ON APPLICATION FOR A REHEARING.
Nicholls, C. J.The court has carefully considered the reasons assigned for and against the application made for a rehearing of this ease, and the arguments of counsel for the appellant and the appellees, and it is as fully prepared to reach and announce its conclusions now as it would be upon a rehearing formally granted. The court is not fully satisfied with the condition of the evidence, and is of the opinion that the interests of justice will be best subserved by setting aside the *152judgment which it has heretofore rendered herein, and also that of the District Court, which has been appealed from, and remanding the cause to the District Court, there to be reinstated and tried on the evidence already taken in the case, and such additional evidence as both parties can and shall produce.
For the reasons assigned:
It is hereby ordered, adjudged and decreed, that the judgment heretofore rendered by the court in this case bo, and the same is hereby set aside, and it is further ordered, adjudged and decreed, that the judgment of the District Court appealed from, be and the same is hereby annulled, avoided and reversed, and the cause remanded to, and reinstated on the docket of the District Court to be by said court tried on the evidence and testimony already taken in the case, and such additional evidence and testimony as the parties can and shall produce.
It is further decreed that the question of costs be reserved, to be disposed of on the final judgment in the cause. A formal rehearing being unnecessary, the application for the same is hereby refused.
Monroe, -I.The only question left in dispute in this case is, whether the decedent was Rachel Fanny Brown, born in Lawrence County, Ohio, or Fanny Minerva Seymour, said to have been born in England, and to have come to this country on the ship “Waterloo,” in 1846 ? The testimony taken since the case was remanded, has brought out some of the facts more distinctly. The judge a. qiio has again decided in favor of the Brown claimants (Mrs. McVey having' departed this life in the meanwhile, and having been succeeded by her only daughter, and sole heir, Mrs. Rosanna McVey Fuller), and the State has again appealed.
The following facts are either undisputed, or else are established, by such an overwhelming preponderance of proof and probability as to place them, practically, beyond dispute, to-wit:
The woman whose succession is in controversy, at that time publicly known as Fanny M. Smith, and also giving, in conversation, the name Fanny M. Seymour, was leading the life of a prostitute in New Orleans, as early as the winter of 1846-47. She was sued in 1847, as Fanny M. Smith, for the funeral expenses of one Smith, who was said to have been her husband, and to have died in New Orleans, in the *153parish prison; and, in September and October, 1848, she was brought before the recorder on several occasions and acquired something' of a police record. In 1849, she went to California, either by way of Cape Horn or the Isthmus, was in San Francisco in 1850, and, thereafter, in Sacramento until about December 21, 1853. In San Francisco she appears to have been identified and associated with “Reub Raines (or Reynes, or possibly Beynez), a gambler, and, in Sacramento, she was the proprietress of a brothal known as the “Palace,” and continued her association with Reynes (Raines, or Reynez), who then kept a gambling house known as the “Eldorado.” She was commonly understood, at that time, to be the sister of “Leah,” or “Leo Duell,” (who was -also known as Henrietta McCormack, and as the wife of “Charley Green,” the proprietor of a stage line, and who is indisputably identified as Sarah Henrietta Brown, of whom we shall have occasion to speak hereafter), and they passed, and recognized each other, then, and afterwards, as sisters. In November, 1850, the decedent, as “Fanny. Seymour,” sued John A. Van ITouten; in San Francisco, on a promissory note, and, in June, 1851, filed an affidavit for continuance , in which she mentions the name of Leah Duel] as one of the witnesses, whose testimony she desires to be heard. In this suit, she obtained judgment for $3010.00, with interest, which judgment appears to have been subsequently assigned to E. J. O. Stevens and “Reuben Raquez,” and to have been, thereafter, satisfied March 7, 1853. Upon the evening of December 20, 1852, at her house, called the “Palace,” in Sacramento, which she conducted as Fanny Smith, she shot Albert Putnam, a stage driver, and was threatened with hanging by a mob, but was taken by the marshal to a prison brig, in the river, and thereafter admitted to bail in the sum of $3000.00, after which she disappeared, forfeiting her bond. Her associate, Reub Raines, or Reynes, is said to have signed the bond, and as a person, whose name is given as Reuben Raquez, subsequently became one of the assignees of the judgment obtained by her against Van Houten for $3010.00, it seems not improbable that, allowing for error in the transcription of the name, he was one and the same as her friend and associate, Reub Reynes. The decedent was next seen at Acapulco, Mexico, and then, in May, 1853, at Aspinwall, Panama, at which latter place she was living, as his wife, with Abraham Miller Hinckley, the agent of Burford & Go., a concern engaged in the express business. She was not then married to Hinckley, but subsequently married him in New York City. October *1541, 1853, and was divorced from him, by a judgment rendered by Judge Peabody, of the Supreme Court of New York, December 15th, 1856. During’ her marriage she was a good deal'in New Orleans, without her husband, but spent most of the time with him in New York, making a short visit to Panama. After.her divorce, which she obtained as “Fanny Maria Ilincldey,” she left New York for Havana in January, 1857, and may possibly, at that time, also have visited Jamaica. Whilst in Havana, she seems to have become the subject of animadversion of some kind, and to have obtained certificates of character, as will appear hereafter. She appears to have reached New Orleans in May, 1857, and it seems likely, that, upon her arrival in this city, she, for the first time, made use, for public purposes, of the name “Fanny Sweet,” though then and thereafter, for the purposes of any legitimate business, she called herself Fanny Minerva Seymour, widow, or divorced wife, of Abraham Miller Hinckley. Tn 1860, and later on at various dates up to November 13, 1895, she executed, in New Orleans, notarial acts of purchase and sale, and wills, etc., in which she so described herself; the last act being an instrument by which, upon November 13th, 1895, she annulled all wills previously made by her, and in which she was described as “Fanny Minerva Seymour, widow by first marriage of Abraham Miller Hinckley, and widow by second marriage of William R. Mills.”
