#### Sandberg, Respondent, vs. The State, Appellant.

*February 22*—

March *11, 1902.*

*Records of births and deaths: Statutes: Evidence: Parish registers: Records of foreign country: Illegitimacy: Presumptions: “Other material facts:” Identity: Costs.*

*, 1.*Under see. 4160, Stats. 1898, providing *that “any*church, parish or baptismal record, ... in which records are preserved the facts relating to any birth, marriage, or death, including *579the names of the persons, dates, places and other material facts, may be admitted as *prima facie*evidence of any fact aforesaid,” copies of parish registers of births and deaths, kept in a foreign country, in accordance with its laws, are admissible in evidence under a stipulation that they should have the same effect as if the originals had been produced by the proper custodian, and duly sworn to by him.

*2.*The regulation of procedure in the certification of documents for evidentiary purposes is wholly in the hands of the legislature, and controlled by the law in force at the time the evidence is offered, and hence in proceedings had after sec. 4160 was enacted, to determine the heirs of one who died before its enactment, the introduction of evidence is controlled by that section,

3. Where the laws of a foreign country require a record of the birth of all children, “illegitimate as well as legitimate,” and authorizes certain officials to provide formulas for books which may be considered necessary regarding births, etc., the fact that a public officer did, in the performance of his duty, enter upon such record the marital status of the mother, and thereby inferentially the legitimacy of the child, warrants the inference that the laws of that country require such entry.

4. Under such inference, the marital status of the mother and the legitimacy of the child become material facts in the birth record, and arfe within the phrase “other material facts” in said sec. 4160, which such record is declared *prima facie*to establish.

*¡5.*The evidentiary effect of such record being declared by said sec. 4160, the record of the birth of a child to one declared therein to be a spinster, in the absence of evidence leaning to the conclusion of legitimacy, is sufficient to overcome the *prima facie*presumption of legitimacy which exists in favor of all children, and to support a finding that such child was illegitimate.

■6. In such case no presumption exists that the child was thereafter legitimated by a marriage between its natural parents.

7. It seems that where, in such records, there is a duplication of rather unusual Christian names, constituting combinations extremely unlikely to occur in different individuals, there is no necessity of evidence, other than the records themselves, to establish *prima facie*the identity of the persons named therein with those whose existence it is material to prove.

A certificate from the public records of Chicago established the death of a person of the same name as S. In addition it appeared, among other things, that S. had gone to reside in Chicago; that the attending physician described deceased as person of the same name, age and nationality'as S.,- giving a *580physical description corresponding in many respects, and differing in none, with that given by persons who knew S. a few years before; that the deceased had a child of the same name and corresponding physically with one shown by other testimony to be the child of S.; that a sister of S., about that time, received a telegram announcing the death of S. and never after-wards — a period of eight years — heard from or of her. *Held,*sufficient to support a finding that S. was dead.

9.Where it appears that S. J. W., if living, would be over ninety years old, the production of a parish record declaring the death of J, S. E., born W., whose date of birth is identical with that of S. J. W., justifies the conclusion of the death of S. J. W., although the Christian names are transposed.

10. The records of a parish establishing the name, date and place of birth of É! Li. W". in 1826, and the records of another parish in the same country, establishing the death in 1866 of a man of the same name, jjorn on the same day in the first named parish, are *held*sufficient to establish the death of the person named in the first record.

11. The general costs statutes in civil actions do not apply against the state, and, in the absence of any statute giving express authority, no court is authorized to render judgment for costs against the state.-

Aepeal from a judgment of tbe circuit court for Jefferson county: B. F. DuNwiddie, Circuit Judge.

