In re Matthews' Estate

Decision Date05 October 1897
PartiesIn re MATTHEWS' ESTATE.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from supreme court, appellate division, Second department.

Judicial settlement of the accounts of Robert Seabury, executor of the will of Maryette Matthews, deceased. From a judgment of the appellate division (37 N. Y. Supp. 309) affirming a decree of the surrogate directing distribution and payment of a certain part of the estate to Hiram Smith, Everett R. Pine and others appeal. Affirmed.

The decree was on a final settlement of the accounts of the executor of the last will and testament of Maryette Matthews, deceased. The appeal to the appellate division was from only so much of the decree as decided that the respondents, who are the children of Harriet Smith, were entitled to share in the distribution of the estate. The proceeding was initiated by a petition filed by the executor, in which it was alleged that the testatrix's next of kin were the eight children of her brother, Raynor Pine, the three children of Harriet Smith, a deceased half-sister of the testatrix, and the three children or grandchildren of Eliza J. Smart, a deceased sister. None of the children or grandchildren of Eliza Smart appeared before the surrogate, or in any way contested the proceeding. The entire contest was between the respondents and the children of Raynor Pine, who are the appellants. On the return of the citation issued upon the executor's petition, the appellants filed an answer, in which they denied, upon information and belief, that the respondents were the next of kin of the decedent, or in any way legally related to her, or entitled to any share of her estate. At the request of the appellants, the surrogate's court found that Harriet Smith and the testatrix were children of the same mother by different fathers, and that their mother, the common grandmother of the parties, married the grandfather of the appellants after the birth of the respondents' mother, who died 20 years since, and would have been 80 or 90 years of age if living. On the hearing, the surrogate held that the burden of establishing the allegations of the answer was upon the appellants, and upon neither the executor nor the respondents. This ruling was excepted to by the appellants.

Horace Secor, Jr., for appellants.

Jesse Johnson, for respondents.

MARTIN, J. (after stating the facts).

On the trial the surrogate's court held that as the decedent and Harriet Smith were children of the same mother, and there was no evidence showing that she had not been married previously to the birth of the latter, she was presumed to be her legitimate child, and the burden of establishing her illegitimacy was upon the appellants. If the learned acting surrogate was correct in his conclusion as to the presumption of legitimacy, we think he was justified in holding that the evidence introduced by the respondents was insufficent to overcome it. The question was, at least, one of fact; and having been determined upon conflicting evidence, and affirmed by the appellate division, it presents no question of law which can be reviewed by this court. Therefore the only legal question which confronts us is whether Harriet Smith was presumed to be legitimate, in the absence of proof of the marriage of her mother previous to her birth.

We are of the opinion that, it having been established that the respondents' mother was a half-sister of the decedent, the law presumed that she was legitimate, and the burden of establishing her illegitimacy rested upon the appellants. Starr v. Peck, 1 Hill, 270, 272;Caujolle v. Ferrie, 26 Barb. 177, 185, 23 N. Y. 90, 95, 107, 108;Badger v. Badger, 88 N. Y. 546; Wilcox v. Wilcox, 46 Hun, 32, 40; Hynes v. McDermott, 91 N. Y. 451, 459; 1 Bish. Mar. & Div. § 447; 2 Whart. Ev. § 1298. In the Starr Case, Judge Cowen, in discussing the question of legitimacy, said: ‘To this may be added the presumption that the parties would not indulge in a connection which was immoral, not to say criminal. * * * We are to presume against a notorious act of immorality almost as strongly as we would against the commission of a legal crime. * * * Honesty, not fraud, is to be presumed. Thus, the law presumes not only against immorality, but even the venial offense of negligence or breach of private duty.’ In Caujolle v. Ferrie, Clerke, J., who delivered the prevailing opinion in the supreme court, said: ‘The common law also presumes marriage; that is, it presumes every man legitimate until the contrary be shown, as it presumes every man innocent, and that...

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28 cases
  • Wendy G-M. v. Erin G-M.
    • United States
    • New York Supreme Court
    • 7 Mayo 2014
    ...legitimate); Matter of Findlay, 253 N.Y. 1, 7, 170 N.E. 471 (1930); Hynes v. McDermott, 91 N.Y. 451, 458 (1883); Matter of Matthews, 153 N.Y. 443, 447, 47 N.E. 901 (1897); Murtagh v. Murtagh, 217 A.D.2d 538, 539, 629 N.Y.S.2d 78, (2nd Dept.1995); T.P. v. B.P., 41 Misc.3d 1232(A), 2013 WL 62......
  • In re Ascertaining and Declaring Rights of Heirs and Persons Who have a Claim or Interest in Estate of Tormey's
    • United States
    • Idaho Supreme Court
    • 19 Mayo 1927
    ...McWillie, 9 Tex. Civ. App. 543, 30 S.W. 56; Shuman v. Shuman, 83 Wis. 250, 53 N.W. 455; Godfrey v. Rowland, 16 Hawaii 377; In re Matthews, 153 N.Y. 443, 47 N.E. 901.) In case of conflicting presumptions that in favor of legitimacy will prevail. (Vreeland v. Vreeland, 78 N.J. Eq. 256, 79 A. ......
  • R.R.K. v. S.G.P.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 14 Mayo 1987
    ...is not limited to cases where marriage is claimed or proved. It applies to every case where the question is at issue. Re Matthews Estate, 153 N.Y. 443, 47 N.E. 901 (1897). The presumption that a child born in wedlock is legitimate is one of great antiquity. Several courts have noted that it......
  • Houghton v. Houghton
    • United States
    • Nebraska Supreme Court
    • 12 Noviembre 1965
    ...legitimacy has been withering and shrinking in the face of scientific advances. Hynes v. McDermott, 91 N.Y. 451, 459; Matter of Matthews' Estate, 153 N.Y. 443, 47 N.E. 901; Matter of Findlay, supra, 253 N.Y. 1, 170 N.E. 471. Presumptions are looked upon "* * * as the bats of the law, flitti......
  • Request a trial to view additional results

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