Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1912-01-12

The evidence offered in district
court on behalf of respondents ME-
sen is reviewed and held to negative
the existence Of any common law
marriage of Dorothea Harnau to
Peterson. Neither she nor Herman
Miesen, alleged son OF deceased, are
entitled to inherit his estate They
are without interest in these pro-
ceedings and their petition that his
estate be decreed to them on final
distribution thereof is denied and
Judgment below in their favor is Or
dered vacated.
9. Entries of births, deaths and
matters of family history in a family
bible, though hearsay, are admlssl-
BILE as past declarat tons of matters
of family history concerning events
as to which the family IS presumed
to have accurate knowledge, Waen
the entries were made by member
of the family since deceased and at
time when there could exist no
mo i've to deceive.
10, Certified copies of parish rec
ords from Norway of recorded birtns'
Ladehol ct al. to be heirs Of de-
ceased, held inadmissible for want
of proof as foundation for their
admission of the foreign law requlr.
ing sucn registration as an onlclal
duty. A foreign law relied upon as
the basis for such testimony must
be proven as fact, and when Cne
foreign law exists as a statute or in
writing oral testimony thereof is IN
admissible under both the common
law and our statute Sec. 1921. The
foreign unwritten or common law
may be established by oral testl-
mony. but where such oral testimony
does not establish the foreign law
to exist as unwritten or common Ia"
and negative the existence OF a writ
ten statute, the proof OF the forelgn
law is insufficient to admit certlned
copies of the foreign official ou'
non-judicial records.
II. Such certified copies purport-
ed to be certified by the pastors as
keepers of the records, authentlcat-
ed under seal by judges as to gen.
uineness of the pastors signatures
and that the records were kept pur-
suant to requirements of law, and
re.authenticated by higher church OF.
f1cials and all certified under seal OF
officials to verify of signatures,
faith and credit to be given and as
made under lawful authority In turn
by the American Consul resident IN
Christian, Norway, held insufficient
to warrant the reception in evidence
of such documents so certified with
out further proof that the foreign
law was not in writing.
u. The Federal, State and COM
mon law rules of authorization OF
documentary evidence as between
the states and territories discr1ml-
mated, the common law rule as to
proof necessary to admit foreign Of
f1clal but non.judicial records not ap-
PLYING thereto.
The proof of heirship being insuf-
f1cient as to the right of Ladehol, ct
al. alleged foreign heirs, respond
ents, to inherit, but it appearing
that on re-trial further testimony
might be offered and that further op'
pOrtuIlCV SIOulu Uc given CAOAA "
submit proof of their relationship to
deceased, this action is remanded to
the district court for re-trial on
that issue and the state, to whom in
case of want of heirs the estate
escheats, will appear by the States
Attorney Of Benson county or by the
Attorney General. Judgment in the
county court to be entered on order
of district court.
(Syllabus by the court)
Appeal from the district court OF
Benson county, Cowan, ].
REVERSED and Remanded.
Opinion by Goss, ]. Burke, J. and
Bruce j.. being disqualified, Hon. w.
H. Winchester, Judge of the Sixth
Judicial District, sat by request.
Scott Rex. T. H. Burke and c. L.
Lindstrom, attorneys for appellants.
Butte & Sinness, and o. D. Com
stock, attorneys for respondents