declarations of a person deceased may be shown by the testimony of the same person living, so that a witness may testify as to who is his father or as to his age, although, of course, he cannot know these matters by personal knowledge. Webb v. Richardson, 42 Vt. 465; Houlton v. Mantueffel, 51 Minn. 185, 53 N. W. Rep. 541; Cheever v. Congdon, 34 Mich. 296. With these principles to guide us, and contining ourselves to the consideration of direct testimony, and such hearsay only as is authorized to be received by the well-settled principles above announced, we find that the plaintiff is the son of Octavia Daniels, and was born in December, 1843, at the home of her brother, in Jefferson county, about 12 miles west of Fairfield; that not long prior to this time she had been working in a hotel in Fairfield; that William Alston was then residing in Fairfield, and continued to reside there, substantially without intermission, until the time of his death; that William Alston and Octavia Daniels were acquainted with each other at that time; that each of them was then unmarried; that William Alston intermarried with the mother of defendants soon after the birth of plaintiff; that Octavia Daniels intermarried with one Bradley in 1845, at Agency City, in an adjoining county, where she continued to reside until her death, in 1881; that within a few months after his birth, and under an arrangement by William Alston for a consideration paid, plaintiff was taken to raise by Mr. and Mrs. De France, who lived about seven miles north of Fairfield; that plaintiff lived with the De Frances as a member of their family until the death of Mr. De France, and the marriage of Mrs. De France to one Hite, and with the Hites until the death of both of them; that he was recognized by his mother as her son, and was declared by her to be the son of William Alston; that Mr. and Mrs. De France declared him to be the son of William Alston; and that his alf-sister, the daughter of his mother by her marriage with Bradley, knew him as her half-brother, and as the son of William Alston. With reference to the declarations of Mr. and Mrs. De France, they do not come strictly within the rule requiring such declarations to be by a relative by blood or marriage, but it was their family in which plaintiff was brought up, and we hold that their declarations are admissible by reason of such relationship. It is to be borne in mind that it is not the facts which declarants knew of their own knowledge alone that may be established by such declarations, but the facts of relationship and paternity, and that such declarations are admissible, although they relate only to matters of reputation as the son of Mr. and Mrs. De France. He continued to reside with his foster parents until their death, and afterwards in the neighborhood, until he was more than 30 years of age, and there are many witnesses who testify that they know him now as the same person whom they knew as the foster son of the De Frances. It seems to us that the facts are too numerous, and the evidence too strong, and based on the direct testimony of too many witnesses, to be questioned. It is important also, as explaining lack of direct evidence of some important facts, that all the parties immediately concerned are dead,-William Alston. plaintiff's mother, this mother's brother, and his wife, at whose home the child was born, the husband of the mother, and Mr. and Mrs. De France. The law does not refuse to receive admissible evidence simply because other evidence which would be more satisfactory is unattainable. The very reason for admitting hearsay evidence on such occasions is that "it is the best evidence the nature of the case admits, and because greater evils are apprehended from the rejection of such evidence than its admission." Jackson v. King, 5 Cow. 237, 15 Am. Dec. 468. And see Carter v. Montgomery, 2 Tenn. Ch. 216, 227; Fulkerson v. Holmes, 117 U. S. 389, 397, 6 Sup. Ct. Rep. 780, 29 L. Ed. 915; Eisenlord v. Clum, 126 N. Y. 552, 27 N. E. Rep. 1024, 12 L. R. A. 836; Johnston v. Todd, 5 Beav. 597. By Code, § 3385, the illegitimate son, in order to inherit from his father, unless the paternity is proven during the father's life, must have been recognized by him as his child, and "such recognition must have been general and notorious, or else in writing." The last question for our consideration, then, is whether the evidence shows general and public recognition by William Alston of plaintiff as his son. What is required is not that the father shall have recognized the illegitimate as entitled to inherit, but only that he shall have recognized him as his child. Van Horn v. Van Horn, 107 Iowa, 247, 77 N. W. Rep. 846, 45 L. R. A. 93; Watson v. Richardson (Iowa), 80 N. W. Rep. 407; Crane v. Crane, 31 Iowa, 296. Now, the evidence