In 1861 she left New Orleans with one William G. Stevens, who is said to have had a commission to buy gunpowder for the Confederate government. She was, on this occasion, dressed as a man, and passed as “Freddy Stevens,” but her sex was discovered in Texas, and the affair attained considerable notoriety, more particularly as she reappeared in New Orleans not long afterwards, without Stevens, who was reported dead. Lincoln, a. witness who was examined for the purposes of the present case, testified that he also accompanied Stevens, but quarrelled with him upon finding- out the sex of the third member of the party, and that he understood that Stevens died of a congestive chill. However, that may be, Mrs. Fanny M. Hinckley sued his succession on certain drafts which she brought back with her, and, in May, 1865, recovered $3255.55, less her attorneys fees. She thereafter lived in New Orleans, using the name “Fanny Sweet” for the purposes of the demi-monde, and otherwise using the name “Fanny Minerva Seymour, widow, or divorced wife, of A. M. Hinckley,” as hereinbefore stated, and, upon August 9, 1879, she married William Need Mills, *155with whom she lived until his death ill 1891. After that event she continued to live in New Orleans until she was called to her final account, upon January 6th, 1896. She left an estate valued at $54,765.68, consisting mainly of United States bonds, which had been registered in the name of “Fanny M. Hinckley,” although the money with which they were purchased is said tó have been acquired from the estate of her last husband. There was also found among- the assets of the decedent a bank box in which was a package (being an envelope sealed with mucilage) bearing- the following- inscription, to-wit:
“Kind friend will you please, at my death, burn this package and oblige the dead. Mrs. Fanny Mi Hinckley.” “I will plead for you in Heaven, if you do as I request, and burn this package.”
The evidence shows that this package was made up at her house in New Orleans, and under her direction and immediate supervision, of papers furnished by her, and that the inscription was placed thereon at her request and dictation, and that she allowed the person who performed this service to see the papers concerning the divorce, which were enclosed in the package, but would not allow him to see the letters. The bank box was placed in the custody of the notary who made the inventory of the estate, and the package was produced by him, and opened, in the presence of the court and of all parties in interest, upon the motion of the counsel representing- the public administrator, and was found to contain:
1. Certified copy of the decree of the Supreme Court of New York, rendered December 15, 1856, dissolving- the marriage between Fanny Maria Hinckley and Abraham Miller Hinckley.
2. Copy of the opinion of Judge Peabody, upon which said decree was based, in which he finds that the defendant admitted, and was guilty of, certain acts of adultery charged against him; that they had not been condoned by the. plaintiff, and that the plaintiff was not shown to have been at fault.
3. Trotter purporting to have been written and signed by C. A. Stetson, dated, Astor House, February 5, 1857, addressed to Mrs. Fanny Hinckley, in which the writer says, inter alia: “I have heard' with no little chagrin, that slander has been busy with your interests. Nothing- could be more unjust toward you than any suspicion of your purity.” And proceeds further to assure her of her virtue at* consider- ■ able length.
*1564. Letter purporting to have been written and signed by R. M. Blatchford, dated New York, February 6, 1851, addressed to Col. Blythe, American Consul, Havana, in which the writer, among' other things, says: “I have not the pleasure of a personal acquaintance with you, but that shall not deter me from writing to you in behalf of a worthy and deeply wronged lady, now in Havana. I allude to Mrs. Hinckley, recently divorced by our law from her husband. The proceedings were had before Judge Peabody, of this State, who will, I doubt not, add his testimony to mine. I should be very sorry if this deserving lady should suffer from any unjust and cruel suspicions and slanders. She has suffered enough already from one who was bound to protect and cherish instead of abusing' and neglecting, her.” etc.