*Modified and affirmed.*

' One Laura Augusta Armitage (born Sandberg), having died at Ft. Atkinson, in Jefferson county, intestate, September 11, 1897, her estate was administered by tbe public administrator, and, in absence of any beirs or next of bin, was' escheated, and, in accordance with sec. 3935, subd. 7, Stats. 1898, and sec. 2270, subd. 7, paid over to tbe state of Wisconsin, — being $3,375.62 of money, a schedule of personal effects aggregating about $75, and a bouse and lot in Ft. Atkinson, — by final order of tbe county court of Jefferson county, dated January 23, 1900. Thereafter tbe petitioner, *'Erik*Sandberg, of tbe kingdom of Sweden, presented to tbe county court bis petition, alleging himself to be tbe paternal uncle and tbe only surviving next of kin of said intestate, *581and demanded refund to Mm of ber said property. The state being notified, the attorney general appeared, and answered absence of knowledge or information sufficient to. form a belief as to petitioner’s rights. The county court ordered refund, whereupon the state appealed to the circuit court. Upon the trial there it was established by eyidence that the intestate was a widow, leaving, neither children nor husband; that she had one sister and no brothers; that she was born and married in Sweden, and moved to this country thereafter, but many years ago. It was shown that in 1883 her sister, named Sophia Charlotta Sandberg, visited the intestate at her farm in Jefferson county, accompanied by her child, about two years of age. Evidence was then offered in the form of a parochial record at the place of residence of this sister in Sweden of the birth of a daughter, Gunhild Carolina, on May 20, 1881,* to Sophia Charlotta Sandberg, spinster, which child, by the same record, was registered as having departed for America on March 21, 1883. This was accompanied by a parochial record with reference to the mother, Sophia Charlotta Sandberg, showing her registered as removing from the parish of Katarina to America on March 21, 1883, and at that time a spinster, and free to enter into matrimony. It was proved that the sister passed by the name, currently, of Charlotta Sandberg, and the child by"the name of Gooney; that later in the year 1883 the sister moved to Chicago, and still later — either in 1883 or early in 1884 — the child, Gooney, was taken to her at that city, where she was then living with a man who, in her presence, denied being her husband. A death certificate from the Chicago records was then offered in evidence, certifying the death, at 228 North Union street, Chicago, on August 1, 1889, of Charlotte Sandberg, thirty-nine years old, of Swedish birth. The physician who attended her at the time of her death described her, which description tallied closely with that given by those who had been acquainted *582with ber in Jefferson county wben visiting tbe intestate. He also testified to tbe presence of a child from six to nine years old, tbe description of wbicb corresponded in considerable measure with tbe child Gunhild. Evidence was also offered of tbe delivery of a telegram to tbe intestate at approximately tbe time wben this death took place, tbe substance of wbicb was only imperfectly remembered, but in substance notified ber of tbe death of her sister, and that she would be buried by tbe public authorities; at wbicb tbe intestate was very much affected. A witness, who bad charge of tbe affairs of tbe deceased, did ber business and attended to ber correspondence for ber, testified that, so far as be knew, nothing bad. ever, been beard further of either tbe sister Charlotta or tbe child Gunhild. Tbe petitioner testified that tbe father and mother of tbe deceased were both dead; that be was a brother of ber father, who bad six brothers and sisters, all tbe rest of whom were dead. He testified also that tbe intestate’s mother bad six brothers and sisters, who, as appeared by parish records, were all dead. Thereupon a series of parish records of births and deaths were introduced, claimed to establish tbe fact of tbe death of all of tbe maternal uncles and aunts before 1897. Thereupon tbe circuit court filed findings to the effect that tbe intestate bad no children or descendants, no husband, no father nor mother nor grandparents; that she never bad any brothers; that she bad one sister, who predeceased ber, leaving no legitimate children; that tbe child Gunhild was illegitimate. He further found the existence and death of tbe maternal uncles and aunts, and of all tbe paternal uncles and aunts except tbe petitioner, whom be therefore found to be tbe sole surviving next of kin, and entered an order or judgment directing that tbe state pay to him all of tbe property and moneys received from tbe administrator as aforesaid, together with $20 of rents thereafter received, and that tbe state pay to tbe claimant tbe amount of bis disbursements as taxed. From that *583judgment, and the whole thereof, the state brings this appeal.

Eor the appellant there was a brief by the *Attorney General,*and oral argument by *C. E. Buell,*first assistant attorney general.