in this case shows, practically without contradiction, that William Alston, on several occasions, visited the home of Mr. and Mrs. De France when the plaintiff was there as a child, spoke to him as his son, was addressed by him as a son would address a father, took a special interest in him at a time when he was seriously sick, referred to him as his son in conversations with the half-sister and with others, and, finally, not many years before his death, executed and delivered to him a warranty deed for 120 acres of land for the ex never by any action, so far as is shown by the testimony of either plaintiff's or defendants' witnesses, repudiated the relationship. When spoken to in regard to plaintiff as his, son, he never denied the fact, but on various occasions spoke with apparent interest and concern in regard to his welfare. Defendants' counsel contend that expressions attributed to William Alston may be explained on the ground of an interest in the plaintiff arising from some other cause than that of paternity, but it appears that on several occasions persons who were friends or acquaintances of William Alston's spoke to him or joked him about plaintiff being his natural son, thus indicating to him that it was a matter of public comment; and, in view of these facts, acts and conversations on his part thereafter, evidencing an interest in the plaintiff, may properly be construed into a public and general recognition, although, standing alone and apart from the fact of this general belief as known to him, they would not require such an interpretation. But the decision of the case does not depend upon the construction of equivocal acts. There is direct evidence of unequivocal recognition. Many witnesses were introduced by defendants, who testified that they were well acquainted with William Alston, and acquainted in Fairfield and the neighborhood, and that they never heard of William Alston having an illegitimate son; but it is important to notice that in nearly every case they were persons who were not acquainted with the plaintiff. The fact that William Alston did not speak to such persons in regard to the plaintiff as his son is not to be wondered at, and does not tend to overcome the evidence introduced by plaintiff tending to show public and general recognition. With reference to similar evidence, this court has recently said that witnesses called to negative the fact of recognition were "acquaintances of the family, to whom he would not be likely to disclose his relations with this woman [the mother of the illegitimate child], and their evidence throws little light upon Comb's [the father] relationship with her or her offspring." Brown v. Iowa Legion of Honor, 107 Iowa, 439, 444, 78 N. W. Rep. 73. In Blair v. Howell, 68 Iowa, 619, 28 N. W. Rep. 199, it is spoken of as a significant fact as bearing upon recognition that the illegitimate child whose recognition was in question in that case "had no other ostensible parentage, and Bowen well knew this, and knew that others knew it." And the court in that case says that. Bowen's general bearing towards the the evidence did not show a general recognition, but the acts of the putative father there relied upon were less persuasive in their character than those shown in this case; and the same may be said of Markey v. Markey (Iowa), 79 N. W. Rep. 258. In this case there is no reasonable ground to disbelieve the witnesses for plaintiff as to the material facts sought to he established. There are inconsistencies in their testimony in reference to other facts and circumstances which may be easily accounted for by the remoteness in time of the matters with reference to which they testify, without discrèdit to their truthfulness; and we may extend, as we do, equal credence to the testimony of defendant's witnesses, without finding that the credibility of the evidence of plaintiff's witnesses is, in any material respect, impaired. If our conclusion were based upon the credit to be given particular witnesses as to facts contradicted by other witnesses, we should feel impelled to give great weight to the conclusions of the trial judge, before whom a considerable part of the testimony was taken in open court; but his finding for defendants was avowedly reached by the exclusion of a large part of the testimony as incompetent, because hearsay, whereas we find that much of the hearsay evidence was entitled to consideration, under the rule which we have already considered. We therefore find that plaintiff is the son of William Alston, and that he was generally and notoriously recognized by him as such. Reversed. NOTE.-Legitimation and Recognition of a Bastard Child by its Father.