dissenting, with whom agrees Start, J.
According to the opinion, general reputation in the family, when applied to cases of pedigree, means family history and tradition, handed down by declarations of deceased members of the family, made ante litem 7notam. This limits such reputation wholly to hearsay, for such declarations are nothing else, as they are handed down by relation, the narrator simply telling what he has heard. This is undoubtedly the rule in England ; but in this country I think the phrase has a broader and more comprehensive meaning when the word refutation as' therein used is rightly understood. One primary meaning of reputation is, a thinking over, pondering, considering, reflecting upon. This meaning, to my mind, is involved in the word as used in this connection ; and in respect to death, I venture to assert that it is the matured product of the family thought and reflection upon the known circumstances and incidents of the case, considered with reference to the character and habits of the person whose death is in question. That thought and reflection lay hold of those circumstances and incidents and brood over them, gradually therefrom creating belief, which, though weak at first, continually increases and strengthens as the mental operation goes on, until at last it becomes a settled and an abiding conviction in the family mind. Then, and not till then, is the product matured, is reputation accomplished. This is family reputation as distinguished from family history handed down by declarations of deceased members of the family. Viewed in this light, such reputation is a fact, of which the law takes cognizance as evidence, because it regards it as sufficiently deserving of consideration as a means of proof to entitle it to be submitted to a jury. If
*384evidence, it is manifestly original and primary evidence ; and therefore it makes no difference with its admissibility that the circumstances and incidents that constitute the seed of that product appear in the case, so that the jury has before it substantially the same material from which to draw inferences and conclusions that the family had. This is shown by Cochrane v. Libby, 18 Me. 39. Much other testimony was introduced in that case to prove death, and it was evidently what the family belief of death was based upon ; yet family reputation was received, and the court said it was j>rima facie evidence of death.
In this country the authorities on the subject are conflicting. Some of the cases, and the text-writers generally, I think, sustain the view for which I contend. Thus, in Clark v. Owens, 18 N. Y. 434, the lease in question was for the longest of three lives. Plaintiff proved the death of two of the persons, and gave evidence that the third, if living, would be eighty years old : that he had not been heard from for fifty years ; and that for over forty years he had been reputed' among his family and connection to be dead. The court sustained the admission of the reputation, and said that it is well settled that on all questions of genealogy, and generally on questions relating to births, deaths, and marriages, in the absence of higher evidence, resort may be had to what is commonly said and understood to be true among the immediate relatives and family connections of the party to whom the inquiry relates. It is true the court said, “in the absence of higher evidencebut as this evidence, if admissible at all, is original and primary and in no sense secondary, there is no higher evidence in degree; and although with other evidence of death in the case it would be cumulative, yet it would not thereby be rendered inadmissible, nor because other evidence of more probative /orce could be obtained. It would stand in this regard like evidence generally of equal degree. If, without the admission of such evidence, *385the difficulty of proving death in some cases and the impossibility in others necessitated its admission as a rule of law, as I think they did, then that rule is general in application, and in administering it you cannot take cognizance of the ■difficulty or the impossibility in the particular case, and admit •or reject the evidence as the necessity of the case seems to re■quire.
Norris v. Edwards, 90 N. C. 382, 47 Am. Rep. 526, when carefully examined, will be found to sustain the admission of general belief prevailing in the family as proof of death.
In a Wisconsin case, the name of which I have not before me, testimony relating to family connection and membership, and to the death and times of death of members, and whether they had been or were married or not, was held admissible in view of the nature of the subject, although based in part on the course of speech and understanding in the family instead of on direct personal knowledge.
In Ringhouse v. Keever, 49 Ill. 470, reputation of death .among acquaintances was admitted because the deceased left no relatives. His death was announced in the newspapers, and he was spoken of by his acquaintances as dead. The court said that in a population as unstable as theirs, the refusal of all evidence of reputation in regard to death unless it came from family relatives, would sometimes render proof of death impossible though there might be no doubt of the fact, and thus the ends of justice be defeated. This case expressly recognizes the admissibility of family reputation in regard to death, and is authority for its admission, for if .reputation among acquaintances is admissible, all the more is family reputation. In Ewing's Heirs v. Savary, 3 Bibb, 235, it was proved that in his family and among his acquaintances where he had resided, the person was reputed to be dead. The court said that such evidence was undoubtedly .admissible when, as there, the death happened out of the *386state. In the case at bar, the person whose death is in? question, if dead, died out of the state, if that makes any difference, which I think does not.
In Jackson v. Elz, 5 Cow. 314, the question was whether John Tool died at a certain place in the spring of 1779, at which time he was a soldier in the American army. Witnesses for plaintifF testified that he was lost or missing when-returning from a tavern to the camp on the night of St. Patrick, and that it was afterwards generally reported and believed that he was dead. Proof of the report and belief was-not objected to, but the court said that in analogy to cases-of pedigree, etc., it seemed to be admissible, and that the fact that a soldier or any other person was missing at a particular time, accompanied with a report and general belief of his death, must in many cases be not only the best', but the only, evidence of his death that could be supposed to exist. The circumstances of the case in hand make especially applicable what is there said.
In Jackson v. Boneham, 15 Johns. 226, general opinion? in the family that a certain member of it was dead, testified to by a sister of such member, was objected to as hearsay, but held admissible.
I do not care to discuss as a separate proposition the admissibility of reputation among friends and acquaintances, for I think it stands in this regard on much the same ground as family reputation.
The other ground stated in the opinion for excluding all-the evidence of reputation is not, to my mind, another ground at all, but only another phase of the same ground already taken by the court; and if that ground fails, this must fail also.
If the position I have taken is right, it is obvious that the fact that the reputation did not antedate the controversy goes only to its weight as evidence, not to its competency.