Slaney v Wade

[338] slaney v. wade. Feb. 19, 20, 25, March I, 1836. [See Shields v. Boucher, 1847, 1 De G. & S. 57.] An ancient mural inscription giving an historical account of a family, and placed in a chancel which had formerly been used as a burying-place of the family, and which formed part of the church of the parish where members of the family had long been resident proprietors, was held to be admissible evidence in a question of pedigree for the purpose of proving the facts stated in the inscription. The inscription having been effaced twenty-five years ago its contents were allowed to be proved by the secondary evidence furnished by copies made while the inscription was entire Such copies are not inadmissible in evidence, merely because, at the time when they were made, the possibility of a claim or controversy at some future period was contemplated. A recital that A. B. is a child of the marriage of the persons therein named, occurring in a deed by which the personal representative of the last surviving trustee of the premises comprised in the deed assigns the premises to A. B., who is not related to the assignor, and whose sole title to the assignment is in the character of a child of such marriage, is not admissible as a declaration to prove the legitimacy of A. B. in a question of pedigree between third parties ; semble. Edward Moreton of Ellesmere died without issue in the year 1776, having, by his will, made three years before his death, devised his estate in Kemberton and in the town and parish of Shiffnal, and all his freehold estate in the county of Salop, including the property in question in the cause, to his wife for life; with remainder (subject to a term of 1000 years to raise money for payment of his debts) to two persons and their issue in strict settlement; with remainder to his kinsman, Robert Jones Moreton (in the will called Robert Moreton), son of the Rev. Robert Moreton, for life; with remainder to his first and other sons in tail; and, in default of such issue, the estates were to descend to the testator's own right heirs. All the intermediate limitations having failed, the remainder in favour of Robert Jones Moreton, the last tenant for life under this will, took effect. Robert Jones Moreton died without issue in the year 1801. The Defendant Wade was entitled to a mortgage for a term of years over the property devised by the will of [339] Edward Moreton; and the original bill was filed by Robert Slaney, the father of the present Plaintiffs, claiming to be heir at law of the testator Edward Moreton, and, as such, seeking to redeem the mortgage. Upon the statement in the bill it appeared that Thomas Moreton and Elizabeth, his wife, were the common ancestors of the Plaintiff and of the testator Edward Moreton; that the testator was the last descendant of Edward, their eldest son who left issue; that Thomas and Elizabeth Moreton had another son, Robert, from whom [340] COMMON ANCESTORS. tt o 9 Thomas Moreton died at===Elizabeth Moreton died at Shiffnal, 1634. Shiffnal, 1664. Edward Moreton. Thomas Moreton. Thomas ITorcton. Slaney Moreton. Robert Moreton. Robert Moreton Thomas Moreton. Ann Moreton==Robert Slaney. Moreton Slaney. Robert Aglionby Slaney. CO £ 54 Edward Moreton Slaney Moreton (iM)==Elizabetli Brandwood. of Ellesmere, the testator, died s. p. 1776. Richard died Itobert the Lunatic s. p. 1756. (the person last seised in fee of the estates in question) died s. p. at Bilston, 1802. Robert Moreton. Plowdcn Slaney. Kobcrt Jones Moreton, Robert Slaney (the (the last tenant for life original Plaintiff) under the will of died 1834. Edward of Ellesmere) died s. p. 1801. Richard Slaney. Moreton Aglionby Slaney (who copied the inscription) died 1813. pj The present PLAINTIFFS, his children and devisees. 406 SLANEY V. WADE 1 MY. & CR. 341. were descended Bobert Jones Moreton, the last tenant for life, and Eobert Moreton his second cousin, a person of unsound mind, who died in a lunatic asylum at Bilston at the close of the year 1802, intestate and without issue, and with whom the line of Robert, the son of Thomas and Elizabeth, terminated; and that the Plaintiff was himself descended from a daughter of Thomas and Elizabeth Moreton, whose Christian name was Ann, and who married a person named Robert Slaney. The bill then alleged that upon the death of Robert Jones Moreton without issue in the year 1801 the fee-simple of the testator's estates became vested in possession in Robert Moreton of Bilston, from whom, subject to the mortgage, they descended to the Plaintiff as the heir at law of Edward and Robert. (NOTE.