons stated in our former opinion, but it does not seem to be material.

VI. The conversation between Mrs. Kimball and Thompson was admissible to discredit Mrs. Kimball, because it was in some degree inconsistent with her testimony in the case. But it was contended that it was also competent to prove the facts stated and admitted by her. Generally the statements of a witness made out of court, proved for the purpose of contradicting him, are mere hearsay, and inadmissible for any other purpose. But it is said the declarations of this witness were evidence in chief, because, when made, they related to and substantially affected her own title, under which Morrill now claims. Both parties claim the land once owned by the witness — the defendant under a deed made in 1808, and supposed to be lost; the plaintiff under a deed dated in 1845. The declarations are alleged to be made in 1841. Mrs. Kimball had not been in actual possession in 1841. After the dower expired, in 1829, she had possession in law, if she had not made a conveyance in 1803; but if she had made such a deed, she had no possession whatever. Yet, as the declarations of the petitioner, though out of possession, are evidence against his title, so the declarations of his grantor, during the time she held the title now claimed under her, must be admitted. The rule is universal, that the admissions of the person under whom a party claims, made while he is alleged by such party to have held the title, is evidence against such party. 1 Greenl. Ev., sec. 189; 1 Cow. & Hill’s Notes to Ph. Ev. 265, note 194.

In the present case the petitioner Morrill claims under Mrs. Kimball’s deed of 1847. He alleges that her right accrued upon the death of her father, and that she remained the owner until this deed. Her declarations, made between the time her title accrued and the date of her deed to Morrill, are evidence against herself and all claiming under her. See Proprietors of Claremont v. Carlton, 2 N. H. 372; Pike v. Hayes, 14 N. H. 19; Smith v. Powers, 15 N. H. 563; Hobbs v. Cram, 2 Foster 130. We do not understand that this evidence can be reasonably objected to on the ground of any surprise or unfairness in the manner of its introduction.

VII. The charge of the court, as to the point of adverse possession, seems to us correct and proper, though its materiality is not very apparent, since all parties claimed under Joseph Hemp-hill, and his bare possession was seizin and title enough between them.

The rulings of the court are sustained, except the second and sixth ; but as these are material, there must be

A new trial.

* Pekley, C. J., and Powlek, J., having been of counsel, did not sit.