Covert v. Hertzog , 1846 Pa. LEXIS 193 ( 1846 )

Gibson, C. J.

Judgment on the demurrer was well given for the plaintiff, as it has already been solemnly decided, that the execution of a vendor’s contract of sale by his executors or administrators, does not bar his widow of her dower; but the hearsay evidence of her marriage was erroneously received. Such evidence is admissible in questions of pedigree depending on legitimacy; for it is often necessary in them to mount up to a remote period for evidence of marriage, and the traditions of the family, or the declarations Of deceased persons whose relation to the parties qualified them to speak with certainty, are frequently the best evidence of which the case is susceptible, and admissible by a species of necessity ; not so where one of the parties produces them as evidence of a comparatively recent marriage, which is as susceptible of the ordinary proof as any other fact of the same date. In the very case before us, there was abundance of such evidence by living witnesses, who proved cohabitation as man and wife, which, when not rebutted, is sufficient to establish the fact. But as it was not conclusive, it did not render the reception of the deceased uncle’s declaration harmless. Judgment reversed, and venire de novo awarded.