Welch v. Worsley (330 Ill. 172, 1928)

Mr. Justice Duncan

delivered the opinion of the court:

Charles F. Swigart died in Chicago on October 17, 1917, leaving an estate consisting of real estate stipulated to be of the value of $300,000, and it is stated in the petition for letters of administration that the personal property is of the value of not to exceed $50,000. On October 18, 1917, the public administrator was appointed administrator of the estate by the probate court of Cook county, ©n October 22, 1917, proof of heirship was made in that court showing Emma Swigart, the insane sister of the deceased, to be the sole heir of the deceased. On August 21, 1918, Ena Welch, by Henry B. Welch, her brother-in-law, hied her claim against the estate for $10,000, in which it is stated that sum was due her for services for household work, clerical work and for looking after the deceased generally, and for which he had promised to compensate her. Welch made affidavit to this claim as her agent, in which he made the statement that “she has no other claim against said estate.” On August 29, 1922, Ena filed her petition, and on December 14, 1922, her amended petition, alleging that she was born on February 4, 1869, at Chicago; that she is the lawful daughter of Swigart and her mother, Sarah Swigart, as the result of a common law marriage which was consummated by her father and mother “on or about the month of March, 1868, at Chicago;” that her mother lived with Ena’s father until she died, in 1895, and that she had been informed that some time between 1888 and 1892 a ceremonial marriage was consummated between them. She prayed in her petition that the finding of the court as to the heirship in the estate of Swigart be set aside and that she be declared to be his daughter and sole heir. After a hearing on the amended petition the probate court on July 9, 1923, found that she was not the daughter of Swigart but was the daughter of Thomas James Davis and Sarah. Saunders Davis as the result of their marriage in 1865; that she was born on Wolfe Island, in the province of Ontario, in 1866, and her petition was dismissed. She perfected an appeal to the circuit court of Cook county, in which there was a trial de novo. The circuit court set aside the finding of the probate court and on May 30, 1924, found and adjudged that Ena was the daughter and sole heir of Swigart, as set forth in her petition. From the judgment of the circuit court an appeal was prosecuted by A. A. Worsley and William J. Roach, conservators of Emma Swigart, to this court. This court for want of jurisdiction of the cause transferred the appeal to the Appellate Court for the First District. (Worsley v. Welch, 317 Ill. 90.) That court reversed the judgment of the circuit court and made this finding of facts: “Charles F. Swigart and Sarah Saunders Davis did not enter into a common law marriage in 1868 or at any other time; that the petitioner, Ena Welch, was not born in Chicago in 1869 as the daughter of Charles F. Swigart, but that she was born on Wolfe Island, in Canada, in 1866, as the daughter of Tom Jim Davis, and that said petitioner is not the heir of Charles F. Swigart, deceased.” The petition of Ena for a writ of certiorari was allowed by this court, and a writ of error was awarded to review the record and judgment of the Appellate Court.

The order of the probate court denying the prayer of the petition of plaintiff in error and dismissing it was a final, appealable order, and under section 11 of the Probate Court act (Smith’s Stat. 1923, p. 624; Cahill’s Stat. 1923, par. 341;) the appeal was properly taken to the circuit court. Sebree v. Sebree, 293 Ill. 228.

Defendants in error contend that the finding of facts made by the Appellate Court is, under section 120 of the Practice act, final and conclusive, and that this court has jurisdiction to review the record only on questions of law. On the other hand, plaintiff in error contends that the proceeding in the probate court to find a new table of heirship partakes of the nature of a proceeding in chancery and that the finding of facts by the Appellate Court is not conclusive on this court. The jurisdiction of this court in chancery-cases to review judgments of the Appellate Court on questions of fact is not disputed and there can be no question that this court has such jurisdiction, (Fox v. Simons, 251 Ill. 316,) but defendants in error further contend that such a proceeding to make a new finding of heirship is purely a statutory and in no respect a chancery proceeding. They rely on Sebree v. Sebree, supra, where this court said: “The proceeding under the statute relating to proof of heirship or to allow an award is informal. No provision is made for an answer nor any pleadings had. The proceeding here was purely statutory and is not a suit or proceeding at law or in chancery within the meaning of section 8 of the Appellate Court act, and the appeal, therefore, was properly taken from the probate court to the circuit court.” The language quoted was used in construing section 8 of the Appellate Court act, and the holding was that the proceeding was not a suit or proceeding at law or in chancery within the meaning of section 8 of the Appellate Court act and that the appeal was properly taken to the circuit court. There was no question in that case of the right or power of this court to review the facts in such a proceeding to set aside a finding of heirship under section 120 of the Practice act.

Whether or not the finding of facts by the Appellate Court in this case is conclusive on this court depends upon the question whether or not, in the determination of plaintiff in error’s petition to set aside the former finding of heirship and have herself declared the sole heir of Charles F. Swigart, the probate court was called upon to exercise chancery powers. The power of the probate and county courts to make findings of heirship was expressly conferred upon such courts by an act passed in 1909, entitled “An act to render valid the ascertainment heretofore made by any of the probate courts of this State and declaring the heirship of deceased persons, and authorizing such courts hereafter to ascertain and declare such heirship and for other purposes relating thereto.” (Smith’s Stat. 1923, chap. 3, secs. 1, 2, 3, p. 24; Cahill’s Stat. 1923, chap. 3, secs. 1,2, 3.) The three sections of that act are as follows:

“Sec. 1. That where heretofore any courts of this State having and exercising probate jurisdiction, who may have during the progress or pending of the administration of an estate, or when administration was found either not required or necessary, or was not granted, ascertained, and by their judgment order entered of record therein, declared the heirship of any deceased person, then such ascertainment and declaring the heirship is hereby validated.

“Sec. 2. That all courts of this State, having and exercising probate jurisdiction, are hereby declared authorized and jurisdiction is hereby given to them, at any time during the progress or pendency of the administration of the estate of any deceased person, or prior to the probate of any will, without further notice; or if there is no grant of administration, then upon such notice given to all whom it may concern, in such manner as the court may direct, to ascertain, and by their finding and order to be entered of record in the court, declare the heirship of any such deceased person. The evidence upon which such finding is made shall be reduced to writing, either in narrative form or by questions and answers, and certified by the court, and shall be filed by the clerk of said court and remain as a part of the files in said cause.

“Sec. 3. That such orders of the court, declaring such heirship, whether heretofore or hereafter made, shall be deemed and taken as prima facie evidence of such heirship: Provided, that any other legal mode of proving such heir-ship may be resorted to in any place or court where the question may arise by any party interested therein.”

It is to be noted that section 2 of the act provides that the evidence upon which a finding of heirship is made shall be reduced to writing, certified by the court, filed with the clerk and remain as a part of the files in the cause. In this particular the proceeding partakes of the nature of a proceeding for the perpetuation of testimony, which is distinctly a chancery proceeding.

In Townsend v. Radcliffe, 44 Ill. 446, an administrator had filed his final report showing a balance on hand for distribution. The county court approved the report and ordered the balance in the administrator’s hands paid to the persons legally entitled to receive it. The heirs-at-law of the deceased filed a bill in chancery against the administrator for discovery of all property belonging to the deceased at the time of her death, for an accounting, and for an order determining the owners of deceased’s property and for. distribution. A demurrer to the bill was sustained by the circuit court. On appeal the judgment of the circuit court was reversed by this court, holding that there is no tribunal more competent to settle such questions than a court of equity, which has a paramount jurisdiction in cases of administration and the settlement of estates and may control courts of law in their action in their settlement and distribution.

In Grattan v. Grattan, 18 Ill. 167, this court held that a court of chancery could properly entertain a bill by one of three children of an intestate to compel the two minor children of the intestate to bring into hotchpot advancements received by them during the lifetime of the intestate or be barred from participating in the estate, because courts of equity have a paramount jurisdiction in cases of administration and settlement of estates and also have plenary jurisdiction over the persons and estates of infants.

In Rawson v. Corbett, 150 Ill. 466, and Chency v. Roodhouse, 135 id. 257, this court held that the action of the county or probate court in passing upon a guardian’s account is, in substance, a chancery proceeding, and that the rule that the findings of fact by the Appellate Court are conclusive on writ.of error to the Supreme Court has no application. The holding was the same in a case where the correctness of an executor’s final report was challenged. (Bliss v. Seaman, 165 Ill. 422.) In all three of those cases there was an appeal from the judgment of the county court to the circuit court and from the judgment of the circuit court to the Appellate Court, and the judgment of the Appellate Court was reviewed by this court.

In Henry v. Caruthers, 196 Ill. 136, this court held that the enforcement of a co-partnership claim against the personal representative of a deceased partner is upon equitable principles, only, and that the adjudication of such a claim must be regarded as an equitable proceeding so far as the question of power of the Supreme Court to review the facts is concerned. In Estate of Ramsay v. Whitbeck, 183 Ill. 550, the law was held to be that if an allowance of a claim against an estate requires the exercise of equitable powers by the probate court the Supreme Court may review both facts and law upon appeal from the Appellate Court’s judgment affirming the allowance of the claim. There was an appeal in each of the foregoing cases from the judgment of the county court to the circuit court and from the judgment of the circuit court to the Appellate Court, and the judgment of the Appellate Court was reviewed by this court.

Where a claim filed against an estate is a legal claim, purely, the decision of the Appellate Court on such a claim on appeal from the circuit court on controverted questions of fact is final. On the- other hand, where the allowance of a claim against an estate requires the exercise of the chancery powers of the probate court and there is an appeal to the circuit court, an affirmance of the judgment of the circuit court by the Appellate Court is not conclusive as to questions of fact and such questions of fact may be reviewed by this court. Starrett v. Brosseau, 208 Ill. 408; Schell v. Weaver, 225 id. 159; Zeigler v. Illinois Trust and Savings Bank, 245 id. 180.

While in a probate or county court the proceeding to make a finding of heirship is purely statutory, still, in such proceeding the county court exercises chancery powers,— i. e., powers inherently vested in courts of chancery, — and the procedure is as in chancery. Therefore, on a writ of error to the Appellate Court this court has before it for decision all questions of law and fact involved in the case.

Some time before the Civil War the Saunders family came to America and settled at Cape Vincent, New York. The maiden name of the mother of plaintiff in error was Sarah Saunders. She was born in 1845 in the Jersey Islands, England. Her mother’s name was. Ann Saunders. Her father was a soldier in the Civil War and was killed during that war. She had two brothers — Alfred, who testified in this case for plaintiff in error, and Joseph, who died in 1912, leaving a widow, who re-married after his death and testified as a witness for defendants in error as Emma Boyden. About one mile from Cape Vincent, in the St. Lawrence river, is Wolfe Island, which is about twenty-two miles long and seven miles wide and is the largest of the Thousand Islands. It is Canadian territory. On the Canadian side of the river at this point is the town of Kingston, in the province of Ontario. In 1865 there lived on Wolfe Island Aunt Sally and Uncle Bill Davis, who kept a tavern, a small store, where children who attended the school nearby made their purchases, and a dance hall, where the young people of the island frequently congregated. The Davis family was well known on the island. Uncle Bill was quite proficient as a fisherman and was often called Trouter Bill. One of the three sons of Aunt Sally and Uncle Bill was Thomas James Davis, who was known as Tom Jim. Tom Jim was well known and well liked on the island. In the evidence he is characterized as a good mixer and “a jolly good fellow,” who had a reputation as a good clog dancer. The two brothers of Tom Jim were named William and Richard. Both are dead. William had three daughters, whose names are 'Mary Stevenson, Ellen Hedderson and Sarah Kitchen. All of these daughters were witnesses for defendants in error. Richard Davis had a son, James H. Davis, now a resident' of Chicago, who, as well as his daughter, Margaret McGregor, testified as a witness for defendants in error.

