John H. Link was born in 1857 in Allegheny County. He died August 26, 1930, aged 73 years, unmarried, intestate, and leaving no issue. Four claimants to his estate, residing in Germany, aver they are first cousins of decedent through his father. They are known as "Link claimants." Two others living in the same country claim as first cousins through decedent's mother, Elisabetha Hoffman Link. They are known as "Hoffman claimants." There is no controversy between these cousins. There is a controversy between these six cousins and other claimants, especially those from Butler County, who have appealed to this court; the Commonwealth contends against all claimants to the estate. The fund in controversy, originally $81,504.52, after deducting taxes, transfer inheritance tax, legal and other expenses, is $42,630.91. The court below found against the claimants and awarded the fund to the Commonwealth under section 1314 of the Fiscal Code, the Act of April 9, 1929, P. L. 343. From that decree these appeals have been taken by the six persons claiming to be cousins of the decedent.
The first question called to our attention is the form of the decree under section 1314, assuming the court below was right in other matters. The part objected to in the decree awarding the fund to the Commonwealth are the words "to be transmitted to the State Treasurer of Pennsylvania in the nature of an escheat," and it is argued that the decree should read that the funds be paid "into the State Treasury, through the Department of Revenue" pursuant to the Act of 1929. The main objection to the decree is that there were no escheat proceedings under the Act of May 2, 1889, P. L. 66, and neither color nor title to the funds could be given under this act. The *Page 516 point is well taken, the lines objected to should be deleted and the decree made to conform to the Act of 1929.
The orphans' court is the proper tribunal to decide the questions of fact here raised. It has exclusive jurisdiction over the settlement and distribution of estates (Linsenbigler v. Gourley, 56 Pa. 166; Long's Est., 254 Pa. 370), and the power to distribute necessarily includes the power to determine all questions essential to a proper distribution: Dundas's App., 73 Pa. 474; King's Est., 215 Pa. 59; Brandt's Est.,83 Pa. Super. 322. The burden rested upon appellants to prove their claim by a fair preponderance of trustworthy and satisfying evidence, as in civil cases: Com. v. Sweeney,283 Pa. 520. See Wigmore on Evidence (2d ed.), section 2498; 18 C. J. 874; 10 Rawle C. L. 204. Had the court below decided in favor of the claimants it could have directed in the present proceedings that the funds be turned over to them; if the decree of the court below against the claimants is sustained in this court, then as the record stands there are no claimants. There is then in the possession of the fiduciary moneys not awarded to any claimant, and which may be paid into the state treasury under the Act of 1929. Payment of unclaimed moneys by a fiduciary under the Fiscal Code preserves to anyone legally entitled thereto the right to subsequently prove his claim as provided in the act. Among the matters accomplished by the Act of 1929 was that it saved the Commonwealth a large amount of money heretofore paid to escheaters in fees. See Miles v. Metzger, 316 Pa. 211. But it does not take away the right of a lawful claimant to assert a claim subsequently.
The contest before the court below was, who takes the property of a decedent who dies without issue or known relatives? It is only by the grace of the Commonwealth that heirs or legatees are permitted to receive any benefit from a decedent's toil and energy. But it reserves to itself the right, as it always has, to take the property of a decedent when under its laws there is no one in a position *Page 517 to inherit. The property of an intestate decedent who dies without known heirs is not mere flotsam or jetsam to be taken by anyone claiming it. In such circumstances, the Commonwealth stands in relation to the property of the decedent as one asserting a substantial right thereto. The Commonwealth's claim is not based on charity, gratuity, or unearned benefit; it was by its protection that it was possible for the decedent to acquire such accumulation of property as he possessed.
John H. Link was the son of Johann or John Link and Elisabetha Hoffman Link. John Link died April 2, 1901, at the age of 78, survived by his widow, who died August 20, 1901, aged 72, and three children: Catherine, who died in 1915, unmarried, intestate and without issue; Annie Catherine Zimmerman, who died in 1929, intestate and without issue, survived by her husband, Peter C. Zimmerman, and the intestate decedent, John H. Link. The latter, shortly after his parents' death, erected a monument over their graves which states that Johann Link was born July 13, 1822, and that his wife, Elisabetha, was born December 21, 1829. A Bible subsequently offered in evidence showed the birth of Johann as July 13, 1823. Both the father and the son had, for many years, receded from association with their fellow men and confined themselves to a small farm in Ross Township where John Link had established the family home. There, exercising the utmost frugality, even to the point of squalor, they amassed a considerable estate, which was carefully invested. This increase in wealth came principally from the produce of a small plot of ground.
Appellants, in seeking to establish kinship by means of birth, death and marriage records from Germany, and affidavits as to family reputation and the declarations as to relationship of deceased members of the family all coming from or near a particular place in Germany are confronted by a requirement — an underlying circumstance that must be established before such evidence is of *Page 518 value as to kinship. Satisfactory evidence must be produced showing the place of origin, the town or place in Germany from which decedent's parents came and where kinship was created. These affidavits utterly failed to make the connection and establish this link in the chain. Peter Zimmerman, decedent's brother-in-law, was the principal witness before the master and the court below for this purpose. Zimmerman's testimony attempts to fix the place that Johann Link and his wife came from in Germany. The testimony of Lothes, for a similar purpose, was also before the court, but it was found vague and indefinite. The court below refused to credit any of this testimony as reliable. It is stated in Judge TRIMBLE'S findings and conclusions, concurred in by the other judges of the court in banc, "Nor is there any satisfying evidence in the case at bar that John H. Link left any relatives to succeed to his estate. In so far as Peter C. Zimmerman's (the son-in-law) testimony about John H. Link's family is reliable, we are confined to it for the facts about his provenance, his marriage, and his children." Further: "It is now more than eighty years since John Link left Bavaria and perhaps quite as long since his wife left, if she ever lived there at all. There is no testimony from any witness called in this case before the master or the court, except Peter Zimmerman, to show that Elisabetha Hoffman, the widow who married John Link, ever lived in Bavaria. There is not a word of reliable testimony in thiscase to show from which one of the innumerable towns, of thelarge political division of Germany known as Bavaria, John Linkof Ross Township came. It is startling to think of any hope of founding a decree upon such flimsy hearsay testimony as we have in the ex parte affidavits offered by the Bavarian claimants or the unsatisfying testimony of Zimmerman." Of course the affidavits would be of no evidential use or value unless John Link, the father, can be definitely located at some place in Bavaria. The court below was not satisfied that the witnesses relied on by the claimants were *Page 519 credible, and, not believing them, it refused to find a decree for appellants.
With respect to Zimmerman's testimony, we quote from appellants' brief: "In the first place, appellant's desire to point out that Peter C. Zimmerman's first and primary interest in all the matters involved in the estates of decedent, decedent's father, and decedent's sisters, was to get out of them all that he could for himself, which he certainly succeeded in doing. He was not friendly to the interests of any next of kin left by John H. Link, and his various affidavits and testimony shown on the record before the auditing judge gives very certain indication that it was only by slow degrees that he disclosed facts within his knowledge that could be, and eventually were, of assistance to the inquiry. After he was assured of the success of his own efforts to obtain as much as he could, his recollection improved. This is demonstrated by his withholding from the master the information about the family Bible and his knowledge of the friendship which existed between the Links and the South Side people, who turned out to be John Lothes and his uncles." A judge who disbelieves such a witness should not be criticized when counsel speaks of him thus.
Furthermore the court rejected the ex parte affidavits as being incompetent. Incompetency may come from deficiency within the affidavit or from some extraneous cause. Incompetency covers a wide field. Ex parte affidavits are generally inadmissible as not being the best evidence, especially when the persons making them are living and able to testify either in court or by deposition. The estate was well worth a trip from Germany and if appellants had sufficient faith in their cause they should have come. Direct testimony is of a higher grade and should be insisted upon in pedigree cases. If the statements contained in the ex parte affidavit are evidence, there is a proper way to place them in the record.
We have no doubt that pedigree may be proven by certain types of hearsay evidence, but kinship which carries *Page 520 with it a claim of property against the claim of the State should be proved by something more than a guess, it should be built on a sound basis. Johann Lindner stated in the ex parte affidavit that "I knew Johann Link who lived there and died at Neuhof in 1910. . . . I often talked with Johann Link who died in 1910 about his brothers and sisters. He told me that some of them had gone to America and they had never heard from them. That he had a brother Johann, the same name as himself who was in America and was married to Elizabetha Hoffman, a girl from Preunersfeld, which is about two or three miles from Neuhof." Here the declarations as heresay evidence were those of a brother. In Sitler v. Gehr, 105 Pa. 577, 596, it was stated: "I entirely agree that, in order to admit hearsay evidence in pedigree, you must, by evidence dehors the declaration, connect the person making them with the family." Sitler v. Gehr, supra, holds that declarations are admissible if, first, the declarations are made ante litem motam; second, the declarant is dead; and, third, the quotation just noted; to which the court below adds, "there must be some evidence independent of the statement itself that the person making the statement is related to the family about which he speaks." As stated in Gerrity v. Sovereign Camp, 85 Pa. Super. 288, 291: "The rule does not require that the witness who testifies in court must be related to the person whose pedigree is under consideration but that the declarant whose statements are given in evidence by the witness was so related." The court below in holding that the chain of relationship was not proved, did not hold that the person who made the affidavit should be related to the Link or Hoffman families. It did require that the person who made the declaration, namely, Johann Link, should be related to the families, and that should be shown by "evidence dehors the declaration." That is, evidence apart from Johann's declaration to connect him with the family. *Page 521
To support the catena or chain of relationship and furnish "evidence dehors the declaration" it is urged that the birth certificate offered in evidence (Johann Link, July 13, 1822, and John Georg Link, born January 27, 1828), prove that "the Johann Georg Link, as to whose declarations Johann Lindner made the affidavit, was the younger brother of Johann Link, the latter admittedly being the father of the decedent." Johann Lindner's ex parte affidavit does not speak of Johann Georg Link; he speaks of Johann Link who died in 1910, and who, this record shows, was not born in 1828, but according to the baptismal certificate was born in 1834, and according to the death certificate from the Registrar of the Bureau of Vital Statistics, was born in 1840; this Johann Link was not the Johann Link whose baptismal certificate shows him to have been born July 13, 1822. (It is claimed that Link was the father of John H., the decedent, but Zimmerman says he was born in 1823.) There is another reason why Lindner was not testifying as to Johann Georg Link's declaration. Johann Georg, according to a death certificate in evidence, died February 18, 1868, while the Johann that Lindner speaks of died in 1910. These baptismal and other records do not prove Johann Link, or John Link, in America, the father of John H. Link, was the brother of Johann Link who is supposed to have made the declaration, nor is there anything dehors the record that would prove that fact. It would appear that these parents named three of their boys Johann, a most unusual circumstance even in Germany. The name Georg can not be added to Johann in Lindner's ex parte statement.
The court below called attention to the fact that Lindner speaks of Johann Link, who was in America and married to Elisabetha Hoffman, who had gone to Pittsburgh; a brother had paid to her the share of her father's estate. Zimmerman stated that she did not get her portion of the estate in Germany, and he further states, on at least three *Page 522 occasions when called to testify, that Elisabetha Hoffman was married in Germany having one child and came with it to America.
The court below also refused to credit these certificates and the ex parte statement. If a chain of relationship can be built up through birth certificates and ex parte statements, as offered here, there would be no escheated estates in Pennsylvania.
It is our duty to examine all the testimony, which we have done. The witnesses were before the court below, and the judges were better able than we are to decide to whom credit ought to be given and from whom it ought to be held. When a hearing judge refuses to believe the testimony of a witness, his conclusion as to credibility will not be disturbed unless his acts are biased, capricious or unreasonable. After a careful review of the testimony, with the knowledge that the opinion writer in the court below saw the witnesses and observed their behavior while testifying, and duly noting what appellants' counsel has stated as well as the contradictions and other matter appearing in the testimony, the court below did not err in rejecting the testimony as not being credible. Therefore the findings of fact of the court below must stand unless manifest error or mistake otherwise clearly appears: Stevenson's Est.,272 Pa. 291; Comly's Est., 185 Pa. 208; Keyser's App., 124 Pa. 80; Clabby's Est., 308 Pa. 287.
The name "Link" is quite common. One can scarcely pick up a directory in a town of any size but that the name appears, therefore identity of names would not be helpful. Identity of names, religion and nativity alone are insufficient to evidence family connection. The evidence to sustain relationship must bear on every material feature necessary to support a finding of kinship. It must be grounded on a reasonable certainty and come from witnesses whose truth and candor are not questioned. To defeat the claim of the Commonwealth the evidence must be so clear, precise and definite in quality *Page 523 and quantity as to satisfy the court below that the relationship claimed existed. The court in a proceeding of this character sits as a jury to weigh and consider the relevant testimony, and when a finding is made it is binding on this court unless there has been legal error in the course of its submission.
We do not find such error to have been committed in this case, and, with the modification of the decree as above noted, the decree of the court below is affirmed. Costs to be paid by the appellants.