Opinion
10-15-1901
HICKEY et al. v. MORRISSEY et al.
Edward T. Day, for complainants. Mr. McAdams and Frank Bergen, for defendants.
Bill by Bridget Hickey and others against Catharine Morrissey and others to have vested remainder in certain lands declared to be in the complainants. Decree in favor of the complainants advised.
Edward T. Day, for complainants.
Mr. McAdams and Frank Bergen, for defendants.
EMERY, V. C. The bill in this case is filed by complainants, who claim a vestedestate in remainder in five tracts of land described in the bill, for the determination of the title to the lands against the defendants, under the acts of 1896 (P. L. p. 243) and 1897 (P. L. p. 211). Both parties, complainants and defendants, derive title to the lands from David Morrissey, who died seised of them on August 19, 1891, intestate, and leaving, him surviving, his widow, the defendant Catharine Morrissey, and an infant son, James D. Morrissey, his sole heir at law. James D. Morrissey died October 22, 1894, unmarried, and leaving his mother surviving. Complainant Bridget Hickey is the sole surviving sister of David Morrissey and the aunt of James D. Morrissey, and the other complainants are the children and heirs at law of Thomas Morrissey, a brother of David Morrissey, who survived his nephew, James D. Morrissey, but has since died intestate. Complainants claim that James D. Morrissey, at the time of his death, was under 21, and they are therefore, under the statute ("Descents," 1 Gen. St. p. 1194, § 4), entitled to an estate in remainder, subject to the life estate therein of the defendant Catharine Morrissey. On October 18, 1894, —four days before his death,—James D. Morrissey executed a will in due form, devising the lands in question to his mother, Catharine, in fee. The defendant Catharine now claims title in fee to four of the tracts, and the defendant O'Brien, a grantee of Catharine subsequent to the death of the son, claims title in fee to the remaining tract. Both parties submit the determination of their title to this court, and neither party has applied for an issue at law or trial by jury under the act of 1897. The single question to be disposed of is one of fact, viz. whether at the time of executing the will James D. Morrissey was under 21 years of age, and under the evidence the question is narrowed down to the decision whether he was born in January, 1873, or in January, 1874. The evidence shows that he was born at the house of Mrs. Morrissey's sister in Brooklyn, to which city Mrs. Morrissey went from her husband's residence, Summit, N. J., for attendance during her confinement. It also appears that she was there for some time (five months or so,—from the November previous to the birth), and that she then returned to her husband's residence In Summit. Before the return the infant child was baptized at a Roman Catholic Church in Brooklyn,—the St. James Procathedral,—and the sponsors at the baptism were Mary Kelley, a niece, and the defendant James J. O'Brien, a nephew, of the defendant Mrs. Morrissey. The records of baptism at this church, which have been put in evidence, contain the following entry: On page 221 of this book of records, running from March 8, 1869, to March 25, 1888, the page is headed 1874, and the first baptism on that page is January 11th. On this page, and under the date of January 18th, is the record: "Baptism ofJames D., born January 9, of David Morrison and Catharine Kelly. Sponsors: James O'Brien and Mary Kelley." The admission of this entry was objected to at the taking of the depositions upon the sole ground that the record did not refer to James D. Morrissey, and no other objection was made at the hearing. There is no entry on the record during the entire years of 1873 or 1874 of the baptism of a "James D. Morrissey," or of any "Morrissey," and, as it is clear from all the evidence that James D. Morrissey was baptized at this church in the presence of Mary Kelley and James J. O'Brien, as sponsors, the entry of the name of the child as "Morrison" instead of "Morrissey" must be considered as a mistake, and the record of baptism must be considered as relating to James D. Morrissey. The record of baptisms duly kept in a parish or other church is evidence as to the date of baptism, and of the birth of the child before that date (Jackson v. King [1825] 5 Cow. 237, 15 Am. Dec. 468; Blackburn v. Crawfords [1805] 3 Wall. 175, 189, 18 L. Ed. 180; Kennedy v. Dayle [1805] 10 Allen, 161; Whitcher v. McLaughlin [1874] 115 Mass. 167); but it is not admissible to prove the date of birth, unless, perhaps, the date of birth mentioned in the record is proved to have been inserted on the statement of the father and mother, made at the time and for the purpose of the entry. Blackburn v. Crawfords, supra; Whitcher v. McLaughlin, supra. Neither the father nor mother was present at this baptism, and the entry therefore is only evidence that on January 18, 1874, the infant James D. Morrissey was baptized in Brooklyn. It is admitted in the answer, and is also clear from the proofs, that the month and day of James' birth was January 9th, and. It being proved by the evidence of the record of baptism, which is not impeached by any other evidence in the case, that the year of the baptism was 1874, the question as to the year of his birth may well be determined by deciding whether at the time of Ills baptism be was a year or more old. That he was not so old is clear from the fact proved both by Mrs. Morrissey and James O'Brien, one of the sponsors, that Mrs. Morrissey went to her sister's in Brooklyn in the fall or early winter previous to the birth, that she was there a few months, and that the baptism occurred before her return. That Mrs. Morrissey was in Brooklyn during the winter she was confined, and returned to Summit in the late winter or early spring following the confinement, with her child, James, is also shown by the evidence of Bridget Hickey, one of the complainants, and Edmund Kelley, both of whom were at the husband's residence during her absence in Brooklyn, and were also there shortly after her return. This evidence by the witnesses upon both sides satisfactorily establishes that the baptism of the child occurred while the child was much less than a year old, and, taken in connection with the baptismal record as to the date of the baptism, clearly leads to the conclusion that the birth, if it occurred as is admitted, in a January, was January, 1874, and not January, 1873. The conclusion from the record and the undisputed facts, proved by witnesses on both sides, that the birth occurred in 1874, and not in 1873, is corroborated by the direct evidence of Bridget Hickey, the complainant, and Edmund Kelley, directly fixing the year of birth as 1874, by reference to events in their own lives. While the credibility of Kelley has been attacked, the evidence of Miss Hickey seems entirely reliable and trustworthy, and, taken in connection with the baptismal record and the undisputed facts in the case, clearly outweighs the evidence of the defendants Mrs. Morrissey and James O'Brien, fixing the year of the birth as 1873. The physician who attended Mrs. Morrissey at the birth of the child, and the only witness of the birth still living, except Mrs. Morrissey, lives in Brooklyn, and was visited by the defendants shortly before the hearing. The failure to call him or procure his evidence to corroborate their statements as to the year of birth must, I think, be taken into consideration as a circumstance weighing against defendants' statement.
I conclude upon the whole evidence that the complainants have satisfactorily established that James D. Morrissey was an infant at the time of the execution of the will in question. This will is therefore void, and the complainants are entitled, in the proportions set out in the bill, to a vested estate in remainder in all the lands in question, to take effect in possession upon the death of the defendant Catharine Morrissey; and a decree establishing their rights will be advised.