In the fall of 1865 Tom Jim Davis and Sarah Saunders were married. In December of that year Tom Jim was stabbed and killed in a fight in a saloon in Cape Vincent. His body was taken to Wolfe Island and laid out on the floor of the dance hall at Aunt Sally’s. Defendants in error claim that some time during the first half of the year 1866 plaintiff in error was born at Aunt Sally’s to Sarah Davis (Tom Jim’s widow) as the daughter of Tom Jim, and that at Aunt Sally’s request she was named James Ena, after Tom Jim, and was so christened at the school house nearby in 1866. For some time after Tom Jim’s death Sarah continued to live with Aunt Sally and at one time engaged in the millinery business at Marysville, a small settlement on Wolfe Island a few miles from Aunt Sally’s. Defendants in error further claim that Sarah went to Chicago with her child, Ena, in the latter part of 1870 or some time later. Not long after her arrival in Chicago she met the deceased, Charles F. Swigart, and they soon began living together and continued to do so until Sarah’s death, in 1895, without ever being married. On the other hand, it is the claim of plaintiff in error that her mother, after engaging in the millinery business at Marysville for a while after the death of Tom Jim, went to Cape Vincent to live with her mother, where she remained until 1867, when, in company, with a friend, she went to Chicago, where she met Swigart and began living with him as his wife. She further claimed that her mother and Swigart entered into a common law marriage, and that she, plaintiff in error, was born of that marriage on February 4, 1869. It is also claimed by her that between 1888 and the time of her mother’s death, in 1895, a ceremonial marriage was entered into between her mother and Swigart. The questions of fact as to whether or not plaintiff in error is the daughter of Swigart and his legitimate child and heir are thus presented.

Before considering the evidence we will dispose of a question of law raised in the circuit court and presented for decision in this court by the assignment of errors on the admissibility of certain so-called pedigree evidence.

On behalf of defendants in error there was admitted by the circuit court, over the objections of plaintiff in error, evidence of statements made by deceased members of the Davis family and one deceased member of the Saunders family that plaintiff in error is the daughter of Tom Jim Davis. The statements testified to were made by the mother of Tom Jim, Aunt Sally, his two brothers, William and Richard Davis, and Joseph Saunders, a brother of Sarah Davis. It is the contention of plaintiff in error that the circuit court erred in admitting evidence of those statements. Her contention is that neither her pedigree nor the pedigree of the Davis family is involved but only the pedigree of Swigart. The main question in this record is the paternity of plaintiff in error. She contends that she is the daughter of Swigart. She introduced evidence of declarations of deceased members of the Swigart family to prove that she is. That was proper evidence. On the other hand, defendants in error contend that she is not a member of the Swigart family but is a member of the Davis family, and they introduced evidence of the statements of deceased members of that family and of a deceased member of the Saunders family to prove that she is a member of the Davis family. That evidence was also properly admitted. Defendants in error were not limited to negative evidence tending to show that plaintiff in error was not a member of the Swigart family, but were also entitled to show that she was not a member of that family by showing affirmatively, if they could do so, that she was a member of the Davis family. To make that showing the court properly allowed them to introduce pedigree evidence of the Davis family relating to plaintiff in error’s paternity and tending to establish that she was a member of that family. In Jarchow v. Grosse, 257 Ill. 36, this court held that the general rule is that before the declarations of persons can be admitted to prove pedigree it must be established that the declarant is dead, that the declarations were made before the controversy arose, and that the declarant was related by blood or marriage to the family to which the declarations refer. It is further held in that case that such evidence is primary and not secondary, and is admissible on the ground that it is the best obtainable; that it is not to be excluded by the fact that living members of the same family can be examined on the same point, and that it is not to be excluded because the facts are not ancient but extends also to facts which have recently transpired. It is undisputed that Aunt Sally and William and Richard Davis were blood relatives and members of the same family as Tom Jim Davis, the alleged father of plaintiff in error, and that they died long before the controversies in this case arose. Joe Saunders was the brother of Sarah Davis, the mother of plaintiff in error, and it is admitted that she married Tom Jim Davis. Saunders was therefore related to Tom Jim by marriage and was a blood relative of his wife, the mother of plaintiff in error. He died long before this controversy arose. The declarations of Joe Saunders, Aunt Sally and William and Richard Davis concerning the family of Tom Jim and his wife and the paternity of plaintiff in error were competent evidence.

We do not think it is necessary to discuss the many cases cited by plaintiff in error in this case. In our judgment none of them support the contention made. Where the question involved is the right of succession to certain property in a certain family, evidence of declarations made by deceased persons relating to that family must, to be admissible, be shown to have been made by persons related by blood or marriage to that family. The evidence objected to in this case by plaintiff in error did not refer to the Swigart family but to the Davis family. Defendants in error had the same right to introduce evidence tending to show plaintiff in error is the daughter of Tom Jim Davis that plaintiff in error had to show by such evidence that she is the daughter of Swigart.

Defendants in error also make the contention that the circuit court erred in excluding as evidence certain exhibits offered by defendants in error, to-wit, the certified copy of the death certificate of Sarah Swigart and a certified copy of the marriage license of Ena J. Davis and James A. Welch, both of which were certified by the county clerk of Cook county; also two letters written by Archibald Staley to Daniel Staley, both of whom were witnesses in this case, and which letters it is claimed by defendants in error tend to discredit Archibald Staley; further, that the circuit court erred in unduly restricting the cross-examination of plaintiff in error, and otherwise erred in rulings on the admission of evidence to their prejudice. There is merit in most all of these contentions, but in view of our decision it will not be necessary to consider any of them at this time.

As we view this case the principal and controlling question of fact is whether or not plaintiff in error is the daughter of Swigart, as she contends, or the daughter of Tom Jim Davis, as defendants in error contend. Stated in another form, the controlling question in the case is, was plaintiff in error born in Chicago in 1869 as the daughter of Swigart, as she contends, or was she born in 1866 on Wolfe Island as the daughter of Tom Jim Davis, as defendants in error contend. Whether or not Sarah Davis and Swigart were married is immaterial if the conclusion from the evidence is that plaintiff in error is not the daughter of Swigart. If she is not his daughter she cannot be his heir. That she is Sarah Davis’ daughter is not disputed. The testimony for plaintiff in error tending to establish the fact of her birth in Chicago in 1869 as the daughter of Swigart consisted chiefly of the evidence of residents of Chicago who knew Swigart and Sarah Davis when they lived together there. The names of her witnesses and the substance of their testimony in chief bearing on those questions here follow :

Helen Hayes is a widow, sixty-seven years of age. She went to 214 Taylor street, Chicago, to live “from 1861 to 1863” and continued to live there until 1881. Swigart moved into the Carroll house, at 243 Taylor street, “about 1869.” A baby was born there in February, 1869. The baby was called Ena and was quite small when in May the Swigarts moved to the Pasdeloup house, on Halsted street, from which they moved right after the Chicago fire. Witness heard Swigart call Sarah “my wife” a number of times. The last time she saw Ena was at the Pasdeloup house about the time of the ChicagQ fire (1871). Ena was then about eighteen months old.