The record in the divorce suit, a certified copy of which is in evidence, shows that the proceedings were begun February 1, 1856. In her complaint, the plaintiff alleges that she married the defendant in New York, October 1, 1853; that three weeks later she went to New Orleans and her husband to Panama, where she joined him in March, 1854; that, in May, 1854, they returned together to New York, where they remained until August 27th, 1854, when she went to New Orleans, leaving him in New York. That her husband remained in New York until October, 1854, when he again went to Panama, and there remained (save for one visit to New York, in February, 1855), until April 1855, when he returned to New York, where she joined him in June, 1855, after which they remained together in New York until she left him, January 17, 1856, and brought the suit for divorce. She charges him with certain acts of adultery, alleges that she did no t condone them, and did not cohabit with him after August 27th 1854, and prays for judgment dissolving the marriage — signing- the affidavit, attached to the complaint, “Fanny Maria Hinckley.”
The defendant, in his answer,.alleges that the plaintiff was a woman of bad character and antecedents when he married her, and that he took her as a wife upon her solemn pledge that she would reform, but that she went to New Orleans in the summer of 1854 and remained until the spring of 1855, and that he learned, through the press, and through his correspondence, that, her conduct in New Orleans was so infamous, that he did not suppose that she would ever seek to live with him again, and that he, himself, at that time, indulged in some of the excesses charged against him. That, thereafter, however, she made overtures, as a result of which they were reconciled and reunited, upon *157a basis of mutual forgiveness, and lived together until within a few days of the filing of the suit.
The defence appears to have been perfunctory, and the judgment not only gave the plaintiff the divorce for which she asked but also furnished her with a certificate of character, to which she added the letters heretofore mentioned, and thus made up a record which 'she seems to have preserved and cherished for the remaining forty years of her life.
Other facts equally undisputed, or equally established by proof and probability, are as follows, to-wit:
John Jacob, or Jacob Brown and Rebecca Smallwood, were married in Montgomery County, Virginia, December 26, 1814, and, thereafter, moved to Lawrence County, Ohio; first, to the Sand Fork of Symmes Creek, and, afterward, to Quaker Bottom, on Paddy Greek, in Rome township, where they lived together until about 1833, when Brown left his wife, and, subsequently, died, in Warren County. Rebecca remained in Quaker Bottom, on a farm which she appears to have owned, and, at a later period, married John White, but did not long survive the marriage. She died in 1851. Whilst Jacob Brown and his wife lived together in Quaker Bottom, they had five children who attained majority, viz:
1. James, born about 1816, died, unmarried, in 1838.
2. Mary, called “Polly,” born December 7th, 1821,'married James L. McYey, and lived in Lawrence County until toward the close of her life, when she moved to 'Huntington, West Virginia, where she died since the institution of these proceedings, and after having given her testimony. She has been succeeded herein as plaintiff by her only daughter, and heir, Rosanna McVey Fuller.
3. Sarah Henrietta, born about 1823, or 1824, married E. E. Swart-wood, from whom she soon separated. She appeared as a public woman, in Cincinnati, in the early forties, and was first known as Sal Woods. Subsequently, she became identified with one John McCor-mack, a carpenter, and is said to have married him. She, at all events, took his name, and called herself Henrietta McCormack, and, in that name, kept an establishment in Bank Alley, in Cincinnati, for six or eight years preceding- the year 1849. McCormack did not, however, live with her, but lived with his mother. In 1849, Henrietta sent to her mother a little girl called Cordelia Shelly, but subsequently known as Cordelia McCormack, who remained with Mrs. Brown until the *158latter’s death, and was then taken by Mrs. MeVey, and lived at her house until, probably, 1854, or 1855. After thus disposing of the little girl, Henrietta went to California, reaching there in 1849, or 1850, and, after stopping in San Francisco, established herself in 'Sacramento as “Leah,” or “Leo Duell.” She also made use of the name McCormack, and built a house in Sacramento called the “McCormack House.” She soon became associated with “Charley Green,” proprietor of a stage line, and is supiDosed to have married him; she, at all event, lived with him, as his wife, and, sometime between 1853 and 1857, visited, with him as her husband, her relatives in Quaker Bottom, Ohio. Upon the occasion of this visit, she called herself “Mary Henrietta Green,” and explained her use of the name “Mary” by saying that she had taken it upon entering the Catholic Church. Upon leaving she took with her the little girl, Cordelia, who was an inmate of Mrs. McVey’s house, and she seems to have taken care of this little girl thereafter until the latter’s death, in California, a few years ago. Charley Green subsequently died, and Henrietta married Ezra Wool-son, who survived her. She died in Sacramento, in 1872, and left her property to Charles Clinton Brown, her brother, subject to a condition that if he failed to comply with certain wishes, expressed in her will, the property should go to the children of her niece, Rosanna MeVey Fuller. Included in the property thus disposed of was the “McCormack House,” which was still standing'and still known by that name, and, for aught that appears, is so to this day. During the years 1851 and 1852, and, perhaps, as early as 1850, Henrietta McCormack, or as she was then more publicly known, until she married or became identified with Green, Leah, or Leo, Duell, was commonly understood to be the sister of Fanny Smith, otherwise called Fanny Seymour, the, then, proprietress of the Palace in Sacramento, the woman whose succession .is here in controversy, and each recognized and spoke of the other as her sister.
