The payment is not compulsory unless made to relieve the person or property from an actual and existing duress imposed upon him by the party to whom the money is paid.236 It is the rule, however, that a party is not bound to wait until his property is levied upon; he has a right to assume that an officer will enforce the process when he makes a demand for the property. A payment under such circumstances is held compulsory.237 guson, 5 Hill (N. Y.) 154; Rollins v. 236 Elston v. Chicago, 40 Ill. 514; Falls v. Cairo, 58 Ill. 403. 237 First Nat. Bank v. Watkins, 21 Mich. 483; Atwell v. Zeluff, 26 Mich. 118; McKee v. Campbell, 27 Mich. 497. 2189. Burden of proof-Collateral 2211. Latent ambiguity-Raised and 2196. Declarations of ancestors 2216. Similarity of name-No proof Rule stated. Limitations. of identity. Parol 2197. Declarations of ancestors- 2217. Identity of devisee Determined from context. 2218. Identity of devisee proof of testator's declarations. 2198. Declarant's relation-How es tablished. 2199. Hearsay, tradition, and repu 2229. Intention to disinherit must 2238. Misnomer of society-Identification. appear. 2230. Intention to disinherit need 2239. Gift to charities by wrong names. not be stated. 2231. Proof of intention to disin- 2240. Parol evidence to aid in iden tification. herit. 2232. Naming children by associa- 2241. Two corporations-Name and tion-Illustration. description. 2233. Ignorance of devisee-Duty of 2242. Corporations misnamed-Illus § 2185. Scope of chapter.-The object of this chapter is to give the rules of proof in cases where it is necessary to show the identity of heirs, devisees and legatees. It is not the purpose here to give the rules of proof, except incidentally, on the substantive law of descent and distribution, settlement of estates, or pedigree in gen-. eral. But the chapter will be confined to the evidence of heirship, the identity of persons, corporations, associations and societies, where such facts are put in issue as to the foundation of some claim of right, and where the establishment of such right depends on the proof of the identity of such heirs, devisees or legatees. § 2186. Presumptions.-The presumption of law is that a person dying intestate has left heirs capable of succeeding to his estate. This presumption that the estate of such person is transmitted to others by the law of descent, is so strong that it can only be overcome by positive proof of the want of persons capable of taking the estate under the laws of descent and distribution. And where the proof 1 Harvey v. Thornton, 14 Ill. 217; Pile v. McBratney, 15 Ill. 314; City of Chicago v. Major, 18 Ill. 349; Fell v. Young, 63 Ill. 106; Hollingsworth v. Barbour, 4 Pet. (U. S.) 466; University of North Carolina v. Harrison, 90 N. Car. 385; People v. Fulton F. Ins. Co., 25 Wend. (N. Y.) 205. shows that an intestate died without issue or lineal heirs, the presumption of collateral heirs still prevails. But it is held that proof of the fact of there being no known heirs might raise a presumption of the failure of the inheritable blood; but such proof should be direct and positive, shown to be founded upon inquiry, advertisements, personal family knowledge or the declarations of those from whom the property descended. It has been doubted if mere heresay reputation of the failure of heirs will overcome the legal presumption. And the presumption was held to be so conclusive that it was not overcome by proof of the fact that neighbors and acquaintances of an intestate, who had known him for many years, did not know that there were in fact persons capable of taking his estate under the law. The law presumes that every child is the offspring of a lawful union of its parents, and in the absence of any negative evidence no further proof of marriage is necessary.* 2 § 2187. Presumptions on proof of death.-Where a person is proved to be dead the law does not presume that he left no children or descendants. And where there is proof of death of the person under whom the claim is made there must be some additional proof, either direct or presumptive, that such person left no children or other descendants, as it will not be presumed that he died childless, and the burden is on the party alleging such fact to prove it. Where an unmarried person is presumed to be dead by reason of absence without having been heard from, and where the unmarried state continued when last heard from, the presumption of his death carries with it the presumption that he died without issue." 6 § 2188. Burden of proof.-Where a person claims a right or the possession of certain property by reason of his being the lawful heir under a statute of descent, from a deceased ancestor or collateral People v. Fulton F. Ins. Co.., 25 Wend. (N. Y.) 205. Dandt v. Musick, 9 Mo. App. 169; Garrity's Estate, Myrick's Prob. 180; Hurdle v. Stockley, 6 Houst. (Del.) 447; Hollingsworth v. Barbour, 4 Pet. (U. S.) 466. McClaskey v. Barr, 47 Fed. 154; Strode v. Magowan, 2 Bush (Ky.) 621, 627; Lawson Presum. Ev., 107. 5 Hammond v. Inloes, 4 Md. 138. Shriver v. State, 65 Md. 278, 4 Atl. 679; Still v. Hutto, 48 S. Car. 415, 26 S. E. 713. 7 Shown V. McMackin, 9 Lea (Tenn.) 601; Rowe v. Hasland, 1 W. Bl. 404; Doe v. Griffin, 15 East 293.. kindred, the burden of proof is upon him to establish every fact necessary to entitle him to recover under the law.. Under this rule the plaintiff must establish the fact that he is the person legally entitled to the property in dispute as such heir by proof of his relationship, and that there are no other persons in equal or close degree of consanguinity who are entitled to share with him in such property.8 The rule is that the heir-at-law when suing as a plaintiff in ejectment, must prove his descent from the ancestor from whom he claimed, and that he must show that all the intermediate heirs are dead without issue; and "in order to show the death of all nearer heirs it is necessary to negative the coming into existence of those who would be such." It seems to be clear that in the absence of proof of the non-existence of issue, as a distinct species of fact from that of death, the proof of heirship would be defective." It has been held in Louisiana that the claimants are only required to prove that they are the legal heirs of the ancestors, and that they will then be considered his only heirs unless it is shown that others exist.10 § 2189. Burden of proof-Collateral kindred.-In general, in cases where the claim arises by virtue of the death of collateral kindred, it is not sufficient to prove the death only of such collateral kindred; but there must also be some negative proof of the absence or want of issue; the plaintiff must remove every possibility of title in another before he can recover, in ejectment, against the person in possession.11 The rule where one claims as heir by collateral descent has been aptly stated as follows: "It was incumbent upon the lessors of the plaintiff claiming, as they do by collateral descent, to show who was last legally seised of the land in controversy, and then to prove his death, without issue; and next to prove all the different links in the chain of descent, which will show that the person last seised and the claimants descended from some common ancestor, together with the extinction of all those lines of descent which claim in preference to the lessors of the plaintiff. They must prove the marriages, births and deaths, and the identity of persons S Anson v. Stein, 6 Iowa 150; Skinner v. Fulton, 39 Ill. 484; Morrill v. Otis, 12 N. H. 466; Sheehan's Estate, 139 Pa. St. 168, 20 Atl. 1003. Sprigg v. Moale, 28 Md. 497; Kelso v. Stigar, 75 Md. 376, 24 Atl. 18. 10 Celis v. Oriol, 6 La. (O. S.) 406. 11 Hammond v. Inloes, 4 Md. 138, 175; Sprigg v. Moale, 28 Md. 497; Richards v. Richards, 15 East 294. |