Joseph Scholl, sixty-five years old, was born in 1859. When he was between nine and ten years old he delivered milk along West Taylor street. Swigart lived either at 239 or 241 Taylor street. Witness delivered milk there in 1869. There was a baby born there in 1869 close on to spring, and when he delivered the milk another lady took it and said there was a newcomer in the house. He later saw the baby with the woman that Swigart lived with, who was called Mrs. Swigart. The first time that he saw the baby was in Februax-y or March, 1869.

Michael Wasserman, seventy-eight years of age, was a resident of Chicago. He knew Swigart in Chicago. He and Swigart belonged to a singing society in 1868 which convened each week at Turner hall. He lived a short distance from Swigart on Taylor street in 1868 and 1869. Swigart said befox'e the birth of the child, “I think I am going to have a boy.” Swigart at Tuxmer hall, after the child was born, bought a keg of beer in celebration of the event. He remembered the occasion of the child’s birth because Swigart came to his house to get his wife to stay with Sarah until Swigart could get a midwife. The child was a girl and was called Ena. Swigart and Sarah moved to the Pasdeloup house, on Halsted street, in December, 1869. On cross-examination he admitted that he had served a term in the penitentiary on a conviction for “boodling,” as county commissioner of Cook county. He said: “I didn’t get anything. * * * It was a newspaper conviction.” He admitted that he was “broke” when convicted, and added, “I am broke to-day.” The midwife was related to his wife and is dead.

Joseph Lawler, seventy-five years old, was a resident of Evanston. He knew Swigart from 1868 or 1869 until he died. Witness was in business for sixteen years at 323 South Halsted street, beginning in 1868. Swigart bought cigars from him, and “before the big fire” (October, 1871,) came to his place of business and said: “Joe, I am a daddy; come on; I know you don’t drink but I want you to have a good cigar; I am a daddy, Joe; my wife had a little girl.”

Joseph Danziger, seventy-nine years old, was born in 1845. EH also belonged to the same singing society as Swigart. He remembered the National Singing Pest held in Chicago in 1868. He had a conversation “during that period” in which Swigart said they would hear something new pretty soon; “aha, we will get a boy; another singer coming;” that later Swigart said it was a girl, and when they all laughed he bought a keg of beer. He saw Swigart later with a woman and a baby and Swigart said the woman was his wife.

James Arnold, eighty-four years old, a resident of Chicago, was born in Cape Vincent, New York. He came to Chicago in 1865. Swigart drove a team for him between 1868 and 1871. One morning witness and Swigart started out with a load. Swigart seemed sleepy and said, “Well, we had a baby born at our house last night; I couldn’t get much sleep.” Swigart said the baby was a girl and told witness that its name was Ena or Lena. Witness thought it was Ena. In 1873 witness at his factory at Oakley street was introduced by Swigart to a lady as his wife. Swigart had the lady and a small girl with him and told witness that the little girl was his daughter, Ena. Witness did not know Mrs. Swigart was a Cape Vincent girl at that time and was Sarah Saunders from Cape Vincent. He saw Sarah again in 1883 and also Ena, who “might have been fourteen or fifteen at that time.” Swigart was twenty-three years old when witness first met him, in 1866.

Wallace W. Joadwine, seventy-two years old, was born in Cape Vincent. He had lived in Chicago since 1873. He knew Tom Jim Davis but no other members of the Davis family. Sarah Davis came to Chicago in October, about 1866, on the Northern Transportation Line of steamers. She had been living with her mother at Cape Vincent for two or three months before she came to Chicago. He would not swear just the year she left Cape Vincent. She had no child when she left for Chicago. He saw her every two or three weeks before she left for Chicago. He next saw her in 1871 when she returned to Cape Vincent to visit her mother. She then had a little child with her. She said she was married to a man named Swigart and had the little girl. In 1873 witness and James Arnold and Swigart had a conversation at Arnold’s box factory, in Chicago. Witness introduced Sarah to Arnold as Swigart’s wife and Sarah introduced Swigart and Ena to Arnold as her husband and child. Swigart then said to Arnold: “Jim, you know when this child was born; I was working for you; this is my girl; I was working for you when she was born, when we lived down on South Halsted street.” Arnold replied: “Yes, I remember you coming up there late one morning and me saying, ‘Why, you are late this morning, Charley,’ and you replying, ‘Yes, I had a new arrival at my house last night; I had a little girl born at my house.’ Swigart then bought the drinks.” Witness further stated that during a campaign in Chicago in which Swigart was running for alderman he said to Swigart, “Charley, it is rumored over at the headquarters that you and Sarah isn’t married; I always supposed you were, but it is said over there that you are not married, and I don’t think that is a good way to live; now, they are going to beat, you for alderman on that ground — that you are living with a woman without being married to her;” that Swigart replied: “Well, I want to be elected, Joadwine; what am I to do ?” Witness then said: “Go out and marry this woman and legalize her as your wife and the child as your daughter and then you can be elected, otherwise you can not.” Swigart replied that he would do it, and in a week or two afterwards met witness and said: “The services has been performed and we are married; we are man and wife.” He saw Sarah afterwards, and she said, “We are married.” Swigart was elected alderman in that campaign and witness thought it was in 1879 or 1880, and Swigart served as alderman but one term, and that was during the World’s Fair in Chicago. On cross-examination he stated that he was probably mistaken as to the year when Swigart’s campaign for alderman occurred, and further said that the campaign and above conversation were probably in 1889. No explanation is given by this witness of the recital in 1873 of a conversation which took place several years before. Arnold did not refer to it in his testimony, although he did testify to the original conversation.