4. Rachel Fanny, whose history will be considered later, on.
5. Charles Clinton, born February 9th, 1829, worked, after attaining the age of about thirteen years, on flat boats on the Ohio and Mississippi rivers and in the swamps of Louisiana, returning to his home in Ohio at intervals of five or six months, or a year. He bought the “farm” from his mother and lived there after her death until sometime in November, 1857, when he left Ohio and went to Missouri, and, finally, to Sacramento, California, where, upon the death of his sister, *159Mary Henrietta Woolson, in 1872, being one of her executors and universal legatee, he settled her estate and went into possession thereof, and was living there, January 6th, 1896, when the decedent departed this life. He saw a notice of her death in the paper of January 9, left for New Orleans on the 15th, reached here January 20th, and, with his sister, Mrs. McVey, filed a petition herein January 30th, 1890, claiming the estate as one of the heirs.
Reverting to the history of Rachel Fanny Brown, and still confining ouselves to facts which are undisputed, or which, as we think, are so clearly established as to be beyond dispute, we find:
That she grew up, as did the others, at Faddy Creek, and, though she may have gone off, at times, to work at Guyandotte, or elsewhere, or may have gone off for other purposes, and may, now and then, have been an inmate of her sister’s house on Bank Alloy,-in Cincinnati, she did not permanently leave home until the fall of 1846; after which, until some time in 1849, she was heard of, by the Lawrence County people, as leading a disreputable life in Cincinnati and New Orleans. Tn 1849 she reappeared, bringing with her, as from her sister Henrietta, the little girl Cordelia, and leaving this little girl with her (Rachael Fanny’s) mother, she went to California, not with her sister Henrietta, who crossed the plains, but by way, either of Cape Horn, or the Isthmus of Panama, and nothing more was seen of her in Ohio until the spring or summer of 1857. In 1857, she again visited her old home in Ohio. Upon this occasion, as “Fanny Maria Hinckley,” she was, for awhile, the guest of her brother, Charles Clinton Brown, at the old farm. From his house she went to that of her sister, Mrs. McVey, and from McVey’s, having quarrelled with her brother-in-law, James L. McVey, she went to board with Wallace Lewis. She expressed a desire to have her mother’s remains removed from the Rome churchyard and reinterred on the farm which had been her home, and, after some opposition, her brother, Charles Clinton, and her sister, Mrs. McVey, consented, and the former, who was joined by his wife, made a deed to her of a piece of ground — being part of the farm — suited to that purpose. This deed is dated 'September 15, 1857, was duly recorded October 30th of the same year, and contains the following-recital, to-wit:
2. “Know all men by these presents; that’ wo, Charles Clinton “ Brown and Frances Elizabeth Brown, his wife, of Rome, in Law- “ rence County, and State of Ohio, for, and in consideration of, ten *160“ dollars, to us paid by Rachel Fanny Maria Hinckley, of the City of “New York, in the 'State- of New York, the receipt whereof is duly “ acknowledged, do grant, bargain, sell, and convey to the said Rachael “Fanny Maria Ilinckley, her heirs and assigns forever, the cemetery “in which her mother, Rebecca White, widow of John J. Brown, de- “ ceased, is buried, and in which our sister, .Rachael Fanny Maria “ Hinckley has lately caused a monument to be erected as a tribute of “ love to her mother.” And then follows a more particular description of the property.
As the result of her quarrel with McVey, Mrs. Hinckley caused a criminal action to be brought against him in a justice court, and also brought a civil action in the Court of Common Pleas, and, in both, she was represented by John S. George, Esq., an attorney at law', whose office was at Ironton, in Lawrence County. The criminal action w'as begun by an affidavit, dated September 12, 1857, and reading, in part, as follows, to-wit.’ ■
“R. F. M. Hinckley, being duly sworn, according to law, deposeth “ and sayeth, that on or about the 30th day of August, 1857, at the “ county of Lawrence aforesaid, one James L. Mc'f'ey, late of said “ county, did knowingly send to this affiant a writing signed with a “ fictitious name and containing wilful and malicious threats of “ injury, which said threats w'ere intended and designed as threats “ against the affiant, and are in the words and figures following, that “ is to say:
“Rome, August 30, 1857.
“To the celebrated, far-famed, and w'orld-renowned New York lady. “ Notice is hereby given that three or four days will bo given you to “ quietly leave the place, and if the above requisition is not complied “ with, within the stipulated time, the civil citizens of this place will “ no longer allow' their peace and quiet to be disturbed by the averice “passions of such an outraged female monster. You may expect a “ rich suit of tar and feathers, and a free pass down the river on a “ slab. The above is the sentiments of many citizens of this place, who “ wdll not fail to -execute their designs.
