Town of Bridgewater v. Town of Roxbury. In a note by Mr. Hare, the American editor of the Exchequer Reports, to the case of Percival v. Nanson, 7 Exch., on p. 4, it is said:" Entries by a third person in the course of business are in general admissible in this country (United States) after his death, whether they were for or against his interest when made; and the entries of a deceased agent may consequently be read in support of a suit brought by the principal, even where they are of payments made by and not to the principal." This proposition is fully supported by the case of Dow v. Savage, 29 Maine, 117. In Inhabitants of Augusta v. Inhabitants of Windsor, 19 Maine, 317, it was held that entries by a deceased physician in the regular course of his business are admissible in evidence when corroborated by other circumstances to render them probable, and that it was not necessary that entries to be admissible should be against the interest of the deceased person making them. We discover a tendency to more liberality in the courts respecting the admission of entries by both parties and third persons. . In 1 Wharton's Law of Evidence, § 246, it is said:"Original entries of deceased parties in their own books are held (in several jurisdictions of the United States) admissible, even though self-serving, when contemporaneous, and when confined to a transaction within the business of the party." The distinction previously adverted to disposes of any objection arising from the fact that Dr. Downs was interested as an inhabitant of the defendant town. But we do not think under any rule that has ever obtained in this state that the court upon this finding could say that the deceased physician had such an interest to pervert the fact as ought to exclude his entries. No controversy with any other town respecting this pauper had arisen or was contemplated. The acts both of the selectman and the physician are consistent with a belief on their part that Patty belonged to the defendant town to support and that no other town could be compelled to reimburse it. Indeed the expense at the time Town of Bridgewater v. Town of Roxbury. was apparently against the interest of the town. True, some twenty years later in a controversy with the plaintiff town respecting the settlement of a child and grandchildren of this pauper, the facts became important to exempt the defendant from liability, but is it reasonable to suppose that the physician made these entries in anticipation of any such resulting benefit to the town? A possibility of a corrupt motive always exists in respect to human acts, but some probability of it ought to appear in order to exclude entries fairly and regularly made as these were. But the further claim is made in behalf of the plaintiff, that though the evidence we have been considering was properly received and the fact established that the town. did furnish aid to Patty at the times and in the manner claimed, yet it was not effectual to prevent her gaining a settlement in the defendant town for two reasons-1st. Because it was not shown that she was in a condition to require aid, and 2d. Because it does not appear that she received the aid kowing that it was furnished to her as a pauper. As to the first point, the facts found specifically by the court are that Patty at the time was sick, that she needed medical aid, that she was unable to pay for it, and that she had no property. It is difficult to conceive what fact is lacking to make her a pauper. These facts must be accepted by this court as conclusive, unless indeed they are vitiated through an erroneous admission of evidence whereby they were found, which was objected to in the trial court. Though this court may consider the evidence insufficient yet the finding must remain. The only question for review in this connection is whether evidence was improperly received, and even this is not properly reviewable unless it was objected to in the trial court. Now in addition to the evidence we have been considering, it was further proved-"that from May, 1860, to 1867, she had no visible estate; that she lived in a house eighteen feet by twenty in dimensions, the sides of which were covered with unmatched hemlock boards; the roof was Town of Bridgewater v. Town of Roxbury. covered in part with shingles, the remainder with boards; only one room, a part of which only had any flooring; the ceiling was the roof; and her only business was to work for her neighbors and gather and sell berries in their season. There was no evidence that her children or any one rendered her any aid, except that her son Oliver disposed of some things for her which she brought into the house." Now this evidence was not objected to, and if it had been it would have been admissible as tending to show that Patty had no property. Indeed it would do more, it would make a very good prima facie case; for the absence of all visible estate for seven years would ordinarily indicate the nonexistence of an invisible estate, so far as it related to this world. All the surroundings of this person indicated great destitution, not only of property but of friends to aid as well. The second reason for rendering the supplies furnished ineffectual is, that it is not