-The mode in which the Plaintiff stated his claim will be more clearly understood upon reference to the pedigree in the preceding page.) To this bill the Defendant pleaded a negative plea, putting in issue the Plaintiff's title as heir at law. In the year 1834, after issue had been joined upon the plea, and evidence had been gone into on both sides, [341] the Plaintiff died, having devised the property in question to his children, who thereupon filed a supplemental bill for the purpose of carrying on the suit: and as it was agreed that the question of pedigree would be more satisfactorily tried at law, two issues were directed to try whether Robert Slaney, the father of the Plaintiffs in the supplemental suit, was heir at law of the testator Edward Moreton, and also whether he was heir at law of Robert Moreton, the lunatic. The issues were tried at the last Summer Assizes for the county of Salop, before Mr. Justice Williams and a special jury, and the jury found a verdict for the Plaintiffs upon both issues. A motion for a new trial having been refused by the Vice-Chancellor, the application was now renewed. The case was very fully argued by Mr. Serjeant Talfourd, Mr. Barber, Mr. Wigram, and Mr. R. V. Richards, in support of the motion; and by the Attorney-General, Mr. Knight, Mr. Temple, Mr. Maule, and Mr. Whateley, for the Plaintiffs. In the course of the argument a great variety of collateral and subordinate points were raised and contested by the counsel on both sides; but the question principally discussed, and the only one to which it is considered necessary to advert here, related to the admissibility of certain evidence which had been objected to at the trial, and which the learned Judge who presided had, as the Defendant contended, improperly allowed to go to the jury. The evidence objected to was of two kinds, and had reference to two distinct parts of the Plaintiffs' case. [342] The descent of the original Plaintiff from a daughter of Thomas and Elizabeth Moreton was clearly made out; but in order to establish his claim, it was necessary also to shew, first, that the testator was descended from Edward, son of the same Thomas and Elizabeth, and was the last survivor of that branch of the family ; and, secondly, that when Robert Jones Moreton died, in the year 1801, Robert Moreton, of Bilston, was the testator's heir at law. The first point was proposed to be established by secondary evidence of the contents of a mural inscription which had for many years existed in what was called the Moreton chancel, in the parish church of Shiffnal, but which had been washed over and effaced in the year 1810, when the church underwent considerable alterations and repairs, and when the Moreton chancel was enclosed and added to the vestry. It appeared that the Moreton family had for a long period been possessed of a mansion-house and other property in the parish of Shiffnal, and that several of its members had resided there, and had been buried in the Moreton chancel, which, until the alterations referred to, had formed a recess, opening by an archway into the great chancel. The inscription was not engraved, but was written or painted upon the plaster, in a material resembling lamp black, and it purported to give the history of that branch of the family of Thomas and Elizabeth Moreton of which the testator Edward Moretoii was alleged to be the last surviving descendant. To prove the contents of this inscription, three paper writings, which were alleged to be copies of it, and which were all substantially the same, were produced. One of them, which was distinguished by the name of Merry's copy, was proved to be in the handwriting [343] of one Morry, a schoolmaster, who died in the year 1775, and to have upon it an indorsement in the handwriting of Moreton Aglionby Slaney, an 1 MY. ft OR. 8M. SLANEY V. WADE 407 attorney, who was a first cousin of the original Plaintiff, and who died in the year 1813. Another, which was called Moreton Aglionby Slaney's copy, was proved to be wholly in the handwriting of that gentleman, and it was indorsed by him, "Monuments in the Mareton chancel of Shiffnal church, copied in February 1796." These two copies came from the possession of the Slaney family. The third, denominated Adam's copy, was taken in the year 1810, shortly before the repairs in the church were commenced, by a person of the name of Adams, assisted by one Aimes, the parish clerk, under the direction of the then vicar of Shiffnal, who was since dead. It had been originally written in pencil, and the letters were afterwards traced over with ink by tha vicar. Aimes was examined in the chancery suit; but he died before the trial of the issues, and his deposition was read at the trial. Adams was called as a witness at the trial, and proved the facts above stated with reference to the time and manner of making the copy. The inscription in question, according to the copy made by Moreton Aglionby Slaney, was as follows :- "Thomas Moreton, Esq., married Elizabeth, daughter of Edward Moreton, of Engleton, Com. Stafford, Esq., and had issue Richard, Edward, Thomas, and Robert, and six daughters. The said Thomas Moreton, the father, was here buried, the 15th day of July...