To the point that there was no competent testimony to warrant the finding that the child Gooney was illegitimate, were cited, *Hermann v. State,*73 Wis. 248; sec. 4172, Stats. 1898; *Bavin v. Mut. A. Soc.*74 Wis. 349; 1 Jones, Ev. § 23; *Blackburn v. Crawfords,*3 Wall. 175, 182, 189; *Weaver v. Leiman,*52 Md. 708; *Clark v. Trinity Church,*5 W. & S. 266; 1 Greenleaf, Ev. § 493; *Sitter v. Gehr,*105 Pa. St. 577; 2 Phillipp’s Ev. 280; *Bex v. Clap-ham,*4 0. & P. 29; *Burghart v. Angerstein,*6 O. & P. 690; *Williams v. Lloyd,*39 Eng, O. L. 595; *Whitcher v. McLaughlin,*115 Mass. 167; *Strode v. Magowan’s Heirs,*2 Bash, 621; *Caujolle v. Ferrié,*23 N. Y. 90; *Piers v. Piers,*2 EL L. Gas. 331. That there was no sufficient competent proof that the sister of deceased was dead, *Oregon S. Co. v. Otis,*100 N. Y. 446; *Williams v. Brickell,*37 Miss. 682; *Whilden v. Merchants & P. Nat. Bank,*64 Ala. 30; *Bichie v. Bass,*15 La. Ann. 668; *Burt v. W. & St. P. B. Co.*31 Minn. 472; *Adams v. Mille Lacs L. Co.*32 Minn. 216; *Smith v. Easton,*54 Md. 138, 143, 146; *U. S. v. Babcock,*3 Dill. 577.

Eor the respondent there was a brief signed *B. B. & I. B. Kirkland,*attorneys, and *Judge Oscar Von Koch,*Stockholm, Sweden, of counsel, and oral argument by *B. B. Kirkland.*

Dodge, J.

It is not seriously controverted that claimant has established that he is an uncle' of the deceased, Mrs. Armitage, nor that the evidence sufficiently negatives the existence of any other kin of equal or superior proximity, except that of the sister, Sophia Charlotta Sandberg, and her daughter, and the legitimacy of that daughter, and the existence of the six maternal uncles and aunts. Much of *584the proof' as to all of these persons consists in the introduction of copies of parish registers of births and deaths, kept in the kingdom of Sweden, in accordance with its laws, and offered in evidence upon the trial under a stipulation that they should have the same effect as if the originals had been produced by the proper custodian, and duly sworn to by him. The state seems to contend against the admissibility of these documents, although the grounds of objection are not made entirely clear. If they have any relevancy or materiality, their admissibility would seem to be put beyond doubt by sec. 4160, Stats. 1898, which provides:

> “Any church, parish or baptismal record, ... in which record are preserved the facts relating to any birth, marriage or death, including the names of the persons, dates, places and other material facts, may be admitted as *prima facie*evidence of any fact aforesaid.”

These documents are both church and parish records, and are shown to have been kept pursuant to the law of Sweden, and to be in the legal custody of the person who produced them. True, this statute was not enacted until after the death of Mrs. Armitage, but it had been enacted and was in full force at the time of the trial. Of course, the regulation of procedure and certification of documents for evidentiary purposes is wholly in the hands of the legislature, and is controlled by the law in existence at the time when the evidence is offered. Such statutes neither create nor impair vested rights, nor in any wise affect obligation of contracts. They regulate procedure merely, and speak from their date with reference thereto. *Hopt v.*Utah, 110 U. S. 574, 590; *Thompson v.*Missouri, *171*U. S. 380. We therefore need not spend time to consider the admissibility of these documents at common law, nor under our statutes as they existed at some earlier- time. Neither need we be given pause bv the decision of this court in *Lavin v. Mut. A. Soc.*74 Wis. 349, which merely decided that a baptismal certificate *585'issued in a foreign country and authenticated in accordance with sec. 4172, Stats. 1898, was not admissible under that ■section, for the reason that its terms extended only to certificates of births, marriages, and deaths, and theréfore did not give admissibility to a certificate pf baptism.

