IN BE :MATTHIAS' ESTATE.
In re MATTHIAS' ESTATE. GRAHAM v. MATTHIAS et aI. (CIrcuit Court, D. Washington, N. D. August 31, 1894.) 1.
DESCENT AND DISTRIBUTION-ILLEGITIMATE CHILDREN FA'l'HER. INHERITANCE FROM
section 2, and "all children born of persons living and cohabiting together, as. man and wife, and all children born out of wedlock whose parents shall intermarry, shall be legitimate," the child of a man and woman who lived and kept house together as man and wife Inherits frolll the father though he and the mother never Intermarried.
SAME-PARENTAOE-SUFFICIENCY OF EVIDENCE.
§ 3, which provides that all children born of marriages declared void by
Under "An act In relation to marriage" (Laws Wash. T.1854, p. 404;).
In an action by G. to establish her right as the child and heir of M., deceased, who was a prominent citizen of a small town where G. was born, ten witnesses testified positively that for three or four years, during which time G. was born, her mother and M. lived together as husband and wife. while seven witnesses, all well acquainted with 11'£., never saw Go's mother at Mo's house, nor heard that she lived there. Held, that the evidence showed that. Go's father and mother lived together as husband and wife. and that G. was hIs heir, and entitled to his estate as against collateral heh·s.
This is a proceeding by Rebecca Lena Graham to establish her right as a cbild and heir at law of Franklin Matthias, deceased, and to receive. from his administrator the property in his hand's for distribution, as against C. ¥atthias and others, his collateral heirs. ' . Arthur, Lindsay & King and & Ellsworth, for claimant. Lichtenberg, Shepard, Lyon & Denny, for defendants. HANFORD, District Judge (orally). This case involves a con· test on the part of Rebecca Lena Graham in which she asserts, against the persons named as defendants, her right as an heir at law of Franklin Matthias, deceased, to receive from tbe ad· ministrator of his estate the residue remaining after the pay:rnent of costs and expenses of administrati10n and all indebtedness. She claims to be a daughter and only child of Franklin Matthias. The other parties to the suit, who claim to be the lawful heirs, are collateral heirs; and no one other than Mrs. Graham claims to be a lineal descendant. The questions in the case are whether Mrs. Graham is in fad the daughter ,of Franklin Matthias, whether she is his .legitimate daughter, and under the laws of this state entitled to inherit his property. A large number of witnesses have been called to tes· tify in support of Mrs. Graham's claim, and to dispute it. I find in the testimony a great deal that is mere surmise, a great deal of gossip, a great deal of rumor,and a great deal that I regard as fiction. Some of the witnesses are not very well informed; others are reckless. I, repudiate entirely all the testi· mony in regard to the marriage ceremony between Frank Matthias and Mrs. Graham's mother ever having taken place. I repUdiate
FEI)ER,6.L REPORl'ER,. vol.
as utterly false the testimony in regard to Mrs. Graham having been in lier infancy christened by the 'name of Rebecca Matthias, in the presence of prominent citizens. of Seattle. I repudiate as utterly false the testimony given in the. case in regard to the conduct of Capt Gansevoort, of the American man of war Decatur, at the time' of the 'battle with the hostile Indians at Seattle, in the year 1856.qapt. Gansevoort was a credit to the American navy, not only for his competency and ability as a commanding officer, but his 'coortesyand gentlemanly conduct on that occasion. He was athorough gentleman, and,.l\t the time when in this record his mime i is connected with vile con!luct, he was doing everything that generosity and courtesy would prompt a gentleman to do in protecting and rendering aid, assistance, and comfort to the wives and children of the earliest settlers of Seattle. This testimony is in unnecessarily, and 1 ,am not willing that it should go out asllistory, without receiving at least my condemnation. Now,; coming to the facts detailed in the evidence, Mrs. Graham herself has testified to the effect that, from what her mother told her and ,other reports, she regarded herself.as the daughter of Frank Mattbias. She has no recollection of ever having been in his house, or in his company, or of speaking to him. In her childhood she avoided;bim, because her mother taught her to fear him; and in her mature years she was too proud to make advances towards Mm. .He often seemed to be following ber, and, for a time 'after her first marriage, daily passed her dwelling house, and, if Mr little children were playing he would stop and observe them in an interested manner; but he never in a manly way sought her acquaintance. Her testimony cannot be regarded as tending to prove that her mlQther was married to Matthias, or that she ever lived with him as his wife, in the sense of dwelling in his house and performing the duties of .housekeeper, or that Matthias ever by any public act acknowledged her as his wife. Six witnesses (SamuelF. Coombs, D. B. Ward, Rev. Daniel Bagley, T. D. Hinckley, M. B. Maddocks, and E. A. Thorndike) gave testimony tending to prove that Matthias, for a time ·before and after the birth of the complainant, maintained relations of intimacy with her mother, who was an Illdian woman, named Peggy, and that the couple were reputed to be cohabiting together; but they all fail to testify positively and explicitly to the fact that Peggy did actually live with Matthias openly, ,or ever performed the duties of housekeeper for him. iThree Indians called as witnesses for the complainant, viz. William Rogers, Chief William, and Jake Foster, have testified that Peggy and Matthias were actually married, and that said marriage was,foJlowed by actual cohabitation. Foster claimed to have been present when. Matthias obtained the consent of the relatives of the bride,. and whellthey oonducted her to his house to be .married; andthatpll, the ne;,ctday he attended a feast whereby the marr:'iage, :was celebrated;. and that afterwards. he visited the m;arried lcouple.· at their house; and that they Ii ved together; and that, Wil\iJi' 110 livillg,. tAecorn.,pla;.nant was born. Rogers and Chief,
IN BE MATTHIAS' ESTATE.
