
    STATE, Appellant, v. CONKLIN, et al (WINTER et al, Respondents).
    (168 N. W. 861).
    (File No. 4281.
    Opinion filed July 22, 1918).
    1. Trials — Escheat Case, Whether for Jury — Statute.
    Laws 19 09 Ch. 104, providing that the state may maintain suit or proceeding necessary to recover possession of property whenever title thereto shall fail through defect ■ of heirs and escheat to the state, does not contemplate trial of escheat causes before a -jury.
    2. Trials — Escheat Causes — Voluminous Evidence — Whether Issues for Jury.
    In a suit by the state to recover property alleged to have es-cheated for want of heirs of decedent, the evidence being very voluminous, held, that to submit the issues to a jury is impracticable; since no proper consideration of such testimony can be had until same has been reduced to writing, thus making possible a careful study and analysis thereof.
    3. Trials — Juror, Disclosure by of Pertinent Knowledge to E'ellow Jurors, Effect re Verdict.
    In a suit by state to enforce an escheat of property of a decedent, held, that; it appearing that a juror ■ possessed knowledge he should have disclosed in court, and which he apparently did disclose to his fellow jurors, such incompetency rendered finding of jury entitled to no weight or consideration.
    4! Heirships — Escheat Cause — Identity of Heirs — Dissimilarity of Persons, Evidence, Clear Prepondence as Determinative.
    Where, in a suit by a state to enforce an escheat of property for want of heirs of decedent owner thereof, the evidence showing hy clear prepdndence and hy high improbability that one known as George Winters, as the decedent, and one known as George Rodney Winter were not the same person, while showing to almost a certainty that one George Winter was one and the same person as George Rodney Winter; also hy clear prepondence that George Rodney Winter was horn 7 years before date of birth of said George Winters, that the two parties were entirely dissimilar in appearance, lived in widely separated parts of the United States, and that various other circumstances connected with their various lives were dissimilar; held, that they were different persons; and that he known as George Winters, and not George Rodney Winter, was the real decedent.
    5. Evidence — -Action for Escheat Cause — Identity of Persons — Personal Resemblance, Weight Of, As Evidence of Identity.
    In a suit ;by state to enforce escheat of property alleged to be that of an heirless decedent, held, in determining question of identity of alleged heirs, that while personal resemblance is a circumstance to he considered, yet every-day experience shows it should he given little weight.
    6. Evidence — Statements hy Decedent — Credibility, Conflicting Statements, How Far Grounds foi’ Rejecting All Statements— Rule.
    While decedent is shown to have made conflicting statements in his lifetime concerning many things; yet such conflict furnishes no ground for rejecting all statements claimed to have been made hy him; the contradictory statements should he weighed in the light of conceded facts considering persons to whom and circumstances under which same were said to have been made. So held, where decedent, when called upon to make a written record concerning his age and other material matters, made records inconsistent with the claim that he was George Rodney Winter; his identity as George Winters being held on appeal to have been sustained hy the evidence.
    Polley, J., dissenting.
    ■Appeal from 'Gircu.it Court, .Yankton County. Hon. Robert B. Tripp, Judge.
    Action) by the State of South Dakota, «gainst Raymond B. ■Conklin et al, for adjudication that property left by an intestate, esabeate'd’ to the 'sítate. From a judgment for defendants,’ and -from an order 'denying a anew trial, the state appeals.
    Reversed.
    
      Clarence C. Caldwell, Attorney General,Rdwin R, Winans, Assistant Attorney General, and A. L. Wyman, State’s Attorney, for Appellant.
    
      
      French, Orvis & French, and! Bogue & Bogue, for Respondents.
   WHITING, P. J.

In this action the state seeks an adjudication that the property left by one George Winters, who died intestate, has escheated to the state. The defendants daim said propently he did disclose to his fellow jurors — the finding of the jury is only issue is ;as to whether or not George Winters', who died) at Yankton, S. D., December 31, 1913, was one and the same person a9 George Rodney Winter, who wasi born in Massachusetts, January 21, 1833. T'he 'defendants clearly established their right to judgment iif these persons were one and the same. Trial' was 'had before the court and a jury. The jury found' in favor of 'defendants — that the said George Winters was one and the same person as the saiid George Rodney Winter.' The trial court adopted such finding. After the trial before the jury, and1 before1 the making of findings by the court, 'additional testimony was -received. From the judgment renderedl by the trial court, ,ands from an order denying a new trial, this appeali was- taken by the state.

We are of the opinion that the laiw of this, state (chapter 104, Daws 1909) does not contemplate the trial of escheat 'causes before a jury. Furthermore, we are of the opinion that, in a cause such as the one before us, where the testimony was very voluminous, to submit the issues to 'a jury is impracticable. No proper consideration- of such testimony can be 'had' until the same has been reduced to writing, thus making possible a careful study and analysis of same. We are also of the opinion that, for other reasons apparent in t'he record, including the fact that one lof the jurors was 'dearly 'incompetent — being possessed of knowledge which be should have 'disclosed in open court and which apparently he did didose to his fellow jurors — 'the finding of the jury is 'entitled toi no weight or consideration whatsoever.

