In re Findlay

• Decision Date: 11 February 1930
• Citation: 170 N.E. 471,253 N.Y. 1
• Parties: In re FINDLAY.
• Court: New York Court of Appeals Court of Appeals

253 N.Y. 1

170 N.E. 471

In re FINDLAY.

Court of Appeals of New York.

Feb. 11, 1930.

In the matter of the revocation of letters of administration of the goods, chattels, and credits of John Findlay, deceased. Petition by Alfred Brooks against William Findlay and another as administrators. From an order of the Appellate Division, Second Department (226 App. Div. 638, 236 N. Y. S. 489), affirming a decree of the Surrogate's Court of Nassau county which dismissed on the merits a petition for the revocation of letters of administration, petitioner appeals.

Reversed and remitted, with directions.

Appeal from Supreme Court, Appellate Division, Second Department.

Christian S. Lorentzen, of New York City, for appellant.

James N. Gehrig, of Mineola, Jeremiah Wood, of Gloversville, and Ward Wilklow, of Middletown, for respondents.

CARDOZO, C. 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, 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 Rooks. 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 hom for a season at Hamilton, Ontario, and then at Medina, N. Y., 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 Amrch, 1906, at the age of seventy-nine. A search of the English records shows that his marriage to Ann Aldridge had never been dissolved.

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 abandoned husband. The Appellate Division unanimously affirmed.

We have said that William had continuously acknowledged himself as the son of Ann Aldridge and James Findlay, and was so acknowledged by them. He did not retract this acknowledgment when testifying here. Placed on the stand as a witness for the petitioner, and asked the blunt question, ‘What was your father's name?’ he answered bluntly ‘James Findlay.’ Cross-examined by his own counsel, he explained in effect that since his earliest infancy he had been brought up in that belief. Upbringing and belief must yield, wee are told, to the presumption of legitimacy. If Ann Brooks, who ran away with James Findlay in 1864, did not come to America till 1875, the year of William's birth, there is a bare possibility that she was visited by her abandoned husband while she was living away from him in adultery, and that Walter and William and Percy, acknowledged by her and the adulterer as the fruit of the illicit union, were conceived at these clandestine meetings, unproven but presumed. Upon this possibility, and no more, the decree in controversy rests. The presumption of legitimacy will not bear so great a strain.

Potent, indeed, the presumption is one of the strongest and most persuasive known to the law (Hynes v. McDermott, 91 N. Y. 451, 459,43 Am. Rep. 677;Matter of Matthews' Estate, 153 N. Y. 443, 47 N. E. 901), and yet subject to the sway of reason. Time was, the books tell us, when its rank was even higher. If a husband, not physically incapable, was within the four seas of England during the period of gestation, the court would not listen to evidence casting doubt on his paternity. The presumption in such circumstances was said to be conclusive. Cross v. Cross, 3 Paige, 139;Van Aernam v. Van Aernam, 1 Barb. Ch. 375; Thayer, Preliminary Treatise on the Law of Evidence, p. 540; 5 Wigmore, Evidence, § 2527; Nicolas on Adulterine Bastardy, pp. 29, 30. The rule of the four seas was exploded by the judgment in Pendrell v. Pendrell, 2 Strange, 925, decided in 1732. It was exploded, as Grose, J., observed in a later case (Rex v. Luffe, 8 East, 193, 208; Nicolas, supra, pp. 164, 172) ‘on account of its absolute nonsense.’ Since then the presumption of legitimacy, like other presumptions, such as those of regularity and innocence, has been subject to be rebutted, though there have been varying statements of the cogency of the evidence sufficient to repel it.

At times the cases seemed to say that any possibility of access, no matter how violently improbable, would leave the presumption active as against neutralizing proof. Rex v. Luffe, supra, per Lord Ellenborough; Head v. Ehad, 1 Sim. & S. 150. A formula so inexorable has yielded with the years to one more natural and supple. There are survivals here and there of the rule of olden days. Cf. Powell v. State ex rel. Fowler, 84 Ohio St. 165, 95 N. E. 660,36 L. R. A. (N. S.) 255;Bunel v. O'Day (C. C.) 125 F. