(148 N.E.) the mother acknowledged her as his own, de a common-law marriage without any license nials, if any, made by him at other times of and without any legal solemnization thereof, such acknowledgment, could not affect such but that in order to make such a marriage a acknowledgment if once made.

legal marriage, so as to legitimatize children, Appellant says each of these instructions is it must be entered into in good faith between erroneous because there was no evidence that the parties, and be accompanied by such he acknowledged appellee as his child at the cohabitation and circumstances as will show time he married her mother. Conceding that that the parties in good faith entered into there is no evidence that Eli Stern made such a marriage contract, and that such contract an acknowledgment at the time of the mar was not entered into for the purpose of veilriage the giving of these instructions would ing or concealing illicit intercourse. not be reversible error. There is some ques Appellant contends that this instruction tion under the evidence as to whether any | contradicts section 8373, Burns' 1914 (section marriage other than a common-law marriage 5330, R. S. 1881), which provides that: ever took place between Eli Stern and Mary Fry. If they were married only under the

"No marriage shall be void or voidable for common law, it would be rather difficult to by law, if either of the parties thereto believ

want of a license or other formality required tell just when that marriage actually took ed it to be a legal marriage at that time." place.

[3] A further objection made to instruction No. 9 is that it tells the jury it had the right

The intent of the Legislature as expressed to consider all the evidence on the subject in in this section was to make it clear that the determining whether he ever acknowledged failure to procure a license, to have the marher as his child. The contention is that the riage formally solemnizod, or the failure to court should have told the jury that it must take any other formal step required by the consider all the acts and declarations of Eli act of which this section is a part, would not Stern relating to this subject. We do not render a statutory marriage void or voidable, think the instruction objectionable, in view if either of the parties thereto at the time of the fact that the court did in other in- of such marriage believed it to be a lega) structions specifically tell the jury that it marriage. The purpose in view was not to must consider all the acts and declarations change or affect the law as to what was necof Eli Stern on the question of acknowledg- essary to constitute a common-law marriage, ment.

or to provide a rule of evidence as to what [4] The next contention is that instruction was or was not necessary to be proved to esNo, 11 is erroneous, because it told the jury it tablish a common-law marriage. The "othhad the right to take into consideration, in de- er formality” mentioned in the statute contermining whether appellee was illegitimate, cerning a statutory marriage similar to that all the statements and declarations of Eli found in section 8362, Burns' 1914 (section Stern concerning appellee and his relations 5327, R. S. 1881), which requires the parties with her mother. It is argued that this was er- to procure a license. We fail to find any roneous, because it authorized the jury to prejudicial error in the giving of this intake into consideration statements made by struction. Mr. Stern after the death of his wife, that

[6] Appellant contends that instruction No. such statements were not admissible on the 29 told the jury that in determining the quessubject of appellee's legitimacy, because the tion of whether appellee was the illegitimate family relationship did not exist between him child of Mary Fry, and whether Eli Stern and the mother after her death, and that his subsequently married the mother and acstatements after the mother's death were no knowledged her as his child, it had the right more admissible on this question than if he to take into consideration the statements of had never married the mother.

deceased members of the family related by The statute on this subject (section 3001, blood or marriage to Eli Stern of and perBurns' 1914; section 2476, R. S. 1881), pro- taining to said marriage, which had been in

troduced in evidence. The contention of ap "If a man shall marry the mother of an il- pellant that this instruction authorized the legitimate child, and acknowledge it as his own, Jury to take into consideration the statesuch child shall be deemed legitimate.”

ments of deceased members of the family, of

and concerning said marriage and birth, in The statute does not expressly require that determining the question of acknowledgment, such acknowledgment shall be made after is not well taken. The consideration of such the marriage and before its severance by statements was limited to the questions of death or otherwise. Whether such acknowl- marriage and birth. Statements of such peredgment can be made before as well as at sons as to whether Eli Stern had or had not er, after the marriage is an open question in acknowledged appellee as his child were not this state. See Haddon v. Crawford (1912) referred to in this instruction. 49 Ind. App. 551, 560, 97 N. E. 811,

Appellant also contends that the court [5] By instruction No. 26, the Jury was told erred in giving other instructions; but after that persons may engage in what is known as a careful examination of all the instructions