shown that Patty received aid as a pauper or knew the town was to pay the doctor. Now it is quite true that the selectmen of a town cannot create a pauper by any mere act of their own; they can relieve one who is a pauper and in need, and they are required to do so by the statute. But no rule of law has ever obtained in this state requiring supplies to be labeled "pauper supplies," or the recipient to be labeled "pauper," or to acknowledge the receipt of supplies as a pauper. An acquiescence on the part of the recipient may be presumed from circumstances showing need and destitution; and where the court is satisfied that relief was furnished to a needy pauper pursuant to duty created by the statute, the town may have the benefit of it, either to interrupt a settlement by commorancy or to lay the foundation of a claim over against another town. There was no error in the judgment complained of. In this opinion the other judges concurred. ALFRED S. DICKINSON AND WIFE'S APPEAL FROM PROBATE. Hartford District, May T., 1886. PARK, C. J., CARPENTER, Pardee, The statute (Gen. Statutes, p. 372, sec. 5,) provides that intestate estates shall be distributed by three distributors under oath appointed by the probate court, "unless all the persons interested shall be legally capable to act, and shall make and file in court a division of the same, made, executed and acknowledged like deeds of land, which instrument being recorded in said court shall be a valid distribution of said estate." Held that a division of such an estate made in writing among the persons entitled to it, all being capable to act and all joining, but where the division was not made, executed and acknowledged like a deed of land, and was not filed and recorded in the probate court, did not preclude a regular probate decree ordering a distribution of the estate. An order for the distribution of a certain amount as the balance left on the settlement of an administration account, and an acceptance of a distribution made under the order, but where by mistake the amount was not large enough, are not necessarily erroneous, but the distribution may be good so far as it goes, and a further order of distribution made for what remains. A probate decree appealed from remains in full force until the appellate court reverses it; but the probate court ought properly to be advised as to the action of that court, although a judgment affirming the decree is not necessary. [Argued May 4th-decided October 5th, 1886.] APPEAL from probate decrees allowing the administration account upon the estate of Electa Perry, deceased, ordering the distribution of the estate and accepting a distribution made under the order; taken to the Superior Court in Middlesex County. The court (Stoddard, J.,) reversed the first decree and affirmed the others, and the appellants appealed to this court. The case is sufficiently stated in the opinion. C. J. Cole, for the appellants.-1. The statute authorizing heirs to agree on a distribution of the whole estate does not Dickinson's Appeal from Probate. affect the right they have at common law to divide or alienate their estates. Baxter v. Gay, 14 Conn., 122. The object of the statute for the settlement and distribution of intestate estates was to provide a way and means for such settlement and distribution which would protect all the parties, but if the heirs are of full age and agreed, and the rights and claims of creditors do not intervene, there is no reason for the interference of a court of probate. In point of fact a great many estates are fully settled by the heirs among themselves without the intervention of a probate court. Courts do not interfere to set aside the agreements of parties unless it be for fraud or mistake, but rather seek to encourage the amicable settlement of differences, and to confirm and establish such settlements when made. In Adams's Appeal from Probate, 38 Conn., 304, the principle which we seek to establish here was sustained. That decision rests partly on the statute, but the theory of the case goes beyond the statute. It was held, under the statute providing for the appointment of guardians by the court of probate, that if a minor of lawful age shall select as guardian a proper person in the judgment of the court of probate, the judge has no discretion in the matter, but it is his duty to approve such choice, and make the appointment accordingly. where. 2. It is clear that in this case the order of the court of probate has been sufficient to raise a question as to the title to the factory and lands between Eveline R. Dickinson and Noah C. Perry, which must be decided either here or elseOne claims it under the distribution by agreement, the other under the distribution by the court of probate. A court of equity will interpose to remove a cloud upon a title, but should a court of probate having equity powers place a cloud on a title which a court of equity would remove, or should it so make its decree as to carry out the agreement and confirm the acts of the parties, and thus prevent the necessity for further legal proceedings in order to establish the rights of the parties in interest? At all events. should not the Superior Court on a review of the case re VOL. LIV-15 |