Eight other witnesses who lived in Chicago, Silas A. Corlett, Tibbie Church, Jennie Meyer, Bazil W. Veirs, Mrs. Henry B. Welch, Henry F. Maiwurm, Fred E. Johnson and John H. McNally, testified that they heard Swigart say that Ena was his .daughter. Corlett, Church and Mrs. Welch further testified that plaintiff in error called Swigart “pa” and “daddy.” Maiwurm testified that he was post-master at Forest Park. He had known Swigart since 1908. Swigart was a director of the Forest Park Amusement Company and witness was vice-president of that company. Witness had been in the saloon business for twenty-five years and a member of the Liquor Dealers’ Association for thirty-five years. He asked Swigart how much money he was worth. Swigart said, “I guess about $500,000.” Witness said to Swigart: “Why don’t you give this job to some contractor; you have got nobody to leave the money to when you die.” Swigart said, “Oh, yes.” Witness replied: “No, you ain’t; you have no children.” Swigart said: “Yes, I have a daughter.” Witness said: “No; that is your step-daughter.” Swigart then hit on the wall and said: “No, it ain’t; that is my own daughter; my flesh and blood.” Witness asked Swigart why he didn’t declare she was his daughter, and Swigart said he had some good reasons, but did not tell the witness what they were. Witness did not give the dates of these conversations. Tibbie Church and Mrs. Jennie Meyer also testified that they each wrote letters for Swigart during the last illness of his wife, and also after her death, to plaintiff in error, who was then away from Chicago. Tibbie Church stated that Swigart addressed plaintiff in error in those letters as, “My Dear Daughter,” and concluded them, “Yours affectionately.” Mrs. Meyer stated that Swigart addressed plaintiff in error in those letters as, “My Dear Daughter Ena,” and concluded them with the words, “Lovingly, your father, C. F. Swigart.” Oliver Russell, a witness whose other testimony is hereinafter set forth in this opinion, also testified that he wrote letters to Ena for Swigart during this same period, in which Swigart addressed her as “Dear Daughter,” and concluded them with the words, “Your loving father, Fred.” None of these letters were produced in court, but according to plaintiff in error’s statement they had all been destroyed. Bazil W. Veirs, who was an attorney, testified that about a year before Swigart died he spoke to witness about drafting a will for him, and Swigart said in discussing the disposition of his estate, “I think I ought to give her [plaintiff in error] about $50,000.” Witness made an appointment with Swigart to meet him at his flat and draft the will, but when they met, Swigart was intoxicated and witness did not prepare the will. He advised Swigart to make a will because “there was some question about his marriage; if he wanted to take care of that girl he better do so by will.” Mrs. Eleanore Capps-Hostler and Mrs. Clara Winteroth, both of Chicago, testified that they heard Louise Swigart in her lifetime refer to Ena as Swigart’s daughter. The record shows that Swigart married Louise Haas in 1901 and that she died in 1916. Mrs. Winteroth further testified that she asked Swigart what he was going to do with his money and why didn’t he live and enjoy it, and he answered that he had taken care of his daughter, Ena, and she would have what he had left. Louise said, “Ena and I will never have any use out of Charley’s money until he dies, because he is so tight with his money.”

Oliver Russell, fifty-nine years old, was born in 1865. In 1872, when he was seven years old, he started to work for Swigart. Ena was then “just a little child — just starting to walk around,” and was called by Swigart “Baby” and “Ena.” She started to school in 1875, “when she must have been six years old.” She was called Ena, and he asked Swigart “how it was Ena would always go as Ena Swigart and they call her Ena Davis.” Swigart answered, “That was the woman’s [Sarah’s] foolishness — because the child would be considered illegitimate, or something.” Witness further stated: “From the first time I met Ena, in 1872, until the time she went to the Brown school, in 1875, I talked to her two or three times a week. She was a nice, plain talker. I noticed a change in her manner of speech after they moved to Fulton street and she started to go to the Hayes school. That was the next year. The change was a hesitation, kind of; could not talk plain; start to talk and hesitate; she could sing but she could not talk good.” He noticed this change in her speech after she had scarlet fever.

Alfred Saunders was born in i860. He is a section foreman for the New York Central and lives at Cape Vincent. Sarah Saunders was his sister. She went to Chicago in 1867. She lived with her mother in Cape Vincent from the spring of 1867 until the fall of that year, when she left for Chicago. She had no baby with her then. In 1871 she returned to Cape Vincent for a visit. She “went by the name of Swigart” and had with her a child called Ena, who was “about the matter of two years old.” Witness visited Swigart and Sarah in Chicago in 1881. Ena then “appeared to be twelve or thirteen years old, such a matter.” Swigart referred to Ena as “our daughter.”

Francis E. Howard was born in 1865. He went to school with Ena in the fall of 1879. She then appeared to be ten years of age. He was possibly five years older than Ena, judging from her size. Swigart told him that Sarah was his wife and Ena was his daughter. Witness was then fourteen years old. Swigart spoke of Ena as his daughter many times.

N. C. VanSlooten had lived in Cook county forty-two years and had known Swigart since 1879. When Swigart was a candidate for alderman of the Thirteenth ward witness was president of the First primary district and member of the committee. In that campaign Dan Campbell told witness there was some talk about Swigart not being married. Witness said: “Man, that is no such thing; he told me he was married; I have been in his house and he introduced me to the woman and said it was his wife.” Swigart came to a meeting and satisfied them that he was married. “So far as I know, he took a piece of paper out of his pocket and showed it to them.” Swigart said at that meeting: “Why do you want to go to work-and care for me; I got a daughter and I got a wife.” Dan Campbell, George McGregor, Bill Williams and Si Corlett, leaders in the Thirteenth ward, were at the meeting. They are all dead except Corlett. The contents of the paper displayed by Swigart are not disclosed by anything in the record.

Alfred Winteroth, sixty-two years old, was born in i860. He became acquainted with Swigart in 1913. He and his wife and Swigart and his wife (Louise) visited together. He talked with Swigart two or three times about his daughter, and Swigart said he had some place to leave his money when he died. “I got a little girl — a little daughter — in California; she is an actress; she shall take care of it for me.”