-Legitimation of bastards either by subsequent marriage or by act or presumption of law is nothing but a fiction of the law which con siders such offspring as enjoying the same rights and having the same standing as legitimate children. At common law the lot of one born out of wedlock was exceedingly hard. Being of kin to no one he could not be an heir, nor could he have heirs, save those of his own body. Moreover he could never be legiti mated, except, possibly, in extreme cases by Act of Parliament. 1 Black, Com. 459. In nearly every state of the Union the stern rule of the common law has been abrogated, and legitimation is made pos sible by subsequent marriage of the parent or recog nition by the putative father, or both. An examination of some of the most important cases will not be without value as determining just how far this indulgence, under modern statutory enactments can be carried. That the legislature of a state possesses the power by special act to make bastard children legiti mate and capable of inheriting has been decided in the following cases: Beall v. Beall, 8 Ga. 210; Perry v. Newson, 36 U. S. 28; McGunnigle v. McKee, 77 Pa. which deserves careful consideration. In a fewer number of states this is made possible by statute. It is a sad commentary on modern civilization that illegitimacy is more common to day than ever before, especially in the larger cities. It is therefore not unlikely that the question of legitimacy and legitima. tion will arise more frequently in the future than they have in the past. In the first place we notice that the statutes relat ing to the recognition and adoption of illegitimate children are to be liberally construed, except as to proof of paternity required. In re Jessup, 81 Cal. 408, 21 Pac. Rep. 976. In this case petitioner was shown to be the illegitimate son of the testator J. Many witnesses testified that J had taken charge of him from his birth, named him after a favorite uncle, provided him with the best nurses, sent him to school and college, dressed him expensively, often spoke of him and introduced him to his friends as his son, often declared his intention to leave him al bis prop erty, and always manifested much affection for him. On the other hand petitioner was kept in the family of a colored woman, whose mother had buised him, and went by her name. J was never married, Bor had what could be called a home, he living much of the time with a mistress; and it appeared that he did not have petitioner assume his (J's) name, because he feared interference from the mother's family. A number of his business and social acquaintances tes tified that they never heard him speak of having a son, but it appeared that he was a reticent man. Held that the evidence justified the finding that J adopted him under the statute "by publicly acknowl edging the child as his own, receiving it as such into his family, and otherwise treating it as if it were a legitimate child." The status of a bastard with refer ence to its legitimation by the acts of the father are determinable by the laws of the latter's domicile, and not by the laws of the domicile of the child and mother. Blythe v. Ayres, 96 Cal. 532, 31 Pac. Rep. 915, affirmed 102 Cal. 254, 36 Pac. Rep. 822. In this case plaintiff's putative father was at all times dom iciled in California, her mother at all times domiciled in England, and plaintiff was born in England, and resided there continuously till her father's death. The court held that as the father was domiciled in California, both at the time of her birth, and at the time he performed acts alleged to have resulted in her legitimation, and as California laws authorize the legitimation of bastards by the doing of certain acts, plaintiff was at all times possessed of capacity for legitimation under the statute. See also Lingen v. Lingen, 45 Ala. 410, where it was held that, under a statute regulating the legitimation of bastards, a child of parents never married, legitimated by the laws of a foreign country, cannot inherit real estate in Alabama, and the fact that the child was begotten in Alabama did not alter the case; also the case of Wil liams v. Kimball, 35 Ala. 49, 16 South. Rep. 283, 48 619, 28 N. W. Rep. 199. Verbal declarations of the father of a bastard that the latter shall be supported out of his estates after his death do not give the bas tard a right of action against his father's administrator. Dunican v. Pope, 47 Ga. 445. To empower an illegitimate child to inherit from his father, the recognition provided for by the Revison § 2442, need not be by a formal avowal, but by letters. Crane v. Crane, 31 Iowa, 296. The case of Brown v. Belmarde, 3 Kan. 41, conflicts with the decision in the principal case on the validity of acts of recognition before the passage of an enabling statute. In that case it was held that the act of 1859, declaring tha illegitimate children should inherit from their father