Opinion
13911
September 28, 1934.
Before GRIMBALL, J., Charleston, October, 1930. Affirmed.
Suit by the Carolina Savings Bank against Viola B. Ellis and others, in which Mary Jane Campbell Cole and others intervened. From an adverse decree, interveners appeal.
The report of the master F.K. Myers, and the decree of the Circuit Judge, Wm. H. Grimball, directed to be reported, are as follows:
REPORT OF MASTERTo the Honorable, the Court of Common Pleas:
John Richardson Campbell died in the City of Charleston, on the 19th day of July, 1930, leaving an estate of the appraised value of $408,715.77, the residue of which, being practically the entire estate, he directed by his last will and testament duly admitted to Probate in the Probate Court for Charleston County, should be distributed by his named executor, the Carolina Savings Bank of Charleston, in equal shares to Viola B. Ellis, Herbert F. Goodwin, W.M. De Lesline, Marie L. De Lesline, and each of the next of kin of the testator, who, in the event of his having died intestate, would have inherited from him under the Statute of Distribution of the State of South Carolina.
Alleging the above facts and its qualification as executor, the plaintiff filed its complaint in this Court on the 29th day of October, 1930, setting out its lack of knowledge or information as to the lawful heirs and next of kin of John Richardson Campbell and asking inquiry and determination and direction by the Court as to its duty in connection with the carrying out of the terms of the said will.
The beneficiaries named in the will were made parties defendant, as were Arthur Drummond Hopkins, Albert John Roberts, Lawrence Roberts, Frances Richardson Clark, Florence Richardson Bruner, William F. Benet, claiming to be next of kin, and John Doe and Richard Roe, fictitious names used to represent other next of kin of the testator, if any.
The matter was referred to me to take the testimony and report the same with my conclusion and recommendation as to law and fact, by order dated February 4, 1931, in which default was decreed as to possible claimants in the John Doe and Richard Roe class, as well as to Georgia C. Merck, who had been allowed to intervene as a party defendant by order dated January 9, 1931, and whose rights, if any, have not been further presented.
The executor having disclosed for the record its limited information as to the family history of testator and the sources thereof, together with inquiries received, it was deemed advisable, and by agreement of counsel, the master recommended and the Court ordered on the 26th day of May, 1931, that there be published once a week for three weeks in the Evening Bulletin, a newspaper published in the City of Philadelphia, Pa., and in the Irish Independent, a newspaper published in the City of Dublin, Ireland, an advertisement reading as follows:
"Estate of John Richardson Campbell"Who died at Charleston, S.C. July 19, 1930, the son of John Campbell, born in Dublin, Ireland, 1815, who emigrated to Philadelphia, Pa., and later to Charleston, S.C. The heirs of the said John Richardson Campbell, if any, are requested to communicate with the undersigned, with proof of such heirship. Claimants, if any, failing to communicate with the undersigned on or before July 20th, 1931, will be barred from participation in said Estate, under the provisions of Order of the Court of Common Pleas for Charleston County.
"Carolina Savings Bank, as Executor,
"Charleston, S.C."
On the 22nd day of September, 1931, the plaintiff executor submitted for the record affidavits of the publication of said notice as directed with a report of all responses thereto, and upon my report and recommendations thereon, filed September 23, 1931, an order and rule was entered on the 26th day of September, 1931, requiring all of the persons by whom or in whose behalf tentative claims had been so filed to show cause on or before October 26, 1931, why they should not be debarred from participation in the distribution of said estate, with the right to such of said claimants as so desired to intervene by properly explicit petition on or before said date.
The method prescribed in said order for service of said rule by mailing a copy to each of the said persons was followed by the executor, and all of said persons were barred by its terms, except these claiming an interest under the information filed with the executor by Attorney Honour B. Gelson, of Brooklyn, N.Y., for Mary Jane Cole et al., and Connelly L. Smith et al., represented by Messrs. Mitchell Horlbeck, who allege an interest through the same line.
The minutes of reference held by me in Charleston and Savannah, together with the numerous exhibits offered, are herewith filed, and there are in the record a number of depositions, with exhibits, taken in Coleraine, Ireland, Brooklyn, N Y, and in the City of Philadelphia.
As the case is made up and finally submitted, there are three sets of claimants:
The Charleston claimants: Arthur Drummond Hopkins, Albert John Roberts, and Lawrence Roberts, claiming as great-grandchildren of the maternal grandparents of testator, and therefore under the method of computation provided by the statute of distribution of the State of South Carolina, Code of 1932, § 8906, Paragraph 6, as related to testator in the fifth degree.
The Savannah claimants: Frances Richardson Clark and Florence Richardson Bruner, claiming as grandchildren of the grandmother of testator in the maternal line, and therefore, as computed by the statutory provision, as related to testator in the fourth degree; and William F. Benet, as related in the fifth degree, whose claim has been formally withdrawn.
The Irish or Macosquin claimants: Mary Jane Cole et al., and Connelly L. Smith et al., claiming as grandchildren of the alleged paternal grandparents of testator and as related under the statute in the fourth degree.
I use the words "alleged paternal grandparents" with reference to the Irish claimants because their rights depend upon the establishing of that relationship, whereas the Charleston and Savannah claimants allege relationship through the unquestioned maternal line.
FINDINGS OF FACT AS TO FAMILY HISTORY OF TESTATOR AND FAMILY TRADITIONSJohn Campbell (hereinafter referred to as John Campbell of Charleston) was born in Dublin, Ireland, in 1815, emigrated to Charleston from Dublin by way of Philadelphia at the age of 15 years (about 1830), was married to Eleanor Roberts, daughter of Albert J. Roberts and his wife, Martha Art Roberts, and died in the City of Charleston on or about the 6th day of November, 1854.