Passing from the question of admissibility to the question -of probative force, and postponing for the present that of the identity of the persons, the most serious inquiry is •whether the declaration in the record of the birth of the in■fant, Gunhild, that at the time her mother was a spinster, is •any evidence of illegitimacy. That inquiry turns primarily upon the force of our statute, which, as above quoted, provides that the record shall be *•prima, facie*evidence of any material fact stated therein, in this respect extending the ^efficacy of such records beyond that accorded them at common law according to many decided cases. The question at ■once arisés under this statute whether the marital status of the mother is a material fact in a birth record. The law pf .■Sweden, which is somewhat imperfectly presented in the record, seems to require a record of all “children, illegiti.mate as well as legitimate, and the names of their *parents*■and godfathers and godmothers, . . . with short annotations regarding their burial places, state and capacity, life, and age.” It also authorizes certain officials to provide ■formulas for books which may be considered necessary regarding births, baptisms, deaths, and burials. It thus appears that the laws of Sweden, at least, indicate the importance of preserving in the records the fact of legitimacy and ■illegitimacy. Little, if any, ingenuity is necessary to suggest reasons for materiality, both public and private. Eights •of the individual as against private property and as against •other relatives may well be affected thereby; also its rights ■to local citizenship, protection, or support. Besides this, "the information, for statistical purposes, may be very im-fjortant. The fact that a public officer did, in the perform-*586anee of Ms duty, enter upon the record the marital status of the mother, and thereby inferentially the legitimacy of the child, strongly suggests, in absence of any negation, the inference that the laws required such entry; and we certainly are unable to say that it is so wholly an immaterial circumstance as to refute that inference. We must conclude that, the fact is within the phrase of our statute, “other material facts,” and therefore that the record *prima facie*establishes-it. Doubtless, the evidence of the certificate is in conflict with the *prima facie*presumption of legitimacy which exists-in favor of all children, but the statute declaring the evi-dentiary effect is without force unless it means that the record is sufficient to overcome a mere *prima facie*presumption. If that presumption were aided by any other evidence, the court should lean to- the conclusion of legitimacy, but of such facts there are none in the present case. The-only other evidence bearing on legitimacy which we have is that about two years after the birth of the child the mother changed her residence from Sweden to the United States, unaccompanied by a husband, and that she then passed by her maiden name of Sandberg. Certainly these circumstances tend rather to confirm her spinsterhood than to refute it. We conclude, therefore, that this record was *prima, facie*evidence that the child, Guuhild, niece of the intestate, was born while its mother was unmarried, and was therefor© illegitimate. We can indulge in no presumption that thereafter it was legitimated by a marriage between its natural parents, especially in view of the facts shown two years-later, wMch are more consistent with the continued spinsterhood of the mother.

A further question arises and is argued, common to a large number of these records, as to the necessity of evidence other than the records themselves to establish *prima facie*the identity of the persons named therein with those-whose existence is material in this case. There is a line of au*587thorities wbicb hold that .identity of name alone is always-sufficient to establish *prima facie*the identity of persons. *Jackson v. King,*5 Cow. 231; *Green v. Heritage,*63 N. J. Law, 455; *Hamsher v. Kline,*57 Pa. St. 397, 403; *Goodell v. Hib*bard, 32 Mich. 47, 55; *Morris v. McClary,*43 Minn. 346; 16 Am. & Eng. Ency. of Law (1st ed.), 119. Appellant contends for the exact converse of this rule, namely, that identity of name is never sufficient alone, but the party producing the record must always offer some independent proof of identity; citing *Barber v. Holmes,*3 Esp. 190; *Morrissey v. Wiggins F. Co.*47 Mo. 521. Probably neither rule is universal, though the former seems more nearly so according to the weight of authority. In the present case it is not necessary to decide between them, for every record is supplemented by some fact or circumstance in addition to the mere name, although that alone in several instances, we are persuaded, ought to suffice, because of the duplication of rather unusual Christian names, constituting combinations extremely unlikely to occur in different individuals.