if recognized as his children in the manner pointed out by the act, cannot apply to a recognition made before the passage of the act in the form afterwards prescribed by it. The court uses this language in explaining its position: "It is said that there was suflicient evidence to warrant the jury in finding that the father did in the manner required by the statute, recognize the child as his own. Whether there was or was not such testimony is wholly immaterial. No recognition prior to the death of Lavonture, however general or notorious, nay, although it were in writ ing, could legitimate the child if born out of lawful wedlock, or impart to it a heritable quality. At the time the recognition must have taken place there was no law in force giving to that act such an effect. To give it any legal effect whatever there must have been some law in existence prescribing what that effect should be. The act of 1859 cannot reach back and attach to an action, which at the time of its performance was entirely indifferent, such grave, legal Consequences." A peculiar state of facts is disclosed in the case of Ash v. Way, 2 Gratt. (Va.) 203. A bastard married and died, leaving a legitimate child, and the parents of the bastard afterwards married. The father of the bastard, before the father's marriage in the lifetime of the bastard, recognized her as his child, and also after his marriage, which was after the death of the bastard. Held, that the child of the bastard might inherit through his mother from her father. Where the illegitimate child has been legitimized in accordance with the terms of the statute, such child inherits "as if legitimate;" and, in case of the death of such child leaving children, such children of the illegitimate inherit from their grandfather such portion as their mother would have inherited from his estate. Brewer v. Hamor, 83 Me. 251. The well known exception to the rule excluding hearsay testimony in cases of pedigree is an important phase of this subject and one often passed upon by the courts, but is, notwithstanding that fact, not susceptible of exact limitation, each case resting upon its own peculiar facts. A few general rules set the outside boundaries beyond which the courts may not go, but it to be observed that the tendency, in ----- proof of the paternal descent of natural children may be made ing the following ways: 1. By all kinds of private writings in which the father may have ac knowledged the bastard as his child, or may have called it so. 2. When the mother of the child was living in a state of concubinage with the father and resided as such in his house at the time the child was conceived. 3. When the father, either in public or in private, has acknowledged it as his child, or has habitually called it so in conversation, or has caused it to be educated as such. Badillo v. Tio, 6 La. Ann. 129. Statements made by one charged with being the father of a child born out of wedlock, that he had a boy somewhere, that the mother of the boy had been ruined by him, that the mother was pregnant, and that he was going to send her money, do not constitute the general and notorious recognition of the child necessary, under the statute, to entitle it to inherit from the father. McCorkendale v. McCorkendale (Iowa, 1900), 82 N. W. Rep. 754. In Maine no illegitimate child can inherit the estate of his father as heir, unless the written acknowledgment required by the statute has been properly executed. Hunt, 37 Me. 333. When an illegitimate child claims the right to inherit from his father under a statute giving such children that right when they have been recognized by the father as his children, and such recognition has been "general or notorious," though declarations of the putative father are competent to show such recognition, such evidence must be carefully scrutinized. Watson v. Richardson (Iowa, Hunt v. 1899), 80 N. W. Rep. 407. Evidence showing that a putative father recognized an illegitimate child as his own in the home of its foster parents during the first year of its life, and occasionally thereafter, is not sufficient to establish such "general and notorious" recognition by the father as will entitle the child to inherit from him. Watson v. Richardson, supra. Under a statute providing that every illegitimate child shall be considered as an heir to the person who shall, in writing signed in the presence of competent witnesses, have acknowledged himself to be the father of such child, the acknowledgment need not be made by the parent for the express purpose of admitting such child to heirship, but a collateral acknowledgment is sufficient. In re Rohrer (Wash. 1900), 60 Pac. Rep. 122. The right of an illegitimate child to inherit from its father is given by statute in North Dakota. But it is held that under this