John J. Taylor and Charles Rice, both of whom were employed by Swigart, testified tliat he told them that his daughter, Ena, was born in Chicago, and that he frequently referred to her as his daughter. Rice had been employed by defendants in error. On cross-examination he stated: “Because of Mr. Worsley [one of defendants in error] falling out with me as I stated, that determined me to come in as a witness, and I then went to Mr. Trainor’s office. [Trainor was an attorney for plaintiff in error.] That was the determining factor that caused me to be a witness.” This witness was recalled and further testified, in substance, that when employed by the conservators he worked upon buildings owned by Worsley, and that he charged a bill for labor and lumber amounting to $146 for one of Worsley’s buildings, and also a bill for hardware for another of Worsley’s buildings, to the Swigart estate. These charges were made against the Swigart estate by him at Worsley’s directions. Worsley testified and denied the statements of Rice. He said he told Rice to charge bills for materials and labor on his buildings to the Swigart estate. He produced his personal check for the bill for lumber for $146.37, and stated that he paid bills for the estate by checks signed by himself as conservator. William J. Roach, the other conservator, testified in rebuttal of Rice’s testimony that Swigart told him that Ena was born in Chicago and was his daughter, that he had a conversation with Rice after Rice had given that testimony. He asked Rice, “How the hell is it you didn’t tell me about the daughter stuff that you testified to in the probate court in all our conversations? You always told me Swigart referred to her as his step-daughter.” Rice replied: “I know I did; Swigart did refer to her as step-daughter, but I heard him say daughter when he was drunk, and I was willing to do anything to beat Worsley.” George D. Kemler, manager of the Western Lumber Company, identified the books of the lumber company showing a charge of $146.37 for lumber to the Swigart estate, care of A. A. Worsley. He said the bill was paid by a check signed by Worsley. Rice admitted on cross-examination that Swigart always referred to Ena as his step-daughter when talking to strangers. He heard Swigart call her step-daughter a number of times.

Lucy A. Slosson, seventy-six years old, lived near Swigart and Sarah in 1873 and for a few years thereafter. Ena had a birthday in 1873 and Sarah said Ena was four years old. Ena was four years younger than witness’ child that was born in 1865. In 1875 or the fall of 1874 Swigart came into a store kept by witness and bought a knit cap and jacket for Ena just before she started to school. Sarah told witness that her first husband’s name was Davis and that he was killed. In 1874 or 1875 Ena had scarlet fever, and afterwards there was a change in her speech.

Marie L. Charlette, seventy-seven years old, knew Swigart, Sarah and Ena in Chicago. Ena was six or seven years old when she first knew her. About 1877 Sarah told witness that her girl was born in 1869 — about a year after witness’ boy was born, in 1868. On cross-examination witness said she first knew Sarah as Mrs. Davis and thought Swigart was her brother.

Lillian Swaufield, sixty-five years old, born in 1859, knew the Swigarts when they lived in the Pasdeloup house. They moved into that house in 1869, and there the baby, Ena, “appeared to be four or five months old.” On cross-examination she stated: “The baby had a boy’s name; I think it was John; it might have been John or James; I am not positive; by best recollection is that it was called Ena James or James Ena; we always called her Ena; I have talked to the mother about the child; I heard her talking to my mother when she was sewing for her; she [Sarah] said that she was married before and her first husband got killed, I think, a few weeks or very shortly after they got married, and she was living with her mother-in-law ; that she told her mother-in-law that if she ever married and had another child she would name it after her first husband, whether it was a girl or a boy.”

Mary Moore, born, in 1857, knew Swigart and Sarah when they lived in the Pasdeloup house. (She gave no date.) She often saw Sarah going to the grocery store with a baby. She was in the Swigart flat only once, when Sarah was making a hat which she said was for her baby to wear.

Marie E. Cough, seventy-seven years old and a resident of Milwaukee, Wisconsin, was born in Cape Vincent. She and Sarah Saunders were quite friendly in Cape Vincent and visited each other often. Sarah married Tom Jim Davis in 1865. He was killed in that year. Before Sarah left for Chicago she returned to Cape Vincent from Wolfe Island and lived with her mother. Sarah left for Chicago “in October, or somewhere along there; I think it was the next fall after Tom Jim was killed.” Witness never saw any signs of approaching maternity in Sarah after her marriage with Tom Jim. Sarah never had a child by Tom Jim. She never had a child with her when she left for Chicago. She saw Sarah again in 1871, when she came to Cape Vincent for a visit. She was known as Mrs. Swigart. She had a baby girl with her, about a year and a half old.

Marie E. Yates, born in 1852, lived at the Pasdeloup house, on Halsted street, when Swigart and Sarah moved there before the Chicago fire. Sarah had with her a baby three or four months old, named Ena, when witness was sixteen years old. She identified pictures of Sarah and Ena as the pictures of the woman and child she saw at the Pasdeloup house.

Julia Neagle, born in 1862, sixty-two years old, lived near the Pasdeloup house from 1866 to 1886. Before the Chicago fire she often went with her mother, who did sewing for Sarah, to the Swigart home. Sarah, Swigart and the child lived together in the Pasdeloup house, and when she first knew it “the child was a year and a half old — just beginning to walk.”

Fred Arnold, born in 1868, had lived in Chicago fifty-one years. He went to school with Ena in 1875 and was in several classes with her at the Hayes school. He knew her as Ena Davis and also as Ena Swigart. She was about his age, or five or six months younger. Witness was seven years old when he started to school. He knew Ena a year or more before she started to school. He first knew her as Ena Swigart and when she started to school knew her as Ena Davis.

Chirstine Bohan, born in 1863, said that “between 1869 and 1870,” when witness was “around between six and seven years old,” she held a child on her lap at the Pasdeloup house, 417 South Halsted street, and let it fall. The child was not more than two years old. The child’s mother was called Aunt Sarah. She remembered the incident because she let the child fall. She didn’t know “whether it was in Swigart’s house or not,” because she didn’t remember the name.

Frank B. Gay, born in 1867, went to school with Ena when he “was possibly six years old.” He could not recall the year. He believed she was a “couple of years” younger than he. I knew her “by the name of Ena Swigart and Ena Davis.” He did not remember to what grade he belonged in school when he first met Ena, but thought he was in the sixth grade.

Stephen M. Major, born in 1870, met Ena “on the sidewalks in front of our houses; that was probably in 1878, 1879 or 1880.” She appeared to be “a year or so older than I; I don’t know.” He played with Ena. He heard Swigart refer to her as his daughter.

