
    Edward A. Layton, Appellant, v. Elizabeth H. Kraft and Others, Respondents.
    First Department,
    March 16, 1906.
    Evidence — pedigree may,be proved by hearsay— rules as to the admission of oral and written declarations on questions of pedigree stated.
    Pedigree is the history of family descent which is transmitted from one generation to another hy both oral and written declarations; and unless proved by1 hearsay evidence hot competent in general issues, it cannot, in most instances, be proved at all.. Matters of pedigree consist of descent and relationship evidenced by the declarations as to- particular facts such as birthsj marriages and 'deaths. In such cases hearsay evidence -of declarations to persons, who from their situation were- likely to know the facts, -is- admissible when the person making the declaration is dead. , - - -
    But before these declarations can he received in evidence it must appear that the person making them was a member óf the. family whose descent is sought to be traced. Only slight proof of relationship will be required, since the relationship of the declarant with the family might be as difficult to pi-ove as the very fact in controversy. 1, .
    In tracing pedigree identity of name'raises a presumption of identity of person _ where there is similarity of residence or trade, or circumstances, or whore the name is an unusual one, and such identity of name being shown, the burden is upon the party denying the identity to show1 that the name relates tó a different person. , -
    Henee,, in an action for'partition where the plaintiff is seeking to show his relationship to a deceased owner of the property, and declarations, made by members' of the family with whom relationship is sought to be proved, are offered • in evidence, it is error to exclude evidence of marriages, deaths and burials of ‘. persons alleged to' have been the plaintiff’s ancestors, as shown by church records entered in books kept for that purpose.
    Such proof should not be-excluded merely because the handwriting of the person who made the entries is not proved, or because they were made by the clerk of the church and not.by the pastor himself, if such records' are ancient documents.
    As a general rule an ancient record- Of document which comes, from a custody which the court deems proper, and is itself free from any indication of fraud or invalidity, proves itself. , '
    It is also immaterial that names appearing in said records were spelled in different ways.
    Appeal by the plaintiff, Edward A. Layton, from a judgment of the Supreme Court in favor of the defendants, entered in the office' of the clerk of the county of Mew York on the 6th day of July, 1905, upon the decision of the court, rendered at the Mew York Special Term, dismissing the complaint, certain questions of fact having been submitted to a jury at the Mew York Trial Term, and a verdict in favor of the defendants' having been rendered by direction of the court, and also from an order entered in said clerk’s office on the 9th day of June, 1905, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Rastus S. Ransom, for the appellant.
    
      Morris A. Tyng, for the respondents.
   Houghton, J.:

Although Anna E. St. John left a will, it is conceded that she died intestate as to the real property described in the complaint. The action is in partition, the plaintiff allegihg that he and his sister, the defendant Kraft, are 'the only heirs at law of the deceased. The relationship claimed is, that the plaintiff’s grandmother was a sister of the mother of the deceased. The grandmother’s name was Maria Hyer, and she married Alexander Tulloch, and plaintiff asserts that the mother of the deceased was Hannah Eliza Hyer, who married Francis Bos, and that both were children of Daniel Hyer, who married Catherine Bokee.

The plaintiff was sworn as a witness in his own behalf, and testified that he was born in 1845, and that his mother, Jane.E., who had married his father, Edward C. Layton, died when he was fifteen years of age; that his grandmother, Maria Tulloch, died when lie was seventeen years of -age, and that his great-grandmother, Catherine Hyer, died when he was twenty-four years of age, and that during his boyhood they all constituted one family. Both the grandmother and the great-grandmother were then widows, the grandfather, Alexander Tulloch, and the great-grandfather, Daniel • Hyer, having died before plaintiff was born. As a boy plaintiff knew Anna E. St. John when her former husband, Charles E. Bin-ton, was living, and he testified that she visited his grandmother and great-grandmother, and was known as their niece. These facts were practically all the personal knowledge that the plaintiff had with respect to the identity of his ancestors. That his grandmother was married to Alexander Tulloch, and that her maiden name was Maria Hyer; 'and that his great-grandmother was married to Daniel Hyer, and that her ..maiden name was Catherine Bokee, and that the name of one of liis great-grandmother’s : children was Hannah Eliza, and that she married Francis Bos, and that their only child was the deceased, and that the 'other descendants of Daniel Hyer and his wife Catherine died in infancy'or without issue,-he learned only by the various declarations of his ancestors, which were, of course, hearsay.- All of the family lived in Brooklyn, and the plaintiff Ayas born there. ,