He was survived by his widow, who died in the City of Charleston on the 26th day of May, 1895; by a son John Richardson Campbell (testator), who was born in 1844, was never married, and who died on the 19th day of July, 1930; by a son Francis V. Campbell, born 1845 and died in Charleston in 1880; by a posthumous son Theodore, born in 1855, and who died in Charleston in 1878; a daughter, Eleanor Sarah Campbell, born in 1850, died in the same year as her father, 1854.
The sons Francis and Theodore never married, and both died without issue.
The family residence then and up to the death of John Richardson Campbell, testator, was on Church Street, in the City of Charleston, between Atlantic and Water Streets, and was never changed.
John Campbell of Charleston conducted a ship supply business and at one time was engaged in the manufacture of pants. For his family he appears to have made substantial testamentary provision by the terms of his will duly admitted to probate in the Probate Court for Charleston County, a certified copy of which is in evidence. Therein he makes substantial provision "for my friend and relative Captain John K. Richardson of Savannah," and further provides an annuity "for my widowed sister Mrs. Ann Welch of Manchester, England," which annuity was paid until the death of his sister in 1871, as appears from copies of executor's accounts in evidence.
His widow, Eleanor Roberts Campbell, had with her at the family residence on Church Street, after the death of her husband, her son Francis, who died at the age of 30 years, her son Theodore, who died at the age of 23, and was survived at her death in 1895 by the testator, then 51 years of age, and also a member of the household.
This family record is sufficient to justify a conclusion that collectively at times during this period of family life they recalled memories of the father and discussed his origin and connections, and that the only known facts as to him were the place and date of his birth and of his arrival in America, and is further sufficient to justify the conclusion that when testator, having so lived with his mother and brothers after his father's death, made comparatively recent efforts to locate his next of kin on his father's side, if any, as testified to, without result, he had exhausted his mother's knowledge of the subject before her death.
These facts, dates, and ages are significant in the consideration of matters hereinafter covered.
CHARLESTON CLAIMANTS RELATED TO TESTATOR ON MOTHER'S SIDE IN FIFTH DEGREEAlbert J. Roberts, brother of testator's mother, Eleanor Roberts Campbell, married Agnes Ainesbury. Their daughter, Mary Eleanor Roberts, married Captain G.H. Hopkins, and the defendant claimant Arthur Drummond Hopkins is the sole survivor of the issue of that marriage. Their son, Albert J. Roberts, 3rd, married Ida Ham, and the defendant claimants Albert J. Roberts and Lawrence Roberts are the surviving children of that marriage.
I find that the Charleston claimants are related to testator in the fifth degree, as computed by the method prescribed by the Code of South Carolina for determining next of kin in the distribution of intestate estates.
This finding is in accord with the claim made, and is amply supported by proof of family tradition, old records, ancient documents, and by statements of testator to disinterested parties in his lifetime. More detailed reference to the evidence upon which this finding is based is deemed unnecessary in this report, in view of other conclusions hereinafter submitted, and, in fact, not contested.
SAVANNAH CLAIMANTS RELATED TO TESTATOR IN THE FOURTH DEGREE ON MOTHER'S SIDE — NEXT OF KINUpon the death of Albert Roberts, father of testator's mother, Eleanor Roberts Campbell, his widow, Martha Art Roberts, married one George Torrington. The issue of this marriage was a daughter Martha, who died unmarried and without issue and a daughter Sarah, who married Captain John K. Richardson. The claimants, Frances Richardson Clark and Florence Richardson Bruner, are the surviving children of the Torrington-Richardson marriage, and are next of kin of testator related in the fourth degree, under the method of computation provided by statute.
Immediately upon notice of the death of testator, Mrs. Clark came to Charleston, bringing with her the Richardson family Bible with entries of the marriage of John Campbell and Eleanor Roberts, the marriage of John Richardson and Sarah Torrington, and of the children of the latter marriage, and entries of the death of John Campbell on the 6th day of November, 1855 (?), of the death of Captain John K. Richardson, and of his wife and of other members of the Richardson family. These were exhibited to Mr. George L. Buist, who declined to represent Mrs. Clark and her sister, because of possible conflict of interest with that of the named beneficiaries in the will of John Richardson Campbell, then represented by Mr. Buist.
This finding is solidly based upon the evidence presented, and is practically uncontested.
John Campbell of Charleston, the father of John Richardson Campbell, refers in his will to the father of these claimants as "my friend and relative Captain John K. Richardson," and in the public notice of the death of John Campbell of Charleston, in 1854, "the friends and relatives of the family and of Captain John K. Richardson" are invited to attend the funeral.
John Richardson Campbell was given his middle name of Richardson in compliment to the father of these claimants, and after the death of Captain John K. Richardson, Eleanor Roberts Campbell, at her expense, erected a tombstone over his grave.
Correspondence proclaiming affectionate relation, which in later years passed between these claimants in Savannah and their families and testator in Charleston is produced both by claimants from their homes and by the executor from the testator's files, and are of unquestioned authenticity. Photographs from both sources are identified, with convincing details of family intimacy and communication, together with family trinkets and keepsakes given and exchanged. Documentary proof of substantial remittances by testator to Sarah Torrington Richardson, mother of claimants, subsequent to the death of his mother, Eleanor Roberts Campbell, and after the death of Captain John K. Richardson, their, father, was produced.
Captain John K. Richardson died in 1880, and his wife, Sarah, died in 1910.
As against the established reputation of testator for miserly hoarding, this supports the claim of blood relationship as a motive for special material care and interest from one penurious in his personal expenditures, and living, as the testimony shows, in a condition of comparative domestic squalor for one of his ample means.
Doubt of blood relationship of these claimants to testator is suggested by the Hopkins family tradition that Sarah Torrington was a daughter of George Torrington by a former marriage, and not the daughter of testator's grandmother, Martha Art Roberts; also by the testimony of J.S. O'Donnell, a friend and neighbor of the Campbell family for many years who knew testator's mother, Eleanor Roberts Campbell, and states as his understanding and knowledge of the Campbell family tradition that the Richardsons were not blood relations and who also states that testator informed him during his lifetime that the Charleston claimants, Hopkins and Roberts, were his only known next of kin. These doubts are completely removed by proper evidence in the record.
George Torrington, the father of Sarah Torrington Richardson, was apparently something of a sea rover. Writing from Kingston, Jamaica, to his wife, Martha, then in Charleston, on November 16, 1833 (original in evidence), he says: "My mind is uneasy concerning you and our family's welfare." "If you feel inclined to dispose of the property in Philadelphia to come and settle here and bring your three daughters, I should feel happier, etc." He refers also in this letter to "Theodore" and to "Albert" (brothers of testator's mother), suggesting that they might accompany "the family" to Jamaica and find suitable employment, indicating an interest in these boys as his wife's kin. He writes also about a letter from "Mr. Jones," and refers his wife to him for advice and assistance.
All of this is significant on the question of blood relationship, and is of importance in connection with indisputable documentary evidence that Sarah Torrington Richardson was a necessary party to the settlement of the Art estate in Philadelphia and to the disposition of property there which had come to Martha Art Roberts Torrington from her family, which documentary proof shows that one "Benjamin Jones" was their attorney and agent in Philadelphia.
There is in evidence a certified copy of a deed recorded in the State of Pennsylvania and County of Philadelphia, in Book GGP, No. 52, at page 45, conveying premises in the City of Philadelphia, by Ellen Campbell, Agnes M. Roberts, Sarah Richardson, Agnes Matilda Roberts, George H. Hopkins, Mary Ellen Hopkins, A.J. Roberts, and Ida Roberts, and witnessed by John Campbell, with probate as to signature of Sarah Richardson, in the County of Chathan, State of Georgia, and reciting that the interest conveyed in the said premises was inherited by Martha Torrington and James Art from their father, and that the said Martha Torrington left surviving at her death her three children, Ellen Campbell, Albert J. Roberts and Sarah Richardson, of whom the last named married and was then the widow of John K. Richardson. On the deed appears the date June 19, 1885.
There is further circumstantial evidence in the location of family graves and tombstone inscriptions.
The doubt of blood relation of Sarah Torrington to Eleanor Roberts Campbell, by the suggestion in the Hopkins' tradition and in the O'Donnel reference to the Campbell family tradition, is entirely refuted. These are the salient and convincing points in connection with the genealogy of these claimants.
I find that they are descendants of Martha Art, the grandmother of testator, and as such are testator's next of kin, related in the fourth degree.
THE IRISH OF MACOSQUIN, INTERVENERS CLAIMING RELATIONSHIP IN THE FOURTH DEGREE THROUGH PATERNAL LINEThe real difficulty presented in this case is determination of the validity and soundness of the case as made for these claimants, tending to show the same degree of relationship as that established by the Savannah claimants, through the paternal line.
Passing upon the creditability and reliability of human testimony is a task in itself, and is made doubly so if one, charged with this responsibility, does not see and hear the witnesses, and is without opportunity to observe what, to a trained judicial mind, are indications of truth and frankness on the one hand and falsification, evasion, and collusion on the other.
In my more than twenty-five years of experience as master, charged with this responsibility in findings of fact, I have always regarded the confronting and observation of witnesses as of much more value and importance than seems to have been of late accorded thereto by reviewing Courts, and I am still convinced of its importance and aid in fact finding.
It is my observation that testimony which appears perfect on a transcribed record is sometimes given with a glib assertiveness, or with a hesitant manner, in either case, inviting suspicion of a trained analyst, who is also often able to detect the more or less concealed trepidation of a liar.
This Court is not concerned with the number of claimants nor with the shares they shall receive from this quite large estate, but is gravely concerned, as the plaintiff executor has shown itself to be, with the question of who is entitled to share under the next of kin clause of the will of John Richardson Campbell, that none shall be denied who are entitled to share, and that none shall share who are not entitled to do so under the law. Its conclusions must be reached under the rules of law and of evidence. The law is clear. In passing upon the facts and giving due weight to the evidence, the pressure of its responsibility is necessarily enhanced, however, by the fact that its decision may affect very gravely the whole future of hopeful claimants, in view of the amount involved. This is, however, only incidental, but has suggested the most careful study of every fact and circumstances that has been presented.
The case as made is referred to by counsel as strong in its very weakness, due to remoteness in time and generation from the alleged common ancestor and to the geographical remoteness of the family locus and now scattered distance of residence of claimants, whose alleged knowledge of the family history and tradition, upon which the claim is based, is alleged to have been acquired when these interveners, most of whom now reside elsewhere, were mere children in the neighborhood of Macosquin in the north of Ireland.
Depositions in support of this claim were taken in Coleraine, Ireland, and in Brooklyn, N.Y. The master was not present when any of these depositions were taken. He is presented with a mass of evidence and exhibits, showing verbal testimony developed largely by leading questions, properly objected to, and by hearsay testimony with objections noted, practically all of which objections were valid and proper, making all allowances for the wide latitude permitted as to hearsay in matters depending upon and involving family tradition.
While, therefore, a large part of the evidence so given might be properly excluded, it may, nevertheless, be conceded that, if offered before an officer empowered to rule on objections, it may have been as fully developed by other questions and methods of examination. The probative weight thereof may be affected, but I shall consider the entire evidence of these claimants as the instrument of the Court primarily empowered to carry out its purpose for the finding of the true next of kin of testator.
The disadvantage presented by the fact that it is all in deposition form will be evident upon examination.
By this procedure the following facts may be stated:
One John Campbell and Catherine Donnelly, both retainers or servants in the household of Thomas Richardson, a squire of Somersett, near Macosquin in Ireland, were married about the year 1815.
They were both held in high esteem by their employer, who presented to them a home on or of the Richardson estate in Macosquin. In further evidence of the esteem in which they were held, they were granted the distinguished honor of having one of their children, Thomas, baptized at the same service and with the same holy water as the daughter of the squire, and to the said Thomas was given the middle name of Richardson.
Of this marriage, there were children: Henry, John, Susan, Edward, Thomas, Kitty or Catherine, Mary Jane and Charles.
Thomas or Thomas Richardson Campbell left children, of whom are the interveners Mary Jane Campbell Cole, Grace A. Campbell Carr, Susan Teresa Campbell, Rose Cecelia Campbell, Bridget Campbell Stevens, Anastasia Campbell Magee, and Theresa Campbell Biggane.
Mary Jane (Gean) Campbell married Hugh Smith of Fernlester, and of her issue are the claimants William James Smith and Connolly L. Smith.
John Campbell of Macosquin was an ardent member of the Church of England, being a member of the vestry of the Parish Church. The home presented to him by Squire Richardson was known as Glebe House, and as a part of his establishment he conducted a "Pub," or place where drinks were served to the public. His wife, Catherine, was an equally devoted member of the Catholic Church; some of their children being baptized in both creeds.
John had his St. James, or Church of England Bible, and Catherine had her Douai, or Catholic Bible.
In his later years, John was incapacitated as a result of a stroke of lightning, and before his death at about the age of 80, his Bible in which he had inscribed a record of his numerous progeny, apparently to the extent of his knowledge of them, was frequently brought into use by members of the family for his spiritual comfort.
Family record entries in this Bible, by John Campbell of Macosquin, himself, are as follows:
Henry Campbell was born on December 3, 1817.
John Campbell was born on August 13, 1819.
Susan Campbell was born on August 4, 1821.
Edward Campbell was born on May 13, 1823.
Thomas Campbell was born April 13, 1825.
Kitty Campbell was born November 18, 1826.
Mary Gean Campbell was born October 3, 1828.
December 23, 1833, Charles Campbell was born.
In preparing their case, these claimants had available this family Bible record, and the information contained in the advertisement for heirs of John Richardson Campbell, as published in the Irish Independent in June, 1931, giving the following information:
Death of John Richardson Campbell (testator) in Charleston, on the 19th day of July, 1930. Birthplace of John Campbell, the father of testator, as Dublin, Ireland, and the year of his birth as 1815. Migration of the said John Campbell, father of testator, from Dublin in Ireland, to Philadelphia in Pennsylvania, and later to Charleston, S.C.
It is made to appear that this advertisement was observed by one of the Macosquin claimants still residing in Ireland, and was by her sent to her sisters, Mrs. Theresa Biggane and Miss Rose Campbell, residing in Brooklyn, N.Y. What correspondence passed is not disclosed. Notice of claim must be filed within a few weeks.
John Campbell, early nineteenth century emigrant, Dublin origin; Richardson, middle name — points of similarity justifying claim to share in the distribution of an estate to unknown heirs.
Mrs. Biggane, upon receipt of copy of notice from her sisters in Ireland, conferred with Miss Honour B. Gelson, attorney at law in Brooklyn, N.Y., and the result of this conference was the letter of Honour B. Gelson, attorney, to the executor of July 7, 1931, in which she informs the executor of the claim of the children of Thomas Richardson Campbell, reciting the names of children of John Campbell of Macosquin as found in Bible record, and adding: "All the above are dead, but have issues, which are now alive. Susanna died unmarried and without issue." A copy of this letter was attached to the master's special report of September 21, 1931, and the original is in evidence.
Susan of old John's Bible-listed progeny is now "Susanna" — "Susan" up to the time of her leaving of the family homestead as recorded by her father.
Why "Susanna" has as yet no explanation.
The chronological progress of this claim is of interest. Apparently unknown to claimants at that time, and so far as the record shows undisclosed to any one, was the information reposing in the Probate Court files of Charleston County that John Campbell of Charleston left surviving a widowed sister, "Aunt Welch, of Manchester, England," object of his testamentary bounty.
There could have been no thought or developed intent at that time to link "Aunt Susan" of Macosquin with "Anne Welch of Manchester."
Miss Gelson, an intelligent and experienced attorney, certainly gave to the executor information given to her, to the effect that "Aunt Susan" as "Susanna" had died unmarried and without issue.
Mrs. Theresa Biggane, who, in her deposition in Brooklyn in June, 1932, relates the story of "Susan" as "Anne" as she claims to have had it from her sister Kate just before her death when on a visit to Ireland in 1920, says it was discussed and "pulled apart" with her sisters Kate, Susan and Grace during this visit. This Mrs. Biggane was the source of Miss Gelson's information, and she then and there, as she twice repeats in her deposition, at pages 280-288, gave Miss Gelson all the family history at that time available to her.