William testify to the same facts, and also claim to have been present when the marriage ceremony was performed, which they describe in detail and with extravagant eloquence. According to their recital, the chiefs and relatives went in a procession to the shack in which Matthias was then living. Three chiefs, this same William being one of them, then required each of the contracting parties to repeat 12 times the vow to assume marriage relation with each other. According to William, the bride vowed in these words: "Yes, Frank Matthias is going to be my husband, and I shall stay with him until death parts us." These stories are transparent, and manifestly false. Ten ,other witnesses, viz. Frank Dolan, Ben Solomon, W. F. Haffner, Richard Jeffs, A. S. Pinkham, William Deshaw, D. H. Webster, T. O. Williams, H. A. Spithill, and Mrs. Blakely! all testify, positively, that for three or four years, during which time the complainant was born, Matthias and Peggy did live together as husband and wife. On the other band, seven witnesses for the defendants, viz. Hillory Butler, A. A. Denny, Dexter Horton, E. M. Smithers, W. H. Surber, Henry Van Asselt, and Mrs. Wyck,off, all of whom were well acquainted with Matthias, never saw Peggy at his house, nor heard that she lived there. Mr. Matthias being a prominent man in a small town, as Seattle was then, their testimony, although negative, is equal in power to positive testimony contradicting the statement that Peggy and Matthias lived together. From consideration of all the evidence, I am well convinced that Matthias and Peggy were never married. I am also convinced that Frank Matthias was the father of this complainant. To entitle her to inherit his estate, being his daughter, it is not absolutely necessary that there should be proof of a marriage between her parents. If they lived together as man and wife during the period of time within which she was born, their so living together would, for the purpose of determining the rights of their child, be equivalent to a marriage, under a statute of Washington territory, enacted at its first session. That is the third section of an act entitled "An act in relation to marriage" (Laws Wash. T. 1854, p. 404), which provides that "All children born of marriages declared void by the preceding section, and all children born of persons living and cobabiting together, as man and wife, and all children born out of wedlock whose parents shall intermarry, shall be legitimate." This statute is somewhat peculiar. It is made for the protection and benefit of children. Without attempting to legislate as to the status of the parents, or determining or fixing their rights as married people, it does give rights to the innocent offspring; and, having that object in view, effect should be given to it according to its spirit, because it is a just law. Where cbildren are born under such circumstances as to leave no just ground for doubting their parentage, and where there is no probability of injustice being done by imposing upon a man spurious offspring, it seems to me right that his children should inhelit his estate. This law provides not only for the children of void mar-
mages,; and children born. outofwedloek whose parents afterwardB ibut. provides specifically· forehildren of unmarried perand cohabit tog.ether aSInan and wife, and declares that!ililuIIh cb;ildren shall be legitimate. .Now, if the testimony of Ri'CharldiJeffs,. David H. Webster, and those other people to the actual that Peggy and Frank Matthias did live together as man and wife, and kept ,house together before and after the birth of this ·plaintiff, be truetthen, under that law, she is. entitled to all the rightlll of a legitimate child of Frank Matthias. Cope v. Cope,137:U.S. 682, 11 Sup.Ct. 222; The'qnestion which: 1 have to decide on this evidence is whethel' it is PllOVOO that FrallkMatthias and Peggy did so .live together. The testimony of Mr. Smithers and Mr..Butler and others, who were intimate: friends of Frank Matthias, that they did not ,know that to betll.e fad, is perhaps incQnsilitentwiththefact. It is hard to imagine that it could be so, and neighbors and friends of},Ir. Matthias: not know.it;.. but I cannot say that it is im.possible. He may have: .been. cunning/with them, and less guarded with others. These. other witnesses: 'who. testified positively to the' fact had equalmea.nsQf knowledge withithosewho deny it They had everY'.Qpportunity if it were so. They have no interest in thif)lcase to induce:them to testify falsely, and, unless Frank Matthias and Peggy lived,together,they: have willfully, and without any inducement or reason for it, testified to :that which is , absolutely untrue; and .