In order to meet the.rule requiring it to appear that the persons making the declarations were members of the family whose relationship was. sought to be proved, and to show that the deceased, Anna E, St. John, was a member of that family*, plaintiff produced the witness Emma L. J. Schoonmaker, who testified that she knew Mrs.. St. John, and lived in her father’s1 family; that her father’s name was Francis Bos; that she had heard Mrs. S.t. John speak of her mother’s mother, “ grandmother Hyer,” who was dead, and of her uncles and aunts on her mother’s side, the Tullochs and their .children, the Laytons, or Claytons, as the witness understood the name, and had heard her say that her mother died in her own infancy.

To further meet the rule, as to the declarations the- plaintiff offered in evidence certain letters and receipts addressed to and held by the Tulloch and Layton families, and inscriptions on tombstones, and also the record of baptisms of the Collegiate Reformed Church of the city of Hew York, showing that Maria, a child of Daniel Heyer and Catherine Bokee was born February 7 and baptized February 28, 1798, and that Hannah Eliza, a child of Daniel Heyer and Catherine Bohea, was born September 13 and baptized October 1.9, 18.01, and that other children of Dani'el Heyer, ór Hyer, and Catherine Bokee, or Bohea,-or Boolcee, or Boekee, were baptized at various-times in the years 1807 and 1809, and that Alexander, a child of Alexander Trulloch and .Maria Hyer, was born December 2 and baptized December 15,- 1819.

There was also offered in evidence the record of marriages of said church, shoAving that on March 10, 1819, Alexander Tulloch and Maria Heyer were' married, and that on May 24,. 1823, Francis Bos and Hannah Hyer were married, and the register of deaths and burials of said church showing that Hannah E. Boss was buried January 25, 1825.

The Collegiate Reformed Church, first established on Manhattan island in 1628, is a corporation and has several .congregations. The-records of marriages and births are furnished by the various pastors of the congregations to the clerk of the corporation, and the record is made by him in books kept for that purpose. -

There was no proof as to the handwriting of any of the entries offered in evidence or as to who was clerk of the church corporation at the time they were made, but they were produced as the records of the church by its clerk to whom they came from his predecessor in office. The trial court held that there was not sufficient proof of authenticity of these records to entitle them to be received in evidence. The court also held, that without them there was no independent proof that plaintiff’s ancestors were members of the family of Anna E. St. John, the deceased, sufficient to entitle declarations of deceased persons to be given in evidence, and on motion" struck them from the case and directed the jury upon the framed issues to find a verdict against the plaintiff.

We think the court erred in not receiving the records offered in evidence.

The issue presented Was one of pedigree simply. Pedigree is the history of family descent which is transmitted from one generation to another by both oral and written declarations, and unless proved by hearsay evidence not competent in general issues it cannot, in most instances, be proved at all. Matters 'of pedigree consist of descent and relationship evidenced by declarations of particular facts such as births, marriages and deaths.. In such cases hearsay evidence of declarations of persons who from their situation were likely to know, is admissible when the person making the declarations is dead. Before these declarations can be received in evidence, however, it must appear that the person making them was a member of the family whose descent is sought to be traced. Only slight proof of the relationship will be required, since the relationship of the declarant with the family might be as difficult to prove as the very fact in controversy. (Young v. Shulenberg, 165 N. Y. 388; Eisenlord v. Clum, 126 id. 563; Fulkerson v. Holmes, 117 U. S. 397.) Cases of pedigree are peculiar in that they depend almost exclusively upon presumption, wjiicli is a process of probable- reasoning from facts established or judicially noticed, and the weight to be given this character of evidence-depends upon the facts surround* . ing each particular case. Identity of name raises a presumption of identity of person where there is similarity of residence, or trade, or circumstances, or Where the name is an unusual one.. (Lawson Presump. Ev. [2d ed.] rule 57, p. 307.) Identity of name is prima facie evidence of identity of person. (Young v. Shulenberg, supra; Stebbins v. Duncan, 108 U. S. 32, 47; People v. Snyder, 41 N. Y. 397, 403; Hatcher v. Rocheleau, 18 id. 86; Mahaney v. Mutual Reserve Assn., 69 Hun, 12, 16; Trebilcox v. McAlpine, 46 id. 469, 473; Spotten v. Keeler, 22 Abb. N. C. 105.) In a case of identity of name, the presumption arises from the improbability that different persons have the same name,, and, therefore, the onus is cast upon the party denying the identity to show that the ñamé relates to a different person. (People ex rel. Haines v. Smith, 45 N. Y. 772, 779.) Here misspelling of a name, where; there is, not such difference as to make it a distinct" name, does not affect the identity "of the person. (Jackson v. Boneham, 15 Johns. 226; Jackson v. Cody, 9 Cow. 140, 147.) From the nature of the dase- a. question of pedigree forms -an exception to -the general rule as to the proof of a particular fact by hearsay, reputation, or tradition; andj in addition to the declarations of deceased persons who were'likely'to know, unauthenticated facts and entries, made presumably with no.motive to deceive, such as an entry in a. family bible, an inscription oil a tombstone, a pedigree hung up in' a family mansion, and recitals in deeds, are competent evidence upon that issue. (Jackson v. Cooley, 8 Johns. 128, 131; Young v. Shulenberg, supra.)