The depositions, taken in Ireland in February, 1932, eight months after notice of claim was filed, established the existence and family history of John Campbell of Macosquin as hereinbefore related. Grace and Susan of the sister claimants who had "pulled apart" the story of the older "Susan" were there examined. Grace (Mrs. Carr) referred to her father's sister as "Susanne called Anne," who went away, she doesn't know where, and doesn't know if she married, and Susan refers to her Aunt "Susannah," known as "Anne," to John as the eldest and "Anne" as the next, but offers no details of the history of "Susan" or "Anne."
Of the Smith claimants, William James, a practicing attorney or solicitor at the Irish Bar, failed to testify. Connolly Smith, deposing in Brooklyn in June, 1932, gave no indication of knowledge or information concerning an aunt of his by the name of "Susan" or "Anne," though his knowledge of the family as recited was gained by fireside discussions before he left his native Ireland as a boy of 14, and upon his return to Ireland for a visit a few years later, on shipboard with his Uncle Charles, whom he had previously visited in Hazleton, Pa.
Positive testimony of "Anne Welch" as John Campbell's daughter "Susan" appears otherwise, however, in the Brooklyn depositions.
Anastasia Campbell Magee: "Aunt Susan married a man called Walsh. She went to England in Manchester. Where she married, I don't know. Don't know if she married before leaving or when she left Ireland. Sailed from Ireland to Manchester. Information obtained from sister Kate (now dead) and sister Mary (Mrs. Cole)."
Bridget Campbell Stevens: Knows nothing of what happened to "Aunt Susan" after she left Macosquin, except what was told her by sisters "Mary Jane and Mary." "Sister Kate thought she had gone to England and died but she did not know. I don't think she ever heard from her." No record of her burial.
Theresa Frances Biggane: Information as to "Aunt Susan" came from Sister Kate, from that infers that "Susan" must have been in communication with her brother John in America. That she was always described as "Anne" was told her by her sister Mary (Mrs. Cole). That the story of "Aunt Susan" was discussed and "pulled apart" by the sisters in a family gathering in Ireland in 1920 (above referred to).
Mary Jane Campbell Cole: Refers to her father's sister as "Susan." When she was 7 or 8 years old her father had a letter telling of his sister "Susan's" death. "Q. Do you know from where that letter came? A. I don't know — she was in — died in Manchester, England." Asked by her counsel:
"Q. Do you know if 'Anne' ever married? A. Well yes.
"Q. Do you know whom she married? A. A man named 'Welch.'
"Q. The family traditions? A. Yes.
"Q. Who was the source of that information as to where Anne had married? A. Well that came in my Uncle John's letters to his mother. Father said that she had married."
Throughout their entire testimony these claimants refer to their own sister, who was baptized "Susanna," as appears from baptismal certificate in evidence, as "Susan" or "Susie."
Presumably the name of their aunt recorded by John of Macosquin in his Bible as "Susan" was being carried on, but there is no support of the "Anne Welch" theory by any reference to this "Susan," "Susie" or "Susanna" of the next generation as "Anne."
The first notice of claim filed was with the idea, so far as indicated or disclosed, but there was no key to relatives of John Campbell of Charleston. No reference was made in this significant item of his will or whether he left a will until it was introduced in February, 1933.
But it must have developed in some way, subsequent to filing a notice of "Susan's" death unmarried and without issue, that it was necessary to the success of this claim to identify Susan with "Anne Welch of Manchester."
"Susan's" life story as disclosed is interesting and is important in passing upon the effect of this effort.
This child appears to have been the more venturesome member of this generation. It is related that as a result of her wildness and escapades with a certain young man, she was severely treated by her mother, and finally left home, creating a scandal said to have been much discussed in the bosom of the family and to have been referred to in letters from young John to his mother, carefully preserved by the family until after the death of Thomas Campbell, the younger, to whom the family homestead had passed, when they were thought to be "too shocking" and revealing of family secrets to be left about for perusal by young Tom's "strange" wife and his innocent daughter and were destroyed, so the story goes, by sister Kate, but not before Kate, the oldest sister, had discussed with her sisters, these claimants, the story of "Susan" and had informed them that "Anne" had gone to Manchester in England and had married a man named Welch or Walsh.
The testimony tending to link "Susan," the daughter of John Campbell of Macosquin, with "Anne Welch," the widowed sister of John Campbell of Charleston, an object of his bounty, is reviewed at length, because, if convincing, it would add weight to the effort to link John Campbell of Charleston with John Campbell, son of John Campbell of Macosquin, through letters, which Mrs. Mary Jane Cole, claimant, says she saw when a very young girl, bearing the postmark of Charleston in South Carolina, signed John, addressed to her grandmother, as his mother, pleading for sister Susan's forgiveness under the name of Anne Welch, then married in Manchester, England.
"Uncle" John is shown to have been apprenticed as a boy of about 13 to a draper in Coleraine, and later to a draper in Dublin, and to have remained in Dublin until his twenty-first year, or later, before, as is claimed, he emigrated to Charleston via Philadelphia.
But, in my consideration of this claim, I pin my reliance as to verity upon the Bible record, made by John Campbell of Macosquin, as produced by these claimants and amply authenticated as in his handwriting. This man, born to service, having served well, and having married and received material recognition from his master, the squire of Somersett, settled down to the founding of a family, and a record thereof for posterity, according to the method of the time — by Bible entries.