The next serious issue is whether the claimant has established the death of the sister Sophia Charlotta Sandberg. To-do this he has offered affirmative proof by a legal death certificate and by the testimony of the attending physician that in 1889 there died in Chicago one Charlotte Sandberg. He has also offered, both as confirmatory of the identity of the person who then died and as affirmative proof, the fact that there was delivered to Mrs. Armitage at about this same time a telegram informing her of the death of her sister in Chicago, which she evidently received as authentic, for she was-very much affected thereby, as the witness who delivered it to her testifies. These are followed or supplemented by testimony of a gentleman who -aided Mrs. Armitage with her correspondence and business, and was in a position, probably, to know if the fact had been otherwise, that he never knew of her receiving any communication from or information of *588her sister during the rest of her life, a period of something over eight years.

. As to the effect of the proof, undisputed, of the death of a Charlotte Sandberg.in Chicago, there is only the question of identity. It is proved by .the testimony of the attending physician that this woman described herself as of Swedish birth, and as of the same age as Mrs. Armitage’s *sister;*who, by the way, it is shown commonly passed by the name of Charlotta, instead of Sophia. He also gives a physical description of her, which corresponds in many respects with the physical description given of Mrs. Armitage’s sister by those who were acquainted with her six years before in Jefferson county, and differs in none. Further, the woman who died had a little girl of about the age of Gunhild, and who had certain physical characteristics corresponding with those remembered by her acquaintances in Jefferson county. It is also established that Mrs. Armitage’s sister Charlotta went to reside in Chicago in the latter part of 1883, and so continued for some time thereafter. From these facts we certainly are unable to say that the finding of the court that the woman who died in Chicago was Mrs.-Armitage’s sister is so without support in the evidence that we must set it aside.

The evidence with reference to the death of the six maternal uncles and aunts of Mrs. Armitage is wholly documentary. Their dates of birth were from 1811 to 1826, as appears by the parish records of Enkoping, the place of residence of their parents. Upon the same record where those births are narrated appears the death of three at ages ranging from one to five years. Of the identity of these, obviously, there can be no serious doubt. The death of the eldest aunt, Sophia Johanna Warman, born the 2d of December, 1811, is claimed to be established by the record from another parish, declaring the death of Johanna Sophia Erwall, bom War-man, whose date of birth was identical with that of the aunt. The identity of the person who died with the aunt is not very *589perfectly established. Tbe identity of tbe two Christian names is, of course, striking, although they are transposed. The exact date of birth is also striking, and., in view of the further consideration that this aunt was born in 1811, and, if alive to-day, must be over ninety years of age, we think the court was justified in reaching the conclusion of her death. To prove the death of the uncle Josef Leontius Warman is offered the record of a Stockholm hospital parish that a person of exactly the same name and of the same age .there died in Eebruary, 1841. In view of the antiquity of these events and coincidence of the three names and the age, 'we think that the identity is sufficiently established. As to the uncle Erans Leonard Warman, born October 1, 1826, at Enkoping, there are offered the records of another parish that a man of the same name, bom the same day at Enkoping,. died June 26, 1866. These three elements of identification — name, date of birth, and place of birth — would seem entirely sufficient.

We therefore reach the conclusion that the trial court was justified in finding with the claimant on all these controverted issues of fact, as also upon the ultimate issue to the effect that he is the only next of kin to the deceased, Mrs. Afmitage, and properly adjudged surrender of the estate to him.

The judgment for recovery of costs against the state is erroneous. No court is authorized to render judgment for costs against the sovereign state, in absence of statute giving express authority. *U. S. v. Barker, 2*Wheat. 395; *U. S. v. Ringgold,*8 Pet. 150, 163; *Stanley v. Schwalby,*162 U. S. 255, 272; *State v. Smith,*52 Wis. 134. We find no statute giving such authority. The doubt expressed by Ryan, C. J., in *Noyes v. State,*46 Wis. 250, 252, whether general cost statutes might apply against the state in civil actions is readily resolved by reference to the rule that general statutes are not to be construed to include, to its hurt, the sovereign. *Dollar S. Bank v. U. S.*19 Wall. 227, 239; *U.*S. *v. Verdier,*164 U. S. 213, 219. The error thus committed in no wise *590■affects tbe correctness of tbe judgment in other respects, and ■ean be corrected here. ■

*By the Court.*— Tbe judgment appealed from, is modified by striking therefrom tbe award of costs, and, as so modified, is affirmed; No costs will be recovered by either party in this ■court.