There was received! the testimony of a -half-brother and of -a cousin of George Rodney Winter in relation, to the early life, and the physical' and other peculiarities of said George Rodney Winter ; the testimony of numerous persons in relation to the life, and’ the physical and other peculiarities of George Winters; and the testimony of numerous persons in relation toi 'one George Winter who, for many years, lived in, and who died in, the Black Hills of this state. The state contendls that this party who- died in the Black Hills, .anldi- mot Qeorge Winters who died at Yankton, was George Rodney Winter.

Each side'contends that the proof in this-case'amounts, to a demonstration in its, fayor. If such evidence does nipit amount to an absolute demonstration that George Winters, and George Rodney Winter Were not , the same person, such, evidlmece does show that it is highly improbable that they were the .same person, 'and does show that, it isi almost a certainty that George Winter, of the Black Hills, was one and ;th.e-same person as George Rodney Winter. If it was the estate of George Winter, who died in the Black Hills, that was in controversy,, defendants would clearly be entitled' to a judgment finding andl holding them to be entitled thereto.

■ No useful purpose could .be subserved'by our 'giving a 'complete statement., or even a synopsis! of the evidence in. this case. We have studied this' evidence with great care. We have considered the relations existing between the decedent and each of the various witnesses who knew him in Yankton counity; have cion-' sidered1 the opportunity of each for knowing the .facts, concerning which he or she testified; Where his statements have differed, have considered the probability as to which one the decedent would1 have made truthful statements, 'in relation to his past history; and ■where the testimony conflicts,.in relation thereto, have considered the probable chances of the witness., having a correct and definite knowledge as to physical peculiarities of decedent.

The -dear preponderance of the evidence establishes that George Rodney Winter was ¡born in Massachusetts', January 21, 1833 ; that he was a tall, rawboned man with large hand® and feet, standing át least six feet one inch ini height and 'wearing about a No. i'i shoe; that his mother 'died1 when he was but 2 years of age and his- father died in toe year 1877; that he ,was of supposedly English and Dutch parentage; that he had1 very little schooling, and', was -apparently well versed in, nothing but woodcraft 'and teaming; .that he teamed along the line of the Northern Pacific Railway ini Minnesota in the summer of 1871; that he teamed along the same railway between Moorhead, Minn., and Bismarck, Dakota Territory, in 1872 and 1873; that he was seen- in Moor-head July' 4, 1872, between there and Bismarck probably toe latter part of July, 1872, and the first of September, • 1872, and in Bismarck ;in- the summer, of 1873. The .dear, preponderance of the evidence also-establishes the fact that George 'Winters,-of Yank-ton, whose estate is; the subject of this action, -was born November 25-, 1840, of. S-co'toh parentage, either in- 'Scotland- or- in Ne'w York state; that both lof his- párente idled- when he was1, about. 3 years of age, they -dying within a- short -period the one from, the other; that he -grew up 'in New York state; that-he .was never as much as six -feet in height; that his hands- were not of -unusual size; that he did- not wear -a shoe larger than a Nloi. 9; that he taught school for 2 years when he was from' id to 18 years of age; that he was •a -carpenter.by trade; 'that 'he went from Ne'w1 Yionk to' California in-1858; that in the year 1871 he was in Chicago, and worked1 at his trade; that on August 29, 1872, he filed- omi fend-in-the bou,them part of this -state; that he-.-worked at his itralde in Yankton -county in 1872 and 1873.; and -that he remained continuously in Yankton, -county from- 1872 until he died, with- the exception of two or three short trips away, -one of which-was to the 'Black-Hillls- in I87.7- ’ ' - ' ' '' •

The respondents seem to’ make much of the fact that several of the witnesses testified1 as to noting, a resemblance between -decedent and one of the defendants' — a half-brother of George Rodhey Winter. It is -possible that the trial court also considered this evidence of great weight. While- it is- a -circumstance to be Considered1., yet- everyday experience teaches one that it .should- be given little weight — -w-e have- all known o'f near -relative's having little or n'o resemblance to one another, and have known -other persons 'who. bore a- striking resemblance- the- -one to the other and yet were absolutely unrelated.

While there are a great many things, revealed in the testimony showing conflicting -statements' made by said1 Geotge Winters, yet such .conflict furnishes no .grounds for discarding and1 rejecting all statements- claimed1 to have been made by him-. We can only weigh such Contradictory statements in. the light Of conceded facts, considering especially the persons to whom, and the circumstances under which the statements were said to have been made. ■ Upon every occasion'" when ■ decedent -was called uplon to make a written record as to his -age or as to any oth'fer matter that is! material to ■the. is's-ue in this case, such- written records are inconsistent with .the claim that he was George Rodhey Winter. _ This is especially true a-s to writings bearing-upon his. ancestry,.his age, the. date of his birth, and1 bis place of residence during ifche years 1872 and 1873.

The judgment amd1 order appealed from are reversed.

POLLBY, J.

(dissenting). After an examination tof the record in this -dase, I ¡believe that the findings of fact and judgment of the triali court are fully sustained by the evidence; and1 certainly there is -not such a preponderance of evidence against ithe findings that this court is 'warranted1 in reversing the judgment on the ground of the insufficiency of the evidence.  