(which they milst have known was untrue. Now, there are 10 of them, I find, who have withpartic'ularity and positiveness asserted .that upon different occasions they found this woman in Frank Matthias' house, dQing his housework; that he: recognized her as·hiswiOmanj..and made no concealment of it. I might· posaibly discredit the. testimony of some of. these witnesses,on tm ground that they are' not worthy of. belief; but it is xnatters a great deal to discredit the testimony of 10, includingxnen <of mature age and good repute. ldo not believe that Mr,f:!mitbers, ltIr..Van Asselt,and Mr. Horton. have made any misstatements, and I do not have: to find that they testified falsely in order .toftnd the facUn favol"of tbis complainllnt. It is hard to unde!'-"$tand .how they Could, have been deceived in that matter. Still, it iSPQssible that they migbt have been. MycoIl,clusion is that there fsa .fair preponderance 'of the evidence, in, favor of this complainant,' to the fllct that her mother and Frank MattMas lived together as man and wife before and after the complainant's birth;. and, Upon. that preponderance of evidence, she is entitled to ,a finding in 'hel' favor. The laws of this state in force at the time of death of Frank Matthias entitle this. complainant; asbi$ only lineal.descendoot, to receive his estate;· and I will decreetbftt she: ia lW entitled.
NORTHERN PA.C. R. CO. V. TEET.ER.
NORTHERN PAC. R. CO. v. TEETER.
(Circuit Court of Appeals, Eighth Circuit. . September 10, 1894.)
MASTER AND SERVANT JURY.
INJURIES TO RAILWAY BnAKEMA.'f -
Where a brakeman was injured while coupling cars by stepping into a hole covered with snow and slush, held, that it was the province of the jury, there being a contlict of evidence, to say whether the company had discharged its duty of keeping the track in reasonably safe condition, and, if not, whether its neglect was the proximate cause of the injury, unmixed with any negligence on the brakeman's part.
2. TRIAL-WITHDRAWING CASE FROM
When, by giving credit to plaintiff's evidence, and discrediting defendant's, plaintiff's case is made out, the court cannot withdraw the case from the jury.
The giving of an abstract instruction, which, in view of the state of the evidence and of other correct and applicable instructions, could not have misled the jury, is no ground for reversal. Sanborn, Circuit Judgp, dissenting, on the ground that the jury may have been misled, and that the presumption is that error produces prejudice.
In Error to the Circuit Court of the United States for the District of Minnesota. J. H. Mitchell, Jr. (Tilden R. Selmes, on the brief), for plaintiff in error. Clapp (Mr. McDonald and L. D. Barnard, on the brief), for defendant in error. Before CALDWELL, SANBORN, and THAYER, Circuit Judges. CALDWELL, Circuit Judge. This action was brought in the cir· cuit court of the United States for the district of Minnesota by the defendant in error, Eugene Teeter, against the plaintiff in error, the Northern Pacific Railroad Company, to recover for personal injuries received under the following circumstances: The defendant in error was in the service of the railroad company, as a brakeman on a freight train, from December 31, 1891, until March 9, 1892, on which last·named day he received the injury complained of, while in the act of coupling cars on the side track at Jewett's Mills, Wis. At the time the accident occurred, the track where it occurred was covered with a thick slush of snow, ice, and water, to the depth of one or two inches, which concealed from sight the condition of the track under it. At the moment of making the coupling, which was done at a proper place, and. in the usual and proper manner, the plaintiff was compelled to take a step forward, when his foot went through the slush, and down into a hole in the track from six to twelve inches in depth, which pitched hUn forward with so much force that, to save himself from falling between the cars and being run over by them, he threw his hands out to catch something to support himself, and one hand caught on the drawbar, and was on the instant crushed, as the cars "slacked back." He could not see the hole he stepped into on account of the slush, and did not know it