Mrs. Elizabeth Best, sixty-eight years old, born in 1855, before the Chicago fire knew Swigart and his wife — “that is, I knew who she was.” She saw the wife in Turner hall “sometimes every week, sometimes only once in two or three weeks.” She saw a baby with Sarah as often as she saw Sarah. In the early summer before the Chicago fire the báby appeared to be six months old.

Plaintiff in error testified under the name of Ena Welch that she lives at 51 First street, Weehawken, New Jersey. Her father was Charles F. Swigart. She learned that he was her father frem what her mother told her. When she was a very little girl her mother told her to address or call Swigart father. Later, when she started to school, her mother told her he was her uncle and for her to call him Uncle Fred. She first went to school in Chicago in the fall of 1876. Her mother took her to school and told her to take the name of Ena Davis. She heard her father (Swigart) and her mother talk about where she was born. She heard him talk about her being born in Chicago. Her name was Ena Davis when she was married. She never went by any other name than Ena. She never had any other name than Ena Davis. She never went by the name of James Ena Davis, and never before she was married wrote her name as James Ena Davis. She has written her name as Mrs. James Ena Welch. She took that name after her husband died. Her husband’s name was James A. Welch. She had a hesitation in her speech in 1875 or 1876, after she had scarlet fevfr. From a time as far back as she cap remember, and up to 1887, she heard her mother repeatedly ask Swigart to marry her. The first time she ever knew that her mother and Swigart were married was in 1893, when she came home to visit them. Her mother told her during that visit that they were married. Witness further stated that she visited Wolfe Island in 1881 but never after that time. She was then about twelve years old.

The evidence for plaintiff in error and the other evidence in this record establishes it as a fact that Charles F. Swigart lived with her mother, Sarah E. Davis, in Chicago from the time he first met her there until shortly after he became a candidate for alderman, in about 1892, and that they sustained an illicit relation with each other. Plaintiff in error, to whom we shall hereafter refer as Ena, testified, in substance, that Swigart and her mother were not married previous to 1887 — the year in which she herself was married and left home; that as far back as she could remember she heard her mother ask Swigart to marry her, and her mother from that time until 1887 almost daily asked Swigart to marry her; that the first time she learned her mother was married to Swigart was in 1893, when she came from New York to Chicago to visit her; that all she knew about their being actually married was, that her mother told her on that visit they were married. There are records or writings that tend to show that Swigart and Sarah were not married before 1890. Those records or writings consist of about twenty-five deeds and mortgages executed by Swigart between July 10, 1875, and July 12, 1890, and recorded in Cook county, in all of which he was described and certified as “bachelor” or “a bachelor.” In two of the mortgages, dated October 2, 1880, and October-6, 1880, respectively, there were provisions that “in case of a bill being filed to foreclose, that Mrs. Sarah E. Davis, or other suitable person, may be appointed receiver, with power to collect the rents,” etc. It is not questioned that the Mrs. Sarah E. Davis mentioned in these mortgages was the mother of Ena and the woman with whom Swigart was then living. The evidence in the record for Ena tends to prove that Swigart and Sarah were married about 1890, and that about that time Swigart stated that he was married to her and afterwards recognized her as his wife. In 1897, 1898 and 1899, after the death of Sarah and before he married Louise Haas, in 1901, Swigart executed four other deeds, in which he is described and certified as “Charles F. Swigart, a widower.” Swigart caused to be prepared and .inserted in the Chicago Tribune an obituary notice that his wife, Sarah Elizabeth Swigart, died on November 1, 1895, and would be buried at Concordia Cemetery on November 3, at one o’clock. The records of the Concordia Cemetery show that Sarah Elizabeth Swigart was buried on November 3, 1895. Ferdinand J. Arnett, an undertaker, testified that S. A. Moffatt, the undertaker for whom he worked, made up the death certificate at the direction and upon the information furnished him by Swigart. A copy of that death certificate is in the record, reciting the full name of the deceased is Sarah E. Swigart; that her birthplace is in England; that she had lived in this State for twenty-two years; that she was a housewife; that the cause of her death was typhoid pneumonia, and that the place of her burial was Concordia Cemetery.

In view of the evidentiary facts aforesaid and other evidence in the record we would not be disposed to set aside the finding of the circuit court that the mother of Ena was the lawful wife of Charles F. Swigart at the time of her death if it were necessary for us to pass on that question. Furthermore, for the purposes of this decision we will assume that the established facts are that Swigart lived with, but was not married to, Sarah E. Davis from the time he began living with her until after he became a candidate for alderman in Chicago, and that during his- candidacy for that office he was lawfully married to her, that he lived with her from that time up t.o her death recognizing her as his wife, and that he buried her as such.

Of the witnesses above set forth as testifying for Ena, seventeen of them testified that they had heard Swigart call or refer to Ena as his daughter. One of the seventeen, Henry E. Maiwurm, testified that Swigart said to him that Ena was his own daughter — “my flesh and blood.” Three of the seventeen, one of whom was Ena’s brother-in-law, Henry B. Welch, testified that they had heard Ena call Swigart “pa” -or “daddy.” Two of them testified that they had heard Louise Swigart, his second wife, refer to Ena as Swigart’s daughter. Four of those witnesses further testified that after the death of Louise, when Swigart’s health was failing and his sight was very poor and he was unable to write letters for himself, they at his request wrote letters for him to Ena, who was then living in New York. Swigart wanted Ena to come to Chicago, and those letters written to her for him made known to her such wish. Those four witnesses in their evidence stated, in substance, that at Swigart’s suggestion they addressed Ena in the letters they wrote for him as “Dear Daughter,” or “My Dear Daughter,” and that the letters were concluded with the words, “Your loving father,” or, “Yours affectionately.” Those letters were not produced in court for the reason that they had been long destroyed by Ena, according to her testimony.