section he may inherit where the father has acknowledged him as his child by an instrument in writing, properly witnessed, and then only from his father directly and as an illegitimate child. It is also held, however, under the same section, that if the legal relation of parent and child has been established by an adoption under section 2806, providing for the adoption of illegitimate children, he is clothed with the full right of inheritance of a legitimate child. Eddie v. Eddie, 8 N. Dak. 37. See also as construing a similar statute, Lind v. Burke, 56 Neb. 785. HUMORS OF THE LAW. "Just for exercise," as he told Judge Sidener, John Sippel kicked Oscar Borgel, a negro, whom he saw asleep in a doorway on Valentine street. The victim came into court with a cut beneath his eye and with 1. ABATEMENT AND REVIVAL-Foreclosure-Personal Representative.-Code Civ. Proc. § 385, provides that an action does not abate by the death of a party if the cause of action survives. Held, that the fact that defendant in an action to foreclose a mortgage died more than a year after the commencement of the action, and before the service of summons on her, did not prevent the court from acquiring jurisdiction of her personal representative, since the cause of action did not abate, and the court had implied power to order a new summons to bring in the new party.UNION SAV. BANK V. BARRETT, Cal., 64 Pac. Rep. 1971. 2. ACTION-Legal or Equitable-Jury Trial.-Where plaintiffs alleged ownership and possession of land, and that defendant claimed title thereto under forged deeds, and prayed cancellation of such deeds, and that defendant be restrained from claiming thereunder, such equitable action cannot be changed into a legal action by defendant flling a cross bill in the nature of ejectment, so as to entitle defendant to a jury trial.-ANGUS V. CRAVEN, Cal., 64 Pac. Rep. 1091. 3. ADMINISTRATOR DE BONIS NON Recovery of Assets Wasted by Administrator.-An administrator de bonis non cannot sue to recover notes belonging to the estate which the administrator turned over to his wife as her share of the estate, the right to recover assets wasted by the administrator being in the dis tributees.-KARN'S ADMR. V. SEATON, Ky., 62 S. W. Rep. 736. 4. ADMIRALTY - Maritime Liens - Supplies and Repairs Furnished to Owner-Implied Agreement for Lien. Under the rule that where repairs are ordered in a foreign port by the owner, there must be some affirmative evidence to show that the credit of the ship was pledged as security for payment, to entitle the repairer to a lien, it is not essential that such evidence should show an agreement for a lien in express words, but facts and circumstances which justify the inference that there was a common understanding that the ship would be bound to establish an implied agreement for a lien, and are sufficient,—THE NEW. which deserves careful consideration. In a fewer number of states this is made possible by statute. It is a sad commentary on modern civilization that illegitimacy is more common to day than ever before, especially in the larger cities. It is therefore not unlikely that the question of legitimacy and legitimation will arise more frequently in the future than they have in the past. In the first place we notice that the statutes relat ing to the recognition and adoption of illegitimate children are to be liberally construed, except as to proof of paternity required. In re Jessup, 81 Cal. 408, 21 Pac. Rep. 976. In this case petitioner was shown to be the illegitimate son of the testator J. Many witnesses testified that J had taken charge of him from his birth, named him after a favorite uncle, provided him with the best nurses, sent him to school and college, dressed him expensively, often spoke of him and introduced him to his friends as his son, often declared his intention to leave him ali bis prop erty, and always manifested much affection for him. On the other hand petitioner was kept in the family of a colored woman, whose mother had nursed him, and went by her name. J was never married, or had what could be called a home, he living much of the time with a mistress; and it appeared that he did not have petitioner assume his (J's) name, because he feared interference from the mother's family. A number of his business and social acquaintances tes tified that they never heard him speak of having a son, but it appeared that he was a reticent man. Held that the evidence justitied the finding that J adopted him under the statute "by publicly acknowl edging the child as his own, receiving it as such into his family, and otherwise treating it as if it were a legitimate child." The status of a bastard with reference to its legitimation by the acts of the father are determinable by the laws of the latter's domicile, and not by the laws of the domicile