He carefully enters not only dates of birth but departures of the progeny from the family seat with the dates thereof.
"Henry," he says, "sailed for America May 3, 1836."
"Edward," he says, "sailed for America, April 24, 1845."
"Charles," he says, "to America September, 1854."
"Susan," he says, "to America September 13, 1848."
As to Henry, Edward, and Charles, these entries are verified by claimants' recital of family history.
As to "Susan," this entry is a solemn declaration from the now sealed lips of this justly proud Irishman, as against the hearsay statements of claimants, unsupported by existing documentary proof, in other respects contradicted; they themselves furnishing more probable support of the entries by reference to "Susan's" lover and his sailing for America shortly after the breaking of the family scandal. That "Susan," whatever her sacrifice of family respect, if the scandal story be true, was of an age to determine her own future is indicated by their admissions of her maturity and by the Bible entries — birth, 1821; departure, 1848.
John Campbell of Macosquin, making his ante litem motam entries, says of his son John, "Died, Mar. (or May?) 29, 1854." This entry shows evidences of either accidental or purposeful erasure, comparatively recent, whether rubbed, or resulting from acids. The original entry of the month, I am inclined to think, was "Mar.," though it may have been "May." The year recorded I am satisfied was 1854, though there might be some doubt as to whether the "5" was not a "6." The expert testimony offered as to the probable time of partial obliteration of this record, and what the original entry probably was, I consider speculative and not very helpful. The entry as it now appears speaks for itself in no uncertain way, and the portion obliterated does not prevent application of the authenticity of what remains to the fact as I find it.
John Campbell of Macosquin, raising himself and his fellow-servant and life companion from a thatched roof shanty origin to the Glebe House and enjoying the sweet savor of the esteem and respect accorded a substantial citizen, looked forward to a time when the doings of his progeny would be of interest both in and far beyond the confines of Macosquin. And he made the record; he was justified by the showing that succeeding generations of this humble beginning qualified for positions of honor and trust in the profession. The old sod had given him his reward. The young must seek new fields according to the custom of the time, and so Henry, the eldest born, was given his patrimony and sent with blessings to seek his fortune in the new world at the age of 19 years in 1836. So again as to the third son, Edward, in 1845, at 22 years of age. Family tradition says Edward joined Henry in what was then America's far West, St. Louis, Mo. Again the entry, "September 1854, Charles to America." It appears that Charles stopped in Pennsylvania and made return visits to Ireland, but nothing more of Henry and Edward.
Did John of Macosquin's son John go to America? His father makes no entry to that effect, but does make record of his death in 1854 or 1864. This entry appears on the title page, "The New Testament," below the entry of the sailing of Charles for America in September, 1854, and it may be argued that this would justify the reading of the obscure or partially erased entry date of John's date as November, 1854.
Last definitely placed in Dublin, it is a reasonable inference from the juxtaposition of these two entries that news of the death of John, wherever and whenever it occurred, was delayed in reaching the old home until after the departure of Charles. And having failed to note in the record any sailing of John for America, would not this entry of his death as in America, if in America, have supplied the missing data? It is related that, when John contemplated sailing for America, his mother paid him a farewell visit in Dublin; and the evidence of this is childish memories of a blackthorn stick which was presented to her by him on that occasion. Would so important a happening have escaped the father's knowledge and consequently the otherwise faithful Bible record? I think not.
The Mary Peacock story, entirely inadmissible, would not identify the John Campbell who was seen by her people in Philadelphia with John Campbell of Charleston. Even if it be granted that John Campbell, son of John of Macosquin, came to Philadelphia and finally to Charleston, he was not the father of testator, unless the father of testator is clearly shown to have had the correspondence as alleged with his mother in Macosquin. Without such proof, the fact that he came to Charleston, if proven, would show in connection with the Bible entry of his birth that this John, born in 1819, apprenticed first in Coleraine, later in Dublin, where he remained until he was at least 21 years of age, was not John Campbell, born in Dublin in 1815, who came to Charleston in 1830.
There are other reasons why the effort to connect John Campbell of Charleston with the letters said to have been written by one John Campbell, from Charleston, in Carolina, to his mother, in Macosquin, fails, even were the recital of their contents consistent with other established facts. Had "Aunt Susan," who sailed for America in 1848 within a comparatively short time, married Welch and returned overseas to Manchester, England, John's letters would have so developed the basis of his plan for the erstwhile erring sister who had been made an honest woman. And for this theory, developments would have had to be rapid in view of slow and difficult communication at that period. Which difficulties also apply to communication between Charleston and St. Louis at that time, the location of Henry and Edward. But as little was known of Henry and Edward apparently, there is an attempt in the story to add color by reciting epistolary solitude for the old folks' savings, in advice not to send any more money to the boys, and offering as an explanation money demands from Charles, who, having left Ireland in September, 1854, was scarcely in America before John Campbell of Charleston died.
Is it likely that John Campbell, writing to his mother about family matters, would have omitted news for her and the family there of his family?
If the souvenirs, which it is stated were sent to his mother by John Campbell of Charleston, are suggested as a link between this John and a man brought up to enter the business of a draper, they certainly show no connection with any business in which John Campbell of Charleston is shown to have been engaged.
Finally, as to these letters, I am convinced that, if John Campbell of Charleston had been in communication with this alleged extensive immediate family connection, after Susan sailed for America in 1848 — which would have been within the few years preceding his death — his wife and his well-grown children would have been advised of it, in later years would have discussed it in family circles, and John Richardson Campbell would not, in attempting to fulfill his expressed desire to develop a connection with his father's people, have resorted to a blind hunt. All of this testimony as to letters fails to establish a connection.