The evidence of the seventeen witnesses aforesaid to the effect that Swigart called or referred to or addressed Ena as “Daughter,” or “Dear Daughter,” and that Ena referred to him as “pa” or “daddy” or addressed him as “pa” or “daddy” is one main part of Ena’s evidence upon which the claim for her is based that she is, in fact, his daughter. If that evidence were the only evidence in the record bearing upon that question it would certainly be sufficient to establish as a fact that she is his daughter and that she is now his heir. Taking into consideration the fact that there are many witnesses whose testimony tends strongly to prove statements by Swigart that are entirely inconsistent with the idea that she is, in fact, his daughter and heir, we are led to believe that, conceding that he actually called and addressed her as his daughter at the various times mentioned by these seventeen witnesses, he át no one of the times mentioned by them really intended to be understood as speaking of her as his'actual daughter or child except the time when it is testified by Maiwurm that he made the emphatic declaration that “she is my own daughter — my flesh and blood.” But whatever the fact may be as to Swigart’s purpose or intention in making any or all the declarations aforesaid, if he did make all of them, the evidence for defendants in error (herein referred to as defendants) establishes beyond all question that she is not the daughter and heir of Swigart. There were more than one hundred and twenty witnesses who testified for the, defendants whose testimony tended directly to overthrow or to refute the claim of Ena that she is the daughter and heir of Swigart. In addition to the testimony of those witnesses bearing on that question there were eleven or more written documents or writings admitted in evidence that are entirely inconsistent with such claim of Ena, and at least one other written document or writing of the same effect that was offered in evidence by the defendants and erroneously excluded by the circuit court. After all of the admitted evidence for the defendants is fully considered, we are forced to the conclusion that the finding of the circuit court that Ena is the daughter and heir of Swigart cannot be sustained, for the reason that the finding is against the manifest weight of the evidence. In presenting and discussing the evidence of the defendants’ one hundred and twenty-three witnesses, and its character and force, we deem it inadvisable and unnecessary to set forth in this opinion a substantial narrative of the testimony given by each and all of such witnesses, or even the material facts to which every such witness testified, in the extended manner that we have set forth the testimony of the thirty-nine witnesses who testified in chief for Ena. We will therefore simply state a few of the historical facts that are undisputed and which are necessary to understand the defendants’ evidence, with a general statement of the material facts sought to be proved by the defendants and the number of witnesses testifying to each set of such facts, and only set forth the testimony of a few of the witnesses to illustrate the general character, purpose and force of the defendants’ evidence.

The residents of Wolfe Island from and before 1865 to 1923 and 1924 — the years during which the evidence in this case was heard by the probate and circuit courts — were mostly land owners and farmers. A few of them were sailors, who were away from the island and engaged in their occupation a very great part of the time, and some of them were witnesses in this case. Among the earliest settlers of the island were members of the Grimshaw family, after whom Grimshaw Bay was named. They were- generally large land owners, and several of that family testified for the defendants. In 1865 among the old residents of the island were Uncle Bill and Aunt Sally Davis, who were picturesque and well known characters. They owned and farmed 50 acres of land adjoining or near Aunt Sally’s place, over which she presided and on or near which she ran a tavern, a dance hall and a store, where the school children and the residents of the island made purchases and gathered for dancing and other amusements. Aunt Sally and Tom Jim, one of her sons and the admitted first husband of Ena’s mother, were very popular, well known and well liked by the people of the island and many others not living on the island. Tom Jim was particularly well known at Cape Vincent, where he attended many dances and where he married Ena’s mother in the latter part of the summer or in the fall of 1865 and brought her to Aunt Sally’s place, where he and his wife resided until his tragic death and where his widow resided for a considerable time after his death. The special reasons given by various witnesses for his pouplarity are, that he was a leader in all character of amusements and a very accomplished dancer. It is said that he was also popular with all the women and that they were glad of an opportunity to dance with him. His tragic death and his largely attended funeral that followed were such as to indelibly stamp upon the minds of the men, women and children who knew him, a memory of him and what he did, so vividly that there were few, if any of them, even at the time of the trial in the lower courts, who could not readily recount the various things they had seen him do and heard him say and the fact of his death in December, 1865. It was these same reasons that a great many of the witnesses gave for their being able to know and to remember quite well his widow, Sarah E. Davis, and where she lived after the death of Tom Jim, and whether or not she had a child born to her shortly after his death, and whether or not she carried the child with her when she left Wolfe Island and vicinity and went to Chicago. The defendants’ contention is that Sarah lived with Aunt Sally as long as the latter continued to live on the.island. Uncle Bill died in 1870. In about 1871 Aunt Sally sold her farm and all her real estate property, including her tavern, store and dance hall, and moved away from the island to or near Craighurst, Ontario, where she died in 1874.

The facts that Sarah E. Davis lived on Wolfe Island with her husband, Tom Jim Davis, after their marriage and until his death at the home of his parents, and that she resided with his parents after his death, are not disputed by Ena or any of her witnesses. The facts that Sarah went to Chicago after she left Aunt Sally’s place and Wolfe Island and vicinity and began living with Swigart some time after she arrived at Chicago, are not disputed by the defendants. The fact that Ena’s mother never had but one child born to her and that the child went by the name of Ena Davis, and that the same Ena Davis was the plaintiff in the lower courts under the name of Ena Welch, are also facts that are not in dispute in this suit. The real and controlling questions in this suit are: (1) When did Ena’s mother go to Chicago? (2) Did she take with her to Chicago her daughter, known as Ena Davis? (3) Was Ena born in Chicago or in Canada? The ultimate fact to be determined is, Is Ena the daughter and heir-at-law of Charles F. Swigart? If Ena was born in Canada in 1866, as the defendants contend, she cannot, under the evidence in the record, be the daughter of Swigart. If she was born in” Chicago in 1869, after her mother went to Chicago and began living with Swigart, as Ena contends, she is, under the evidence in the record, his daughter and heir. The difference in the contentions of the parties as to the date of Ena’s birth is a mere matter of three years. Ena contends that she was born February 4, 1869, and the defendants contend she was born in 1866, and one of their witnesses fixes definitely the date of her birth as February 4, 1866. The further undisputed facts are that Ena and her mother were living with Swigart in Chicago at the time Ena was married to James A. Welch, in 1887, and that they had all three lived together for about fourteen years prior to Ena’s marriage. She left that home about July 20, 1887, after she married Welch. He died a few years later, but she did not return to Swigart’s to live but went on the stage, and the part on the stage that she engaged in for a while was singing. Later her employment on the stage was as wardrobe mistress. In 1915, in an application for life insurance with the Prudential Insurance Company, she was described as “Costumer,” and so far as the evidence shows she is still operating in that capacity. The evidence for the