of the child and mother. Blythe v. Ayres, 96 Cal. 532, 31 Pac. Rep. 915, affirmed 102 Cal. 254, 36 Pac. Rep. 822. In this case plaintiff's putative father was at all times dom iciled in California, her mother at all times domiciled in England, and plaintiff was born in England, and resided there continuously till her father's death. The court held that as the father was domiciled in California, both at the time of her birth, and at the time he performed acts alleged to have resulted in her legitimation, and as California laws authorize the legitimation of bastards by the doing of certain acts, plaintiff was at all times possessed of capacity for legitimation under the statute. See also Lingen v. Lingen, 45 Ala. 410, where it was held that, under a statute regulating the legitimation of bastards, a child of parents never married, legitimated by the laws of a foreign country, cannot inherit real estate in Alabama, and the fact that the child was begotten in Alabama did not alter the case; also the case of Williams v. Kimball, 35 Ala. 49, 16 South. Rep. 283, 48 Am. St. Rep. 238, where it was held that legitimation in Georgia by statute does not make lawful heirs to real estate in Florida of those who were born out of lawful marriage. Where the father of illegitimate children maintains their mother, and provides for the children, and afterwards takes the mother and children into his family, addresses the latter as his 619, 28 N. W. Rep. 199. Verbal declarations of the father of a bastard that the latter shall be supported out of his estates after his death do not give the bas tard a right of action against his father's administrator. Dunican v. Pope, 47 Ga. 445. To empower an illegitimate child to inherit from his father, the recognition provided for by the Revison § 2442, need not be by a formal avowal, but by letters. Crane v. Crane, 31 Iowa, 296. The case of Brown v. Belmarde, 3 Kan. 41, conflicts with the decision in the principal case on the validity of acts of recognition before the passage of an enabling statute. In that case it was held that the act of 1859, declaring tha illegitimate children should inherit from their father if recognized as his children in the manner pointed out by the act, cannot apply to a recognition made before the passage of the act in the form afterwards prescribed by it. The court uses this language in explaining its position: "It is said that there was sufficient evidence to warrant the jury in finding that the father did in the manner required by the statute, recognize the child as his own. Whether there was or was not such testimony is wholly immaterial. No recognition prior to the death of Lavonture, however general or notorious, nay, although it were in writ ing, could legitimate the child if born out of lawful wedlock, or impart to it a heritable quality. At the time the recognition must have taken place there was no law in force giving to that act such an effect. To give it any legal effect whatever there must have been some law in existence prescribing what that effect should be. The act of 1859 cannot reach back and attach to an action, which at the time of its per formance was entirely indifferent, such grave, legal Consequences." A peculiar state of facts is disclosed in the case of Ash v. Way, 2 Gratt. (Va.) 203. A bastard married and died, leaving a legitimate child, and the parents of the bastard afterwards married. The father of the bastard, before the father's marriage in the lifetime of the bastard, recognized her as his child, and also after his marriage, which was after the death of the bastard. Held, that the child of the bastard might inherit through his mother from ber father. Where the illegitimate child has been legitimized in accordance with the terms of the stat ute, such child inherits "as if legitimate;" and, in case of the death of such child leaving children, such children of the illegitimate inherit from their grandfather such portion as their mother would have inherited from his estate. Brewer v. Hamor, 83 Me. 251. The well known exception to the rule excluding hearsay testimony in cases of pedigree is an importaut phase of this subject and one often passed upon by the courts, but is, notwithstanding that fact, not susceptible of exact limitation, each case resting upon its own peculiar facts. A few general rules set the outside boundaries beyond which the courts may not go, but it to be observed that the tendency, in America at least, is to let down the bars in every instance consistent with safety and fairness. The general rule with its recognized limitations is well stated in Jones on Evidence, § 316: "Declarations of deceased persons may be received when such declarations refer to the age, relationship, birth, marriage, death or legitimacy of persons legally related by |