■ notwithstanding .-the fact-that proof qf handwriting was not made, and that there was no evidence that the entries were in the handwriting of one who was then clerk of the Collegiate Heformed .Church of the city of Hew York, or that there was a rule of the church requiring such records "to be kept, we think the records "of marriages and baptisms and deaths kept by that church were competent evidence.- and’ should have been received upon the. trial'. ""

. These same records were received in evidence and held proper in Jackson v. King (5 Cow. 237), and were there considered of such a public nature that an exemplified copy might be used.

In Jacobi v. Order of Germania (73 Hun, 602) and in Hartshorn v. Metropolitan Life Ins. Co. (55 App. Div. 471) records of baptism kept by the pastor of a church were held competent for the purpose of showing, not when the person was born, but when he was baptized, which must have been after his birth. ■

' These authorities are said not to be applicable to the present question, because it was' there shown that the records were kept by the pastors of the churches, and in the present ease the record was kept only by the clerk. Nevertheless they are records of the church, and in its custody, preserved by it, and presumably made by some one in authority. The church, as a corporation, had several congregations in charge of different pastors. Each pastor might have kept a record of such marriage ceremonies as he performed, and such baptismal services as he held. If this had been done, doubtless no question 'would have been made;as to the competency of the record. We are of the opinion that that competency, with respect to pedigree, was not destroyed by the fact that one general record was kept by the clerk of the church corporation, of the acts of this character of the several pastors of the various congregations. There is no reason to doubt the truthfulness of the records or to assume that they were made from any improper motive.

Besides, they were ancient documents, and had been in existence for a century. They came from a custody which must be deemed proper and they proved themselves. The general rule is, that an ancient record or document, if it comes from a custody which the court deems proper, and is itself free from any indication of fraud or invalidity, proves itself. (Matter of Webster, 106 App. Div. 360.) Had the records been received in evidence they would have tended to-show that Anna E. St. John was a member of the family of plaintiff’s grandmother and great-grandmother, who were dead, "and the declarations of these persons ás to the relationship of Anna and her mother to the plaintiff’s grandmother would have been proper, as well as their declarations as- to the decease of other members of the family, without issue.

If the view that these records should have been received in evidence is correct, inasmuch as a new trial must be had, it is unnecessary to pass upon the ' question whether or not the plaintiff produced..other evidence sufficient to render these declarations competent, for the records can .then Be introduced, and they .will themselves furnish 'prima facie proof of common ancestry, sufficient to make' these declarations admissible.

Little significance, it seems to us, should be attached to the fact ' that Catherine Bokee’s name is spelled in different ways. Daniel Hyer or Heyter is the, father mentioned throughout the,record; and Catherine is the mother named. -That .a mistake was. made with respect to her maiden name, of course, raises a question of fact as to whether or not she is the same persp.n, but not so serious a one as to prevent the introduction of the record in evidence.

Our‘conclusion is that the judgment and order should be reversed, and a new trial granted, with costs ■ to the appellant to abide the event. , ' - "• •

O’Brien, B. J., Patterson, McLaughlin and Laughlín, JJ.j concurred, . - , .

Judgment and order reversed,, new.trial. ordered, costs to appellant to abide event. Order filed.  