“Judge LyNCii.”
“And this deponent says she verily believes that one James L. Mc- “ Yey is guilty of the -facts charged, and further the deponent sayeth “not. (Signed) R. F. M. Hinckt.ey".
*161The matter came up for hearing, September 14, 1857, and was com tinned upon the application of John S. George, Esq., who appeared for the State, on the ground that Clinton Brown, a material witness, was absent. It was again called for trial September 17th, and was heard, though the witness Brown was still absent, and the proceeding was dismissed at the cost of the prosecuting witness. The civil action in the court of Common Pleas, however, remained pending.
John S. George was a prominent lawyer at Ironton, who died in 1895. He had associated with him, for some years before his death, Mr. J. N. Eoss, also a member of the bar, and, after his death, his papers were turned over to Mr. Eoss, who was charged with the settlement of his business. Among these papers were found the deed from Clinton Brown and wife, which has been mentioned, and also a number of documents, shown to be in the handwriting of Mr. George, and purporting to be copies of letters written by him to Mrs. Fanny M. Hinckley, and to other persons concerning her, with indorsements in the same handwriting to the effect that they were copies of originals which had been sent by mail. There were also found other papers purporting- to be the original answers from Mrs. Hinckley, and from the other persons referred to above, to the letters addressed to them by Mr. George. These documents have been brought up in the originals, and are in substance as follows, to-wit:
“A.” Copy of letter from John S. George to Hon. E. M. Blatch-’ ford, New York, dated Ironton, September 20th, 1857, inquiring as to the financial and social standing- of Mrs. Fanny M. Plinckley.
“D.” Document purporting- to be the original answer to the above, dated New York, September 29, 1857, apparently in the same handwriting, and similarly signed, as the letter addressed to Col. Blythe, American Consul, Havana, dated February 6th, 1857, and found in the bank box of the decedent. The writer replying to Mr. George’s inquiries, says, inter alia:
“I have your letter of the 20th instant, inquiring about Mrs. Hinck- “ ley. My acquaintance with her is limited. I knew her, profession- “ ally only, last September, and she left here in January, for Havana, “ since which time I have not seen her. She applied for and obtained, “ last winter, a divorce from a very bad husband. I never saw her in “ society, but believe her to be a perfectly virtuous woman. I had “ supposed that she would have been here .this past summer, but I have “heard nothing of, or from, her since early in the season, when she *162“ wrote me that she was without means to get here, and I collected for “ her $15, from some one, who was indebted to her and forwarded it to “ her,” etc.
“B.” Copy of letter from John S. George to C. A. Stetson, New' York, dated Ironton, October 5, 1851, also inquiririg as to the financial and social standing of Mrs. Fanny M. Ilincldey.
“0.” Document purporting to he the original answer to the above, dated Astor House, New York, October 10, 1857, in which the writer says: ' 1
“The only knowledge I have of Mrs. Hinckley was gained during the “ iiayment of a debt contracted by my old partner. She won the re- “ gard of those who came in contact with her. Of her pecuniary re- “ sources, I know nothing. Report states that she owns property in “ New Orleans.”
This letter is apparently in the same handwriting, and is similarly signed, as the letter addressed to Mrs. Fanny Hinckley, found in the bank box of the decedent.
“E.” Document purporting to be an original letter from Mrs. Ilincldey to Mr. George, dated New York, December 17, 1857, in which the writer speaks of having arrived in New York on “Friday”; says that her stay-in Cincinnati was longer than she expected; that her affairs in New York are in a deplorable condition, and requests him to ’address his letters to Mrs. F. M. Ilincldey, New York, under cover to Mrs. Anderson.
“A2.” Copy of letter from John S. George, dated Ironton, January 1-1, 1858, addressed to Mrs. Fanny M. Hinckley, in which the writer, mentions previous letters and urges her to let him know what she wants done in her case, which he warns her will be called up at the ensuing March term.
“F.” Document purporting to be the original answer to the above, dated New York, February 20, 1858, in which Mrs. Hinckley acknowledges the receipt of Mr. George’s letter, and “ashores” him that his other letters had not reached her, inquires as to the truth of certain reports about McYey, and asks what Mr. George thinks about going on with the case against him.
“A4, A5, A3, Al.” _ Copies of letters from John S. George to Mrs. Fanny M. Hinckley, dated February 26, May 5, June 2, and August 15, 1858,’respectively, stating condition of case against McYey and urging action of some kind.
*163These efforts of her attorney, were, however, fruitless, and in September, 1858, the civil action against McVey was dismissed, as the criminal action had been dismissed the year before, at the cost of Mrs. Iiincldey.
We have seen that the woman, whose succession is the subject of the present litigation, was one and the same as Fanny Maria Hinckley, who was divorced, by judgment of Judge Peabody of the Supreme Court of New York, December 15, 1856. The question then is, was that Fanny Maria Hinckley, one and the same as the Fanny Mari'a Hinckley who spent the summer of 1857 in Lawrence County, Ohio, and built a monument over the grave of her mother, Rebecca White, widow of John J. Brown?
The evidence to that effect, thus far recapitulated, has been circumstantial, but we think it would be sufficient, standing alone, to satisfy any reasonable mind, that she was the samé woman.
Names are given to persons, as they are to animals, and to objects, to distinguish the one from the other, and unless they are very common, they serve the-purpose fairly well. Of course, there might be two x>ersons bearing the name “Fanny Maria Hinckley”, and if that were shown to be the case, and it became necessary to distinguish them apart at a particular time or for a particular purpose, something other than the name would have to be resorted to: — thus as two persons can not occupy the same space at the same time, and as one person cannot be in two places at the same time, a particular time might be selected, and, if it was found that at that time, there was a Fanny at one place, and also a Fanny at another, and different, place, it would be conclusive that there were two Fannies; whereas, if it appeared that the two, supposed Fannies were actually occupying the same space, aiid figuring in the same identical role at one and the same time, it would be demonstrated that there was in reality but one.
In the case at bar, the Fanny who came to New Orleans in May, 1857, and the Fanny who, later in the same year, appeared in Ohio and built a monument to her mother, came from New York. The one called herself in New Orleans Fanny Minerva Seymour, divorced wife of Abraham Miller I-Iincldey; the other called herself, in Ohio, Mrs. Rachael Fanny Maria Hinckley, the divorced wife of a very bad husband named Hinckley, but each of them called .herself “Fanny Maria Hinckley” in New York, where, in that name, the divorce was obtained. If, in the winter of 1856-7, there had been two divorces *164granted, by tlie Supreme Court of New York, to two women, each calling herself Fanny Maria Hinckley, it could have been proved just as easily as the one divorce, so granted, was proved, but, as no such proof was made, it must be presumed that only one such divorce was granted and hence, that the Fanny Maria Hinckley calling herself “Fanny Minerva”, in New Orleans, and “Rachael Fanny Maria”, in Ohio, were one and the same. And this deduction is strengthened when — if we assume that they were one and the same, we consider that the “one” had been previously known, in New Orleans, as “Fanny Minerva”, and in Ohio as “Rachael Fanny”, and had, therefore, a reason for calling herself by &■ different name in the two communities.
Again: the woman who came to New Orleans, by way of Havana, brought with her, along with the opinion and decree in the divorce case, two letters which she valued so highly that she preserved them until she died, nearly forty years later, the one written by O. A. Stetson, and the other by R. M. Blatchford, both certifying to her character. Later on, in the same year, a woman known to be Rachael Fanny Brown, but bearing the name of her in whose behalf the letters were written, became involved in a litigation in Ohio, which put her character at stake, and the attorney employed by her wrote for information upon the subject to 0. A. Stetson and R. M. Blatchford. If we assume that there were two women, each calling herself Fanny Maria Hinckley, who had recently been divorced in New York, we mu'st also assume that 0. A. Stetson and R. M. Blatchford were‘the friends of both of them. But, if those two persons happened, by a marvellous coincidence, each to be friendly to two women bearing the same name, and thus exceptionally and similarly situated, how is it that neither of them, in replying to Mr. George’s somewhat unusual inquiries, asks him to which of the two his inquiries were directed. Still another circumstance which attracts attention is, that, years before, in 1851 and 1852, the woman whose succession is before us, lived in Sacramento, California, as “Fanny Smith”, and “Fanny Seymour”, and was commonly understood, at that time, to be the sister of Leah .Duell, who is shown, beyond peradventure, to have been Sarah Henrietta, the sister of Rachael Fanny Brown, who, 'in 1857, visited her family in Ohio as Fanny Hinckley. It will be remembered that in 1851 and 1852, the name “Hinckley” had not been heard of, and whilst two abandoned women may call themselves sisters without being so, it would be remarkable if Leah Duell calling Fanny Smith her sister, *165thong'll she was not so, it should happen afterwards that Fanny Smith and a woman who was really the sister of Leah Duell should each marry, and he divorced at about the ■ same time from, -men named Hinckley, and not only so, but that they should each, without co-operation with, or knowledge of, the other, call herself Fanny Mafia Hinck-ley, when the name of the one was Fanny Minerva and of the other Rachael Fanny.
In reaching the conclusions which have 'been stated, we have accepted as authentic, the documents found among the papers of Mr. George, as also the letters found in the bank box of the-decedent, for the reason that all the testimony and the surrounding circumstances tend to show that they are authentic. Mr. George died in 1895, after having retired from active practice in 1888. He is shown to have, been a prominent man and a methodical and painstaking lawyer, and we can conceive of no reason why he should have' filed away, and preserved for thirty-eight years, documents which were spurious, or which told an untrue tale. The copies purporting to have been made by him are shown by unimpeaelied and uncontradicted evidence, to be in his handwriting. The letters purporting- to be answers to those written by him to Messrs. Stetson and Blatchford, compare, as to handwriting and signature, with those found in the package left by the decedent and purporting to have been written and signed by the same persons, and their dates, the subject matter, and the place and circumstances of their finding, all point to their genuineness. The same thing may be said of the letters purporting to have been written by htó client, and this much more, that witnesses, who were familiar with the handwriting of the decedent testified to their belief that the letters found among- Mr. George’s papers were written by her and bore her signature. And, finally, if these letters or any of them are not genuine, some effort, we imagine, would have been made to prove it. It is not suggested, however, that there were no such men in New York as 0. A. Stetson and R. M. Blatchford, and we take it, from the evidence, that the one was the proprietor of the Astor House, and the other a prominent lawyer, and that witnesses familiar with their handwriting, and specimens of that handwriting, could easily have been found. And the same thing may be said of the letters of the decedent. But so far from attempting to show that the Hinckley letters found among Mr. George’s papers were not genuine, the only evidence offered on that subject tends *166to sliow that they were written by his client, and that his client and the decedent were one and the same.
In addition to this, there is a great deal of direct evidence identifying Rachael Fanny Brown with the deceased widow of William Reed Mills,
Witnesses have been examined who lived as neighbors to the Browns, in Quaker Bottom, and went to school with them; who knew Rachael Fanny as a girl, at home, who afterwards knew her, in Ohio, as Fanny Maria Hinckley, and later still, in New Orleans, as Fanny Sweet, and Fanny Hinckley; and as the wife of Mills. Others have testified that they visited her house in New Orleans, time and again, with steam-boatmen, whose names they give but who are now dead, who knew her at home, and who talked with her about old times and old acquaintances. Another knew her in Cincinnati and in California as the sister of Henrietta McCormack, and in New Orleans as Fanny Sweet and Fanny Hinckley. The Brown claimants have produced a picture, admitted to be a picture of the decedent, which, considering her apparent age, when it was taken, and the style of the picture itself, must have been taken before the civil war, and they have shown that it has been in the possession of Mrs. McVey since it was given to her by the original in 1851. Rosanna McVey Fuller has produced a pair of earrings which she testifies were given or sent to her by her aunt, and which, upon examination, under a strong glass, appear to be identical with those worn by the original in the picture. Jay R. Brown, the son of Charles Clinton Brown, produces a copy of Milton’s poems which, it is shown, was sent to him by the decedent, and which bears upon the fly-leaf the following inscriptions, to-wit:
“Presented to my beloved wife Fanny.”
“A. J. Sweet.”
“Presented to my beloved nephew, Jay R. Brown.”
“From your Aunt,” “Fanny Sweet/'
“December 27th, 1882.”
And we find no denial that the handwriting of December, 1S82, is that of the decedent.
Upon the other hand, the theory that the decedent was an English girl, who came over on the “Waterloo”, in June, 1S46, has been, as we think, annihilated. The two witnesses, whose testimony is relied upon to support it, were boys in 1846, of ¿leven and sixteen years of age respectively. Moliere, who was born in 1835, when first examined, said *167¡that he was a sailor and had shipped on the Waterloo at Liverpool, having run away from his home in Louisiana and reached that port in ■some way not explained. He testified that there was a young lady on board who told him that her name was Fanny Seymour, that she was going to New York on a pleasure trip and would return to London, “her native home”, and that if he came to see her, she would show him the beautiful sights of the city; that he went to Mexico and, in 1849, to California, where he met her on the street, in San Francisco, and that he afterwards saw, and knew her, in New Orleans, as Fanny Sweet.
The other witness, Peale, testified that he came over on the ‘Water* loo’ in June, 1840, being about sixteen years old (he was born in 1830), and that there was a passenger on board, a lively young girl, named Seymour, he thinks it might have been “Fanny” Seymour, “who was with a family, br some other parties”, that after landing at New York, he went to Toronto, and was near there at school for a year or two, and then came to New Orleans, where he thereafter lived, but he knew nothing and heard nothing of the Seymour girl until 1868 or 1869 (about twenty-two or twenty-three years afterwards), though he says he saw Fanny Sweet in the meanwhile without associating her in his mind with the other. In 1868'or 1869 he was accustomed to drive to the lake, and fell into the habit of stopping at Fanny Sweet’s, and, upon one occasion, in course of conversation, was told by her that she was the same girl with whom he had crossed the ocean in 1846. He says that, in order to recall herself to his memory, she mentioned, among other tilings, that a preacher named Murray, who was also a passenger, had been interfered with bsr some persons on board in an attempt to hold service, and that there was a disturbance.
