Fay's Estate, Matter of

• Decision Date: 29 March 1978
• Citation: 44 N.Y.2d 137,375 N.E.2d 735,404 N.Y.S.2d 554
• Parties: , 375 N.E.2d 735 In the Matter of the ESTATE OF John P. FAY, Deceased. Violet J. F. BUCK, Appellant, v. Florence S. W. HUNTER et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 554

404 N.Y.S.2d 554

44 N.Y.2d 137, 375 N.E.2d 735

In the Matter of the ESTATE OF John P. FAY, Deceased.

Violet J. F. BUCK, Appellant, v. Florence S. W. HUNTER et al., Respondents.

Court of Appeals of New York.

March 29, 1978.

William B. Lawless and James G. McGoldrick, New York City, for appellant

Burton T. Ryan, New York City, for Florence S. W. Hunter and others, respondents.

Louis J. Lefkowitz, Atty. Gen. (Irwin M. Strum, Samuel A. Hirshowitz, Allan S. Meyers and Suzanne M. McGrattan, New York City, of counsel), for State of New York, respondent.

OPINION OF THE COURT

JASEN, Judge.

In this accounting proceeding by the Public Administrator of the County of New York, objections were filed by several potential claimants. This appeal involves only objections raised by Violet Josephine Fay Buck, who claims to be a half-sister of decedent by reason of a common father.

The decedent, John P. Fay died intestate on August 19, 1970, in St. Nazaire, France. At his death, the decedent was a citizen of the United States and a domiciliary of the State and County of New York. His gross estate approximates $6,000,000. Born in Edinburgh, Scotland, on April 20, 1892, the decedent's birth certificate, registered in Edinburgh on August 11, 1892, was signed by one John Fay and Elizabeth Hunter Weatherall. Although the certificate provided for inclusion of the location and date of the marriage of the child's parents, this information was left blank. Moreover, the certificate specifically stated that decedent's birth was illegitimate.

On May 1, 1892, prior to the registration of his birth, decedent was baptized in Edinburgh. Unlike his birth certificate, decedent's baptismal certificate was not signed by his parents. It did include in printed form, however, the word "conjugum", symbolic of the lawful marital status of the child's parents. Beyond decedent's birth and baptismal certificates, there exists no documentary evidence concerning his legitimacy. There exists only the remarkable tale of his early life. There is little doubt that at an early age the decedent and each of his parents parted ways. From papers found in the decedent's possession, it appears that sometime between 1898 and 1901 the decedent was enrolled in a boarding school in Ireland. For a number of years prior to his enrollment, decedent lived in a foster home with a woman, whom he addressed as "aunt". By the age of 13, however, the decedent, having signed aboard a sailing vessel, was living entirely on his own. He continued to work as a seaman until 1910, when he decided to reside in the United States. It was in 1918 that decedent, while serving in the United States Army, applied for United States citizenship.

As for his parents, at decedent's birth in 1892, his mother, Elizabeth Hunter Weatherall, who had been widowed in 1888, had three sons: Arthur, William and James. The issue of Arthur Kate Weatherall Spencer and Florence S. Weatherall and of William Laurette Caillol claim to be the sole distributees of the decedent. In 1900, decedent's father, John Fay, married one Hattie Fadley. Appellant Violet Joseph Fay Buck, an issue of this union, claims, as stated before to be a distributee of the decedent by reason of a common father.

After considering these claims, as well as others not relevant to this appeal, the Surrogate sustained the objections of Kate Weatherall Spencer, Florence S. Weatherall and Laurette Caillol, who claimed through the mother's bloodline, and dismissed the objections of appellant Buck who claimed relationship by reason of a common father upon the ground "that decedent was not * * * legitimate", thereby precluding inheritance through his putative father. The Appellate Division unanimously affirmed for the reasons stated by the Surrogate.

The issue in this case is twofold: whether the decedent was illegitimate; and, if so, whether EPTL 4-1.2 (subd. (b)), which precludes inheritance by the paternal kindred of an illegitimate, is violative of equal protection.

There is an established legal presumption that every person is born legitimate. (Hynes v. McDermott, 91 N.Y. 451, 458; Matter of Matthews, 153 N.Y. 443, 447, 47 N.E. 901, 902; Fisch, New York Evidence (2d ed), § 1129; Richardson, Evidence (10th ed), § 59.) Although this presumption operates most commonly in cases in which the issue involved is not the validity of the parents' marriage, but, rather, the paternity of the child, it does come into play in any case in which legitimacy is in issue. (Matter of Matthews, 153 N.Y., at p. 447, 47 N.E. at p. 902, supra.) It has often been described as "one of the strongest and most persuasive (presumptions) known to the law." (Matter of Findlay, 253 N.Y. 1, 7, 170 N.E. 471, 472.) However, the presumption of legitimacy is not conclusive: it may be rebutted where to do otherwise would outrage common sense and reason. (Id., at p. 8, 170 N.E. at p. 473; Anonymous v. Anonymous, 1 A.D.2d 312, 150 N.Y.S.2d 344.)

The basic problem then is one of proof and it depends upon whether or not there is sufficient evidence in the record to sustain the Surrogate's finding "that upon both the oral and documentary evidence presented it must conclude that decedent was illegitimate." In reaching this conclusion, the Surrogate placed greater weight upon the decedent's birth certificate than upon his baptismal certificate. As he noted, no evidence existed to establish that the decedent's parents were present at the baptismal. This fact stands in marked contrast to the registration of the decedent's birth the certificate of which was signed by both parents and indicated that the child was illegitimate. As a result, the Surrogate determined that upon the evidence presented at trial, the presumption of legitimacy was overcome and therefore concluded "that decedent was not a legitimate child." This question of fact, determined adversely to the appellant, was affirmed by the Appellate Division. Consequently, no question of law is presented which can be reviewed by our court. (See Howard v. Murray, 38 N.Y.2d 695, 699, 382 N.Y.S.2d 470, 471, 346 N.E.2d 238, 239.)

With respect to the second issue on this appeal whether EPTL 4-1.2 (subd. (b)), which precludes inheritance by the paternal kindred of an illegitimate, is violative of equal protection appellant argues that this statute discriminates unconstitutionally against decedent's paternal kindred.

EPTL 4-1.2 deals with inheritance by or from illegitimate persons. It provides in pertinent part:

"(a) For the purposes of this article:

"(1) An illegitimate child is the legitimate child of his mother so that he and his issue inherit from his mother and from his maternal kindred.

"(2) An illegitimate child is the legitimate child of his father so that he and his issue inherit from his father if a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity in a proceeding instituted during the pregnancy of the mother or within two years from the birth of the child.

"(b)...