253 N.Y. 1, In re Findlay

Citation:253 N.Y. 1
Party Name:In the Matter of the Estate of JOHN FINDLAY, Deceased. ALFRED BROOKS, Appellant; WILLIAM FINDLAY et al., as Administrators, Respondents.
Case Date:February 11, 1930
Court:New York Court of Appeals
 
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253 N.Y. 1

In the Matter of the Estate of JOHN FINDLAY, Deceased. ALFRED BROOKS, Appellant; WILLIAM FINDLAY et al., as Administrators, Respondents.

New York Court of Appeal

February 11, 1930

Argued January 7, 1930.

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COUNSEL

Christian S. Lorentzen for appellant. Error was committed either in admitting incompetent hearsay evidence on the question of parentage or, being admitted without or over objection, in considering it inconclusive, and invoking the rule of presumption. ( Horan v. Hastorf, 223 N.Y. 490; Reed v. McCord, 160 N.Y. 330; Hull v. Littauer, 162 N.Y. 569; Flora v. Carbeau, 38 N.Y. 111; Koester v. Rochester Candy Works, 194 N.Y. 92; Matter of Seabury, 1 A.D. 231; 153 N.Y. 443; Banbury Peerage Case, 1 Sim. & Stu. 153; Morris v. Davis, 5 Cl. & Fin. 463; Burnaby v. Bailee, 42 Ch. Div. 282; Schouler's Domestic Relations [5th ed.], § 225; 2 Kent's Com. 211; Matter of Matthews, 153 N.Y. 443; Matter of Madura v. City of New York, 238 N.Y. 214.) No presumption arose in favor of the respondent Findlay claiming through his mother who had left her lawful husband and contracted a bigamous marriage. ( O'Gara v. Eisenlord, 38 N.Y. 296; Minner v. Minner, 238 N.Y. 534; Machini v. Zanoni, 5 Redf. 492; Gall v. Gall, 114 N.Y. 109; Williams v. Williams, 63 Wis. 58, Matter of Richards, 133 Cal. 524; Olmstead v. Olmstead, 190 N.Y. 458; 216 U.S. 386.) The proof of non-access was irrefragable. ( Thyll v. N.Y. Long Branch R. R. Co., 92 A.D. 513.)

James N. Gehrig, Jeremiah Wood and Ward Wilklow for respondents. Appellant having failed to take proper exception to the decision of the Surrogate and the dismissal of the petition, the case is not one which is properly reviewable by the Court of Appeals. (Surr. Ct. Act, § 72; Sugg v. Wandling, 250 N.Y. 517; People v. Davis, 231 N.Y. 60; Wangner v. Grimm, 169 N.Y. 421; Hopkins v. Clark, 158 N.Y. 299; City of Buffalo v. New York, L.

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E. & W. R. R. Co., 152 N.Y. 276; Matter of Sprague, 125 N.Y. 732; Matter of Kellogg, 104 N.Y. 648; Matter of Hood, 104 N.Y. 103; Angevine v. Jackson, 103 N.Y. 470.)Where the legitimacy of a child is attacked, the burden is upon the person attacking the legitimacy of that child to prove that the mother and her husband had not access to each other during the period of conception, prior to the birth of the said child. ( Hynes v. McDermott, 91 N.Y. 451; Caujolle v. Ferrie, 23 N.Y. 90; Mayer v. Davis, 122 A.D. 393; Matter of Barthel, 111 Misc. 727; 192 A.D. 926; Coler v. McTighe, 213 A.D. 831; Young v. Shulenberg, 165 N.Y. 385; Tracy v. Frey, 95 A.D. 579; Reed v. McCord, 160 N.Y. 330; Aalholm v. People, 211 N.Y. 406.) Where the legitimacy of a child is attacked, the law raises a presumption of a valid marriage between the parents of the child. ( Matter of Biersack, 96 Misc. 161; 179 A.D. 916; Price v. Tompkins, 108 Misc. 263; Hutchins v. Kimmell, 31 Mich. 130; Peet v. Peet, 52 Mich. 467; Kopke v. People, 43 Mich. 45; Barber v. Valentine, 125 Mich. 336; Opdyke v. Opdyke, 237 Mich. 417.)

CARDOZO, Ch. J.

Alfred Brooks, a brother of the decedent, John Findlay, formerly Albert Brooks, brings this proceeding to revoke letters of administration granted to William Findlay and another upon the false suggestion as he claims that William was John's brother, and entitled as such to administer the estate.

Henry Brooks and Ann Aldridge were married in England in 1852.They had three children: Arthur, who died unmarried many years ago; Albert, the decedent, who came to America in 1874 at the age of nineteen and changed his name to John Findlay; and Alfred, the petitioner, born in 1859, and still a resident of England.

Ann Brooks (formerly Ann Aldridge), the mother, left her husband and children in 1864, and ran away with James Findlay. She came to America with her paramour,

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though the date of their sailing is not precisely fixed. There is testimony by a surviving brother of Henry Brooks that it was shortly after the elopement. There is a trace of testimony for the respondent that might place it as late as 1875. Ann Brooks, or Ann Findlay as she was then known, had three children after her flight from Henry Brooks. One of these, Walter, now dead, was born in 1865 or at the latest 1867, was reared in the home of the Findlays, and through life was acknowledged as their son. The second, William, to whom letters have been issued, was born in September, 1875, was similarly reared and similarly acknowledged. The third and youngest, Percy, was born in the United States, and reared and acknowledged in the same way.

James and Ann Findlay on their arrival in America made their home for a season at Hamilton, Ontario, and then at Medina, New York, but soon drifted to Detroit, where they resided till they died. Albert Brooks, who had come to the United States in 1874, joined his mother in Detroit and made his home with her for a time, assuming the name of John Findlay. He left Detroit later, and went to Hempstead, Long Island, where he resided at his death. Alfred Brooks, the petitioner, paid a short visit to the United States in 1881 and found his mother and James Findlay living in Detroit with the children of the guilty union, or children so acknowledged. It was there that James died at a date not stated in the record. It was there that the mother died in March, 1900. She had never recrossed the seas except perhaps for a brief visit with James Findlay and the children at a time not clearly stated, but, it seems, about 1891. Meanwhile, during all the years since her elopement in 1864, her abandoned husband, Henry Brooks, had continuously remained in England where he died in March, 1906, at the age of seventy-nine. A search of the English records shows that his marriage to Ann Aldridge had never been dissolved.

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The decedent, John Findlay, formerly Albert Brooks, died a widower, without issue and intestate at Hempstead, Long Island, in 1926. William Findlay, claiming to be a legitimate brother, applied to the Surrogate for letters of administration, and prayed that the respondent Wood be named as joint administrator, though there is no suggestion that Wood was of kin to the decedent. Letters were issued accordingly in January, 1927. About six months later Alfred Brooks, learning of the grant of letters, began this proceeding. He attacked the appointment of William Findlay as made upon a false suggestion of legitimate kinship. He attacked the appointment of the coadministrator, Findlay's nominee, upon the ground of an adverse interest. The Surrogate dismissed the petition on the merits. The evidence in his view was inadequate to overcome the presumption of legitimacy. William Findlay acknowledging himself continuously as the son of Ann Aldridge and James Findlay, and so acknowledged by them, was to be presumed, none the less, to be the son of Ann Aldridge and Henry Brooks, her...

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