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given we find no reversible error in any of , and the court, in disposing of this objection, them.

said : [7,8] Appellant testified as a witness in her

If the question is not justly subown behalf as to certain matters which oc- ject to the objection stated, and we see no othcurred after the death of the father. One ! er even plausible ground of objection, the court William Green had testified as a witness for erred in refusing to permit it to be answered.” appellee, and on his cross-examination he was asked whether, prior to the death of Eli The question indicates that the witness Stern, he had not made a certain statement. was a child of the deceased ancestor, through This statement, if made, would have had the which the appellant and appellee were claimeffect of impeaching the witness and weak- ing. We have taken occasion to examine the ening the testimony he had given. The wit- record in that case, and from it we find that ness having denied making the statement, ap- the witness was not only a son of the deceaspellant was asked whether Mr. 'Green had ed ancestor, but that he was party to the ismade the statement to her. An objection to sue being tried, that he had not been called her testifying upon this subject, on the by the adverse party, nor was he required ground that she was not competent to testify to testify by the court trying the cause. It as to any matter that had occurred prior to would therefore seem that the witness was inthe death of the ancestor, was sustained. competent to testify under the provisions of She was also asked whether she had had a 2 R. S. 1876, p. 133, which provided that: conversation with her mother, in the absence

“In all suits by or against heirs, founded on a of the father, about appellen, as to who was contract with or demand against the ancestor, her father. An objection being made, she the object of which is to obtain title to or pos. offered to prove that her mother stated to her session of land, or other property of such an. that Charles Johnson was the father of ap- cestor, or to reach or affect the same in any pellee. The court also refused to permit her way, neither party shall be allowed to testify to prove that she had a conversation with

as a witness as to any matter which occurred her father, in which he said the report that prior to the death of such ancestor, unless

required by the opposite party or by the court he was the father of appellee was false.

trying the cause. Section 522, Burns' 1914 (section 499, R. S. 1881), provides that:

This provision of the statute evidently was "In all suits by or against heirs or devisees, not called to the attention of the court, nor sounded on a contract with or demand against was there any objection to the competency of the ancestor, to obtain title to or possession the witness. Had such an objection been of property, real or personal, of, or in right.of, made, and had the attention of the court such ancestor, or to affect the same in any been called to the statute, we doubt whether manner, neither party to such suit shall be a the court would have used the expression, competent witness as to any matter which oc- | “and we see no other even plausible ground curred prior to the death of the ancestor."

of objection.” Such statement is clearly A suit for partition is an action by and obiter. We do not, under the circumstances, against heirs, and affects the property of the think that case can be recognized as an auancestor. It has been frequently held, in thority in support of the claim that appellant actions for partition, that a party claiming was competent to testify to any matter the land is not a competent witness to tes which occurred prior to the death of the antify against the other party. Wiseman v.

cestor over an objection properly and season. Wiseman (1880) 73 Ind. 112, 38 Am. Rep. 115. ably made. Appellant cites Denny v. Denny, Ex'r (1890)

Section 523, Burns' 1914 (section 500, R. S. 123 Ind. 240, 23 N. E. 519, in support of her 1881), provides among other things: contention that she was competent to im “If any witness shall, on behalf of the execupeach the witness Green, and De Haven v. tor, administrator, or heirs, testify to any con. De Haven (1881) 77 Ind. 236, in support of versation or admission of a party to the suit, the proposition that she was competent to bis assignor or grantor, as having been bad testify on the question as to whether her fa- the party against whom such evidence is ad.

or made in the absence of the deceased, then ther had acknowledged appellee to be his duced, his assignor or grantor, shall be compechild.

tent to testify concerning the same matter." In the De Haven Case the appellee was claiming to be an heir of Isaac De Haven, de The witness Green had not testified to the ceased, and as such entitled to a share of his conversation with appellant, and inquired estate. The appellants in that case, while about, having been had either in the presence examining one of their witnesses, asked him or in the absence of the deceased. He denied the question: "State what you know, if anythat such a conversation took place, and apthing, about your father ever recognizing pellant is no more competent to testify that Betsey

as his child." Appellee's such a conversation did take place than she objection that the question was leading was would be if the witness had testified to a consustained by the trial court, and on appeal versation which he claimed was in the pres. this was held crror. The only objection sugence of the deceased, and it is well settled gested was that the question was leading, I that in such cases the opposite party is bound

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(148 N.E.) by the statement of the witness that the con- , to impeach the witness Green, and thus alversation was had in the presence of the de- | low her to testify to such conversations and ceased. Kibler, Adm'r, v. Potter (1895) 11 statements which she might claim Green Ind. App. 604, 39 N. E. 525, and authorities made to her, when he had not testified to cited.

such conversations, but had denied that any If the witness Green had testified to a such conversations were had, it would permit conversation which he had with appellant in her, through the guise of the cross-examinathe absence of the deceased, appellant would tion of a witness, to build up a straw man, have been a competent witness to testify as in the way of conversations that had never to that conversation, Guthiel v. Dow (1912) taken place, and then to go upon the witness 177 Ind. 149, 97 N. E. 426; Copeland v. stand and testify to such alleged conversaKoontz, Adm'r (1890) 125 Ind. 126, 25 N. E. tions. Such a bolding would break down and 174; Martin v. Martin (1889) 118 Ind. 227, destroy the statute. If the witness Green 20 N. E. 763; Atkinson v. Maris, Adm'r had testified to a conversation which he (1907) 40 Ind. App. 718, 81 N. E. 745; Nelson claimed he had with appellant in the absence v. Masterton (18912 2 Ivd. App. 524, 28 N. E. of the ancestor, appellant would, under sec731.

In Denny v. Denny, supra, the appellee had / tion 523, Burns' 1914, supra, have been a filed a claim against the estate of her deceas-competent witness to testify concerning that

conversation. She would not, however, have ed husband, and had testified as to an alleged been a competent witness to testify to some conversation between herself and one of the other conversations, which she may have heirs. The heir claimed that the conversa- | claimed she had with Green, and which he tion took place in the presence of the dece had not testified about. dent. It was held that this did not render

If Denny v. Denny, supra, is to be construthe claimant incompetent, under section 498, ed as holding that appellant was a compeR. S. 1881 (section 521, Burns' 1914), to tes- tent witness to contradict or impeach the tify concerning the matter. "The conver

witness Green, by testifying that a conversasation," said the court, “having occurred be- tion took place, the taking place of which had tween the claimant and one of the heirs, it been denied by Green, or to testify to the alwas not a matter which occurred with the leged conversations with her father and testator during his lifetime, within the mean- mother, it is certainly not in harmony with ing of the statute, nor did the conversation the more recent cases of Copeland v. Koontz, relate to the matter or transaction upon supra, and Guthiel v. Dow, supra.

As was which the suit was predicated. It had no said by the court in the Copeland Case, 125 reference to the money here in controversy." Ind. at page 129, 25 N. E. at page 175: The opinion fails to state what the witness had testified to or whether it was in rebuttal its letter as well as by its spirit, limits the liv

"Hence the statute under consideration, by or otherwise.

ing party, in bis testimony, to the conversation Section 521, Burns' 1914, supra, provides

or admission about which the witness called that in suits or proceedings in which an ex- against him may testify." ecutor or administrator is a party, involving matters which occurred in the lifetime of the

Said section 522, Burns' 1914, supra, rendecedent, where a judgment or allowance may dered appellant incompetent to testify as to be made or rendered for or against the estate, “any matter which occurred to the death" of any person who is a necessary party to the her father, subject to the provisions of secissue or record, whose interest is adverse to tion 523, Burns' 1914, supra. We therefore such estate, shall not be a competent witness hold there was no error in refusing to permit to such matters against the estate. It ap- | appellant to testify as to matters about pears that the things about which such wit- which she was interrogated. ness is not competent to testify are the mat

(9) Appellant contends that the court erred ters involved in the suit or proceedings which in permitting a witness to testify concerning occurred during the lifetime of the decedent. a statement made by the mother of appellant Section 522, Burns' 1914, supra, is broader and appellee, wherein the mother said she had than section 521, Burns' 1914, supra, and made a “mistake in her life, and that she does not limit the incompetency of the wit- was never married to Johnson, but did marry Dess to the involved "matters which occurred Eli Stern; that said Eli was the father of her during the lifetime of the decedent,” but pro children.” Appellant concedes that declaravides that the party shall not be a "compe- tions of deceased members of a family are tent witness as to" any matter which oc competent to prove pedigree, but says that curred prior to the death of the ancestor.

whether the declarations offered were trustThis section rendered appellant incompe worthy, and whether necessity existed for tent to testify as to "any matter” which oc- their admission, were questions for the court, curred prior to the death of her father, and and which the trial court wrongly decided. we do not feel that we can justify ourselves In U. S. v. Sanders (1847) 27 Fed. Cas. 950, 10 overruling the plain words of the statutes. No. 16,220, Hempst. 483, it was held that the If we should hold under the facts in this declarations of a father as to the maternity case that appellant was a competent witness of a child were admissible and competent evi.

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dence, but that the circumstances under, testify to anything occurring during the lifewhich they were made, and the weight to be time of Eli Stern, whether in his presence or attached to them were matters for the jury absence; that thereupon the court stated to determine. See, also, Alston v. Alston that, in view of the objections made by ap(1901) 114 Iowa, 29, 86 N. W. 55. It has also pellee to the competency of appellant as a been held that an illegitimate child may tes-witness, her counsel was justified in not of. tify that her deceased mother told her the fering her as a witness to deny such convername of her father. Coker v. Cooper's Estate sation, but allowed the attorney for appel(1915, Tex. Civ. App.) 176 S. W. 145. Where lee in his argument to persist in his contenthe declarant is dead, his statement is not tion before the jury that she was competent excluded by reason of the fact that living to testify in that particular instance, and to members of the same family may be exam

comment on her failure to do so as an adined on the same point. Jarchow v. Grosse mission of the truth of the testimony of the (1912) 257 Ill. 36, 100 N. E. 290, Ann. Cas. witness Green. The objection of appellant 1914A, 820.

to this argument, as well as to the motion to (10) The Supreme Court of this state held have the same withdrawn was overruled, and that declarations concerning pedigree consti no instruction was at any time given the tute marked and important exceptions to jury directing the jury to disregard this the rule excluding hearsay evidence. Such argument. declarations are admitted upon the theory [13] Another one of appellee's attorneys, that they tend to show that the person to in making the closing argument to the jury, whom they refer was recognized and treated said: as one of the family. Proof of pedigree is

“The plaintiff, Georgianna McDole, was born restricted to the declarations of deceased per- at the home of a sister-in-law of Eli Stern," sons who were related by blood or marriage and that she "was born at the home of Mrs. to the person whose parentage is the subject Henley McKinzie, who was a sister-in-law by of investigation. The statements of an an- marriage of Eli Stern, and who knows but that cestor or deceased kinsman are not to be re- Eli Stern paid her expenses there when Georgarded as separate and distinct conversa- gianna was born.” tions, but are to be taken as a connected and indivisible thing, indicating the treatment of Thereupon one of appellant's attorneys the person whose pedigree is in dispute. De stated that there was no evidence tending to Haven v. De Haven, supra. There was no show any such relationship between Eli error in admitting this evidence.

Stern and Mrs. McKinzie, and the judge in [11] Appellant next contends that the court response to such statement, and in the hear. erred in admitting in evidence the certificate ing and presence of the jury, said he did not of the clerk of Champaign county, III, to the remember what the evidence showed the relaeffect that there was no record in his office tionship to be, but he did not remember it of a marriage license issued to Eli Stern and that way, but that the jury would remember Mary Fry, or Mary Johnson, for the reason what the evidence did show." Appellant obthat it was not shown that there was any law jected to this argument, and moved the court in Illinois for the recording of such license. to instruct the jury to disregard it and to No such objection was made in the trial court withdraw it from the jury. This motion to the introduction of such certificate in evi- being overruled, appellant thereupon, and be. dence. Appellant did object to the admission fore the close of the argument, in writing of such certificate in evidence, but not for the requested the court to instruct the jury to reason urged on appeal. The error, if any, disregard each of the statements so made. in admitting this certificate, was harmless. These requests were refused and exceptions

[12] One of the attorneys for appellee, in saved. the opening argument to the jury, after quot The evidence concerning when Eli Stern ing testimony of William Green to the effect tirst became acquainted with Mary Fry is that before the death of Eli Stern he had a anything but conclusive. One of appellant's conversation with appellant, in the absence of witnesses, a brother of Mary Fry, testified Mr. Stern, in which appellant asked the wit- that when he first knew Eli Stern he was going ness if her father had made a will, and on with her, and that appellee was probably 6 being informed that he had not that appellant months old. Another witness testified that replied, saying, “The Lord has been good to he became acquainted with Eli Stern in 1864; me," and the attorney, continuing his argu- that he first met Mary Fry at a picnic with ment, asserted that appellant was a compe- Eli Stern in July or August, 1865; that Eli tent witness to deny this conversation, but Stern brought her to the dance. The witness did not dare deny it. The record shows that Green, heretofore mentioned, testified that appellant objected to this argument, and Eli Stern told him that he first began to go moved the court to require the attorney to with Mary Fry in 1865; that they met at a withdraw the same, on the ground that the dance, and attended several dances together, court had, at the instance of appellee, held and that from that time she was his "lady appellant was not a competent witness to friend"; that they decided in 1866 to get


(148 N.E.) married, but that his mother objected, and The statement of appellee's counsel, in Mary said they would wait, and after that his argument to the jury, that appellee was appellee was born. This witness also testi. born at the home of a "sister-in-law of Eli fied concerning a statement which he said Eli Stern," or at the home of a “sister-in-law Stern made to him, and which, if the witness by marriage of Eli Stern," was not a correct is believed, would justify an inference that statement of the evidence; but, in view of Eli Stern was the father of appellee, and that the fact that there was no conflict in the the mother, Mary Fry, called her Georgianna evidence as to where she was born, and the Johnson to protect Eli Stern, on account of evidence being clear and undisputed that Mrs. bis being younger than she, and so people McKinzie was the sister of the husband of a would not talk about him being the father of sister of Eli Stern, the jury could not have her child and not marrying her.

been misled or prejudiced by such statement Other witnesses testified that Mary Fry in relation to Mrs. McKinzie being a sister-inhad left Indiana when a child, going with her law, or “a sister-in-law by marriage," of Eli parents to Kansas; that she afterwards lived Stern. No specific objection was made to the in lowa; that in the summer of 1865 she re- statement, “and who knows but that Eli Stern turned to this state, and to the neighborhood paid her expenses there.” Appellant therewhere she lived as a child, with a man named after, and during the course of the argument, Charles Johnson, whom she introduced to her in writing requested the court to instruct the relatives and friends as her husband. She jury that there was no evidence showing or and Johnson, who claimed to be a soldier, tending to show that Mrs. McKinzie was a visited with her relatives for a few weeks sister-in-law "by marriage" of Eli Stern, and after which they went to Indianapolis. that the jury therefore should disregard the Johnson said he had to report at Camp Mor- statement “that Georgianna McDole was born ton. Mary Fry returned some time later, at the home of Mrs. Henley McKinzie, who and reported that Johnson had deserted her was a sister-in-law of Eli Stern, and who at Indianapolis. On August 14, 1866, she knows but that Eli Stern paid her expenses gave birth to appellee at the home of her there." The reason given by appellant in supuncle, Henley McKinzie, whose wife was a port of her request for this instruction was sister of a brother-in-law of Eli Stern. The that “the argument was not true as to the reevidence relating to whether appellee was the lationship of Eli Stern.” It appears that the legitimate or illegitimate child of Mary Fry, part of the argument to which appellant was and whether after her mother married Eli really objecting was the statement of the reStern the latter acknowledged appellee as lationship of Mrs. McKinzie to Mr. Stern, his child, is in irreconcilable conflict. There and not the statement relative to the payment is no conflict in the evidence as to where ap- of the expense. A careful consideration of pellee was born. Eliza Woods, a sister of the record convinces us that counsel for apEli Stern, testified that appellee was born at pellee were not guilty of such misconduct as the home of one Mrs. Henley McKinzie, who amounts to reversible error. was a sister of Mrs, Woods' husband.

Judgment affirmed.

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