The first information filed for these claimants, stating that they were nieces of the testator, John Richardson Campbell, is unimportant except as indicating uncertainty. And the same uncertainty is indicated by the October, 1931, sworn affidavit of Patrick McLaughlin, whose wife was a daughter of Thomas Richardson Campbell and a sister of the claimants, in which he refers to the testator, John Richardson Campbell, as the son of John Campbell, the draper's apprentice, and himself, John Richardson Campbell, as the emigrant from Dublin to Charleston.
The other important alleged basis of this claim, the "Aunt Susan — Anne Welch" story, was murdered before it was apparently conceived. The important statement in Miss Gelson's original notice of claim, that Susan died unmarried and without issue, could not have been conjured out of thin air by Miss Gelson herself. It is definitely shown that it was based on information given to her, and that the source of her information at that time was confined to certain of the claimants, who now vigorously assert a contrary story. The impression on the Court is not in favor of its truth.
Susan, the venturesome, with or without a blessing and with or without patrimony, certainly left the homestead for America. Her father says so by entry ante litem motam; and the story of her lover headed westward overseas adds color and likelihood to its verity.
The similarity in names was intriguing, but they are not, either singly or in conjunction, sufficiently uncommon to be more than suggestively possessive of this branch of the Campbell clan. The Richardson middle name clearly came from another source, as shown. Another tentative claim was also filed with the executor based on the one-time existence of a John Campbell with a brother named George Richardson Campbell.
Over and above everything else in the case, there are two items of evidence, that, if they be correct, are conclusive against the Macosquin claimants. Both items are documentary in nature and were indelibly recorded long ante litem motam. Neither item is dependent on the memory or the veracity of any interested witness. Each item is not only uncontroverted, but is confirmed aliunde. The one item is the entry by old John Campbell of Macosquin in his Bible of the birth of his son John in the year 1819. Throughout the entire testimony the Macosquin claimants assert this date as the correct date of birth of their uncle John Campbell. The other item is the date of the birth of John Campbell of Charleston, chisled into his tombstone as the year 1815 at the direction of those who had best knowledge of the fact and who at the time had nothing to gain from misrepresentation. There is no evidence before the Court that the inscription on the tombstone of John Campbell of Charleston is in any wise incorrect. Therefore the Court accepts it as true. If John, the draper's apprentice in Coleraine and Dublin, was born in 1819, and John of Charleston was born in 1815, the decision of the Court must be, regardless of what persuasiveness other evidence might or might not have, that the two men were not identical.
CONCLUSIONI find that Frances Richardson Clark and Florence Richardson Bruner, children of John K. Richardson and his wife, Sarah Torrington, and grandchildren of testator's maternal grandmother, Martha Art Roberts, by her second marriage to George Torrington, are the sole next of kin of testator, John Richardson Campbell, and are as such entitled to share equally in the distribution of his estate with his named beneficiaries, Viola B. Ellis, Herbert Goodwin, W.M. De Lesline, and Marie L. De Lesline.
I shall not attempt to recommend at this time administrative details to be followed by the executor in making distribution. It seems important first to have a final decision as to the identity of the distributees. I therefore recommend that upon final determination of the identity of the distributees, the cause be referred back to me for determining upon a method of distribution that will be satisfactory to all parties then in interest and for carrying out the administrative details of such distribution and such other matters as might remain for adjudication.
DECREEThis cause, of great importance to its parties, now comes before this Court on exceptions to the report of Hon. F. K. Myers, master in equity, to whom it was referred under a general order of reference.
By consent of all the parties, the cause was argued before me at Waynesville, N.C., on August 10, 1933.
Through the kindness and courtesy of the members of the bar and the country commissioners of Haywood County, N.C., the new and magnificent courthouse of that county was placed at our disposal. Our sincere thanks to these gentlemen should be and is hereby recorded.
This cause has occasioned me great concern. In my seven years on the bench I have on no occasion been conscious of a greater weight of responsibility.
A decree disposing of a fund of more than $400,000.00 should cause deep concern to any human judge, especially so, as in this cause, where the entire lives and future of many of the litigants are to be so materially affected.
In addition to this consideration, I cannot but be mindful of the so-called "two-court rule" sometimes invoked by the Supreme Court. With this rule I have never been in accord. I have always believed that every litigant is entitled to a full and complete review of his cause in the Supreme Court, regardless of how the facts may have been determined by masters, referees, and trial Judges. However, be my humble opinion what it may, the rule is in existence and adds greatly to the seriousness of my task in this cause.
The judicial task in this cause is correctly defined by Master Myers. "This Court," states he, "is not concerned with the number of claimants, nor with the shares they shall receive from this quite large estate, but is gravely concerned, as the plaintiff executor has shown itself to be, with the question of who is entitled to share under the next of kin clause of the will of John Richardson Campbell, that none shall be denied who are entitled to share, and that none shall share who are not entitled to do so under the law. Its conclusions must be reached under the rules of law and of evidence."
After a complete and exhaustive study and consideration of the record in this cause, after reading carefully all of the testimony, and after carefully examining all of the evidence and exhibits, and after paying strict attention for hours to the able and interesting arguments of counsel in the cause, I have come to the inescapable conclusion that, in my humble judgment, the report of Master Myers should be affirmed and adopted as the decree of this Court.
In this cause there are many claimants to share in the estate of Mr. Campbell. On each claimant rested the burden of producing the greater weight of the evidence in substantiation of his claim. In his report, Master Myers finds as a fact that certain claimants named therein have failed to produce the greater weight of the evidence in substantiation of their claims. In my judgment he was correct in so finding. In his report, Master Myers finds as a fact that certain claimants named therein have produced the greater weight of the evidence in substantiation of their claims. It is also my judgment that in so finding he was correct.
It is ordered, adjudged, and decreed that all exceptions to the report of the master herein be, and the same are hereby, overruled.
It is further ordered, adjudged, and decreed that Frances Richardson Clark and Florence Richardson Bruner, children of John K. Richardson and his wife, Sarah Torrington, and grandchildren of testator's maternal grandmother, Martha Art Roberts, by her second marriage to George Torrington, are the sole next of kin of testator John Richardson Campbell, and are as such entitled to share equally in the distribution of his estate with his named beneficiaries, Viola B. Ellis, Herbert Goodwin, W.M. De Lesline, and Marie L. De Lesline.
It is further ordered, adjudged, and decreed that this cause be, and the same is hereby referred back to Hon. F. K. Myers, one of the masters in equity for Charleston County, for the purpose of determining upon a method of distribution satisfactory to the said parties in interest and for the purpose of carrying out the administrative details of such distribution, and for any other matters as may remain for adjudication.
And it is so ordered.
Messrs. Honour B. Gelson, Augustine T. Smythe and Mitchell Horlbeck, for appellants, cite: As to testimony of pedigree: 37 S.C. 19; 89 S.C. 490; 95 S.C. 152. As to widow being unmarried woman: 131 N.Y., 621; 139 N.Y., 471.
Mr. G.L. Buist, for respondents, Viola B. Ellis, Herbert T. Goodwin, W.M. De Lesline and Marie L. De Lesline, cites: As to appeal: 77 S.C. 414; 57 S.E., 1097; 58 S.C. 1; 35 S.E., 402; 123 S.C. 56; 116 S.E., 96; 170 S.C. 31; 169 S.E., 659; 150 S.C. 244; 147 S.E., 874; 144 S.C. 70; 142 S.E., 36; 103 S.C. 307; 88 S.E., 354; 11 S.C. 29.
Messrs. A.R. McGowan, John I. Cosgrove and John J. Bouhan, for respondents, Frances Richardson Clark and Florence Richardson Bruner, cite: As to affirming finding of facts by master: 169 S.E., 665; 2 S.E., 290; 168 S.E., 719; 150 S.C. 45; 147 S.E., 661; 150 S.C. 244.
September 28, 1934. The opinion of the Court was delivered by
This is a most interesting case, and the reading of the voluminous record, the study of the various exhibits, together with the closest attention to the briefs of counsel, create a most vivid story of human interest.
The suit was brought by the bank, as executor, as an equitable proceeding to obtain instructions from the Court as to the distribution of the estate of John Richardson Campbell of Charleston, who died testate. It is with considerable difficulty that we refrain from writing a full story of this case, but, as all of the material facts have been set forth in the elaborate report of the master, I am convinced of the futility of endeavoring to say again what he has so well said.
Although the suit was commenced in equity, the all-important question of fact immediately arose as to whether John Campbell of Macosquin, Ireland, and John Campbell of Charleston, the father of the testator, were one and the same person. The master has found as a fact that there were two men of similar name and the John Campbell of Macosquin was not the John Campbell of Charleston. The Circuit Judge has approved this finding of the master.
In either view of the case, whether the entire question be considered equitable or whether the question of the identity of John Campbell be a legal issue arising out of an equitable proceeding, we feel constrained to affirm the decree of the Circuit Judge.
If the proceeding be wholly equitable, the rule is that this Court "will not disturb the findings of the master concurred in by the Circuit Judge, unless such conclusions are against the clear preponderance of the evidence or without any supporting evidence; * * * it is incumbent upon the appellant to convince this Court that the Circuit Judge was in error in the conclusions reached by him on the facts." Fant v. Easley Loan Trust Co., 170 S.C. 61, 169 S.E., 659, 665; Kaminski Hardware Co. v. Bag Co., 150 S.C. 244, 147 S.E., 874; Cohen v. Goldberg, 144 S.C. 70, 142 S.E., 36; Miller v. Smith, 103 S.C. 307, 88 S.E., 354; Barrett v. Cochran, 11 S.C. 29.
We hold that the conclusions reached by the master and the Circuit Judge are not against the clear preponderance of the evidence, and further hold that there was abundant supporting evidence to justify the conclusions reached.
If the proceeding be considered as one in equity with a legal aspect as to the finding of fact, the rule in law cases may be said to apply. That rule is that, if the issue be legal, conclusions of fact as found by the master and approved by the Circuit Judge are not subject to review by this Court. Rippy v. Smith, 77 S.C. 414, 57 S.E., 1097; Ross v. Jones, 58 S.C. 1, 35 S.E., 402, 36 S.E., 1; Willard v. Finch, 123 S.C. 56, 116 S.E., 96; Fant v. Easley Loan Trust Co., supra.
Especial attention may be directed to the opinion of this Court in the case of Weston v. Morgan, 162 S.C. 177, 160 S.E., 436, and the authorities therein cited. That case began as a proceeding in partition, purely equitable, and because of the facts was decided as a law case. This case is very applicable to the present appeal, and shows conclusively that in purely legal findings of fact this Court is powerless to review such findings as are made by the master and concurred in by the Circuit Judge.
The report of the master herein together with the decree of the Circuit Judge are hereby affirmed and made the judgment of this Court.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER, CARTER and BONHAM concur.