Since the case was remanded, certified copies of the crew and passenger lists of the “Waterloo,” for the only trips made by that ship in 1846, have been procured from the New York Custom House. The originals appear to have been prepared with great care, and verified by the affidavits of the captain, who' accounted for- everybody on board, those who came on after the ship had cleared as well as those who came on before, and neither the.names “Moliere,” “Peale,” “Seymour,” nor “Murray,” nor any one of them appear on those lists.
Moliere subsequently undertook to explain this by saying that he shipped as a sailor “boy,” and that he came on board after the ship had cleared. And Peale’s statement is that he came on board with a *168party who took the places of some other persons who had taken passage, but decided not to come. These are unfortunate coincidences, but we still do not see why their names should not have appeared in the crew and passenger lists, as did the names of others who took passage irregularly. It is also suggested that the girl’s name did not appear because she came as the mistress of the captain. We venture to doubt whether any such thing' was likely to have been done, on a vessel carrying respectable people as passengers between Liverpool and New York. The captain would, in so doing, have violated the law, the regulations of his owners, and the rules of common decency. Then we have the preacher, Murray, as to whom no explanation is offered, and we conclude, without going further, that the evidence is insufficient to justify the belief that the facts were as stated by these witnesses.
.Fanny Sweet may, in conversation with Peale, have told him and may have convinced him, that she came over with him on the “Waterloo,” having previously learned from him that he came over on that vessel; for she told a great many people that she was English, and that her name was Seymour. She told some persons that she was the daughter of an English admiral, others that she was born in Virginia; to one, she said that her aunt brought her from England and placed her in a boarding school; to another, that her parents died when she was young and that her guardian put her to work in a barroom, and that she was brought over by the captain of a ship (this is the story that she may have told Peale in 1868) ; to still another that her parents were unkind to her and that her governess brought her to this country and placed her with a family in Virginia who treated her badly, and that she ran away when she was about seven years, old; and to still another, that she came to this country when she was ten, eleven, or twelve years old, etc. The only single thing that she was consistent' about was in not telling that her name was Eachael Brown, and that she was a poor, uneducated girl from the banks of the Ohio river. Whether she bad scruples about disgracing the name borne by her mother, or whether she thought that Fanny Minerva Seymour sounded better than Eachael Fanny Brown, is a question that she alone could answer. We are inclined to think, at all eveuts, that in the case of a woman leading such a life as hers, the open and reiterated announcement of a name should rather be taken as an indication that the name so freely given is not her real name. It is said by one of the claim*169ants, Charles Clinton Brown, that his sister Rachael Fanny had some relations with a family of Seymours in Cincinnati, and the inference is suggested that she took the name from that circumstance. This may have been so ,but it is quite as likely that she adopted the name Fanny Minerva Seymour because she did not care to use the name-Rachael Fanny Brown, and the other pleased her fancy.
The attempt to identify Sarah Henrietta and Rachael Fanny Brown with Ann, and Mary Stevens, has been entirely unsuccessful. Several witnesses for the State swore most positively and circumstantially that Sarah, who, as it is claimed, afterwards became Ann Stevens, was chambermaid on the steamboat “S. F. Vinton,” as early as 1847. But it was conclusively shown that the “S. F. Vinton” was not built until 1850. The witnesses, some of them, then undertook to say that it might have been the “Swiss Boy” that she was employed on, whilst others still persisted in saying that she was on the “S. F. Vinton,” at a time -when the counsel for the State, himself, admits that the “S. F. Vinton” was not in existence.
Possibly Sarah may, at one time, have been employed as chambermaid on a steamboat, and her sister Rachael may, at the same time, have been employed as a servant at Guyandotte. If so, it was before the fall of the year 1846, and these circumstances fall far short of proving that the two women were the same as the Steven’s sisters, who are said to have lived on Bank Alley, in Cincinnati, at the same timq that Henrietta McCormack lived there and to have remained there several years after the latter went to California, where she died in 1872, leaving her estate to her brother, Charles Clinton Brown. All the witnesses say that the Stevens sisters, or at least Ann Stevens, and Henrietta McCormack were living in separate establishments on Bank Alley, but it is claimed, nevertheless, that Ann Stevens was Henrietta, or Sarah Henrietta McCormack, and that Henrietta McCormack, who lived next door was somebody else; whilst Mary Stevens, it is said, was not other than Rachael Fanny Brown.
The testimony in favor of this theory is weak and conflicting, and it would be a waste of time to anaylze it. The woman who married George Stevens, the gambler, from all the evidence, was called “Mary Jane.” Her'surname might have been Lewis or Shannon, or something,else. We are satisfied that it was not Brown, and that she had no sort- of connection with the woman whose identity and property is the subject, of this litigation, and who, we think, it has been abund*170antly shown, was Rachael Fanny Brown, sister of Charles Clinton Brown, and aunt of Rosanna McVey Fuller, the claimants before the court.
For these reasons it is ordered, adjudged and decreed that the judgment appealed from be affirmed.