Opinion
[No. 147, October Term, 1946.]
Decided June 11, 1947.
Pedigree — Evidence — Declarations of Deceased Members of Family — Entries in Family Bible.
Recital in deed to intestate that she and woman treated as her sister in First Administration Account filed in her estate were sisters can be considered together with other evidence in determining whether they were daughters of the same mother in a proceeding to determine the right to funds of intestate, representing a sister's share, and held on deposit in Registry of Orphans' Court. p. 644
In proceeding to determine whether one listed by administrator as "sister" of intestate was entitled to a sister's share in the estate, a note, found among intestate's papers after her death addressed to intestate by brother and advising intestate that deed had been signed and executed by "sister" and her husband, was admissible to corroborate testimony of "sister" that brother came to see her. pp. 644-645
Declarations of deceased made to members of family are admissible in evidence to prove pedigree in proceeding to determine heirs at law and next of kin of intestate. p. 645
In proceeding by distributees of intestate's estate, challenging relationship of one listed by administrator as "sister" of intestate, testimony by members of the family was competent to show that intestate and deceased brother had each recognized "sister" as such. p. 645
Testimony as to pedigree, by one not a member of the family, are inadmissible. p. 645
Entries in a family Bible are admissible in evidence for the purpose of proving pedigree. p. 645
Evidence was sufficient to show that woman listed as sister of intestate in the First Administration Account was her sister, and as such was entitled to participate in distribution of estate. p. 645
Decided June 11, 1947.
Appeal from the Orphans' Court for Prince George's County (McPHEARSON, C.J., OSTERMAN, and CLAGETT, JJ.).
Proceeding in the matter of the estate of Hilda E. Preusser, deceased, wherein Harry Franklin Rhoades and others filed a petition alleging that Mary Bussinger was not a sister of deceased and therefore not entitled to participate in distribution of her estate. From an order in favor of Mary Bussinger, Harry Franklin Rhoades appeals.
Affirmed.
The cause was argued before MARBURY, C.J., DELAPLAINE, COLLINS, GRASON, HENDERSON, and MARKELL, JJ.
Henry A. Babcock and Walter L. Green, with whom were Green, Whalen, McLeisch, Babcock and Bell on the brief, for the appellant.
George T. Burroughs and Jesse B. Wilson for the appellee.
Hilda E. Preusser, who resided in Mt. Ranier, Prince George's County, Maryland, died on June 27, 1944, intestate, and Letters of Administration on her estate were granted by the Orphans' Court of Prince George's County to Ernest C. Preusser, her husband. A final administration account was stated by him, under which the estate in his hands was distributed as follows:
To Ernest C. Preusser, husband ............................. $7,824.60 To Mary Bussinger, sister .................................. 2,725.76 To children of Charles E. Rhoades, deceased brother: Elizabeth Mae Breeden ....................... $454.30 Willie Carroll Rhoades ...................... 454.30 Harry Franklin Rhoades ...................... 454.29 Fred Lee Rhoades ............................ 454.29 James Irving Rhoades ........................ 454.29 Charles Edward Rhoades ...................... 454.29 2,725.76 _______ This account was approved by the court.Dispute having arisen amongst the distributees, the administrator, under Section 233A, Article 16, 1943 Supplement, Annotated Code, 1939, filed a petition in the Orphans' Court, and the court ordered and directed the administrator to deposit the distributive shares of Mary Bussinger and Harry Franklin Rhoades in the Registry of the court. Thereafter the children of Charles E. Rhoades, deceased, filed a petition in the court, in which they set up that Mary Bussinger is not a sister of Hilda E. Preusser, deceased, and is, therefore, not entitled to participate in the distribution of her estate, and prayed the court to enter an order directing the sum distributed to Mary Bussinger in the administrator's account be turned over and delivered to the petitioners, as heirs at law and next of kin of Hilda E. Preusser.
To this petition an answer was filed by Mary Bussinger, in which she denied that she was not a sister of Hilda E. Preusser, but, on the contrary, asserted that she was a sister of Hilda E. Preusser. The matter was heard by the Orphans' Court, testimony taken, and the court found "that Mary Bussinger is a sister of Hilda E. Preusser, and an heir-at-law and is entitled to receive the amount audited to her in the First and Final Distribution Account, in the estate of Hilda E. Preusser," on the 27th day of November, 1946; and that "the Claimants pay the costs" of the proceedings. From this order an appeal was taken to this court.
The evidence shows that Susan Ann Rhoades lived in Rhoadesville, Orange County, Virginia. She died in 1930 or 1931. She was the mother of several children, and after their birth, she married a man by the name of Britton. Charles Rhoades, Thomas N. Rhoades (who died many years ago), Hilda E. Preusser, a girl by the name of Jane (who died when she was 14 or 15 years of age), were the children of Susan Ann Rhoades. The evidence tends to show that these children of Susan Ann Rhoades were placed with different families in the county, where they worked and were reared.
Elizabeth B. Almond was a niece of James W. Tinsley, whose wife was named Mary Ella. Tinsley lived near a place called Burr Hill, and was a blacksmith. He and his wife had no children. Mrs. Almond testified that many years ago Tinsley and his wife stopped by her home and said that they were on their way to Rhoadesville, which was about six or eight miles from her home, and that they were going to get this child to raise, Mary Rhoades. She was a daughter of Susan Ann Rhoades. This child, at the time, was five or six years of age, and she testified that she does not remember anything of her life before she was taken into the Tinsley home. She was raised by the Tinsleys and sent to school by them. She thought her name was Mary Tinsley, but early in her life she was informed by some of her schoolmates that her real name was Mary Rhoades. The family bible of Mrs. Tinsley shows her name listed therein as "Mary R. Tinsley," and this entry was made by a brother of Mrs. Tinsley. When Tinsley died, Mary Tinsley or Mary Rhoades (now Mrs. Bussinger) obtained employment in Charlottesville, and took with her her foster mother, Mrs. Tinsley, whom she lived with and cared for until she died. Mrs. Tinsley left Mary Bussinger everything she possessed.
After she went to Charlottesville she married Thomas J. Bussinger, in December, 1910. Bussinger took out the marriage license, and gave her name as Mary R. Tinsley. The testimony of the widow and children of Charles E. Rhoades is that there was no relationship between their family and Mary Bussinger; that she never came to see her mother, Susan Ann Rhoades, did not attend her funeral, nor the funeral of Charles E. Rhoades, who she claims was her brother. This testimony is denied by Mary Bussinger and her son and her daughter, and there is other testimony in the record that tends to show that Charles E. Rhoades spoke of Mary Bussinger as his sister.
On the 19th day of September, 1931, Mary Rhoades Bussinger and her husband executed a deed to Hilda E. Preusser, wherein they deeded all their right, title and interest in a twenty-nine acre tract of land in Virginia, of which Thomas N. Rhoades died seized and possessed about twenty-five years prior to the date of the deed. This deed recites that Thomas N. Rhoades was "survived by two sisters, Mary Rhoades Bussinger and Hilda E. Preusser and one brother, C.E. Rhoades, who are now the owners of said land as all the heirs at law of the said Thomas N. Rhoades, deceased." Shortly prior to the execution of this deed Mary Bussinger was visited by Charles E. Rhoades. She states that he told her he was her brother, and that thereafter she went to Rhoadesville and that his wife told her that she was a sister of her husband, and her children called her "aunt." She further states that when she moved to Charlottesville, Charles Rhoades came to see her, that his wife came to see her and stayed as long as a week with her.
Mrs. Charles E. Rhoades said: "I was in Charlottesville and I didn't have a place to stay so I went to her house. * * * I was there one night when I was in the hospital in Charlottesville, Virginia. I do not know how many times I was there after that. She was a friend of mine and I went to school with her, when I found she was there, I visited her." These visits were made after she signed the deed referred to. She was the administratrix of the estate of Susan Ann Britton (or Susan Ann Rhoades). She was asked: "Mrs. Rhoades, you furnished Mrs. Bussinger's name as a daughter of Susan Ann Rhoades? A. That is right. When I found the papers and saw her name there, what else could I do." She said she got her name from a deed in the courthouse in Orange.
When Mrs. Preusser died Mrs. Breeden, together with Ernest C. Preusser, went to see Mr. John R. Fletcher in reference to taking out Letters of Administration on the estate of Mrs. Preusser. Mr. Fletcher was asked: "Tell the court who she named as the next of kin of Hilda Preusser? A. She named herself and one of her brothers — it was either Willie Carol, or Harry F. She then stopped and said why am I telling you this information and why should you ask and I told her I had been employed by Mr. Preusser for the purpose of preparing letters of administration for the estate of his wife. Then Mrs. Breeden stated that this is going to be one great mess. She also said that she better talk to her lawyer and I stated that was the best thing to do. I asked her what she meant by a mess and she said. `Well, another party, a sister and I don't want to discuss that'." Mr. Fletcher further stated: "She was in my office several times and discussed with me the fact that Mrs. Bussinger was supposed to be a sister of Mrs. Preusser."
After the death of Mrs. Preusser her husband took some papers to Mr. Fletcher. These papers were among the effects of Hilda Preusser. Among the papers was the following:
"Rhoadesville, Va., Sept. 19, 193 (?) Dear Sister, I have been to Charolletsville and had the knowledgment of both of them and have brought it back and had it recorded at Orange. I will write you more next time. Your brother, Charlie Its time for the Bus."
On the back of this note was the following:
"These papers show that the deed is in the Clerk's Office."
Katherine Gibson is a daughter of Mary R. Bussinger. She testified that she had been at the home of Charles E. Rhoades in his lifetime, that she called him "Uncle Charlie," and his wife "Aunt Byrd," and that they "came to our house and I heard them say that Charlie Rhoades was my Uncle." She said that Charles E. Rhoades and his wife, and the deceased, Mrs. Preusser, came to her home.
James Bussinger, a son of Mrs. Mary Bussinger, stated that Mrs. Preusser came to their home and introduced herself as "Aunt Hilda." He stated that he took his mother to see Mrs. Hilda Preusser when she was living on Eye Street in Washington, D.C., and that his mother stayed about five weeks; and that "we would always call them `Uncle' and `Aunt'." He further stated that Elizabeth Breeden addressed his mother as "Aunt Mary." There is other evidence in the case, which we have carefully considered, but it will not be necessary for us to further pursue the testimony.
The deed from Mary Rhoades and husband to Hilda E. Preusser was properly admitted in evidence. The recital in that deed, that Mary Rhoades Bussinger and Hilda E. Preusser and Charles E. Rhoades were sisters and brother, is proof of that fact as between the parties ( Wanex v. Hurst, 188 Md. 520, 53 A.2d 38), and it can be considered with other evidence in the case in determining the question of whether Mary R. Bussinger was a daughter of Susan Ann Rhoades. The note addressed to "Dear Sister" and signed "Charlie," dated "Rhoadesville, Va., Sept. 193 (?)," was admissible in evidence. It was found among Mrs. Preusser's papers after her death. It undoubtedly was a communication from Charles E. Rhoades to his sister, Mrs. Preusser, advising her that the deed referred to had been signed and executed by Mary R. Bussinger and her husband. It tends to corroborate the testimony of Mrs. Bussinger that Charles E. Rhoades came to see her, and was admissible in evidence for that purpose.
The declarations of a deceased made to members of his family are always admissible, and this has been the rule adopted by numerous decisions of this court. From the evidence in the case, we have no doubt that Mary R. Bussinger was a daughter of Susan Ann Rhoades, and, therefore, a sister of Hilda Preusser. It was competent, Charles E. Rhoades and Hilda Preusser being dead, to show by members of the family that each of these decedents recognized Mary R. Bussinger as a sister. That such testimony was admissible to prove pedigree is supported by a long line of decisions of this court. Barnum v. Barnum, 42 Md. 251; Craufurd v. Blackburn, 17 Md. 49, 77 Am. Dec. 323; Hendrickson v. Attick, 136 Md. 1, 109 A. 468; Jones v. Jones, 36 Md. 457, 11 Am. Rep. 505; Blackburn v. Crawfords, 3 Wall. 175, 18 L.Ed. 186; Jackson v. Jackson, 80 Md. 176, 30 A. 752.
The appellants offered to prove that an old colored woman stated that Susan Ann Rhoades had a child that died. She, of course, was not a member of the family, and the court correctly excluded this statement. The evidence of the entry in the bible of Mrs. Tinsley, in which Mary Bussinger is listed as "Mary R. Tinsley," was admissible. Weaver v. Leiman, 52 Md., at page 719.
After a careful consideration of all the evidence properly admitted, we are of opinion that it shows that Mary Rhoades Bussinger was a sister of Hilda Preusser, deceased. It follows that the First Administration Account, which treated her as a sister, is correct, and the Orphans' Court of Prince George's County properly dismissed the petition of the claimants. Its decree in the case was correct, and will be affirmed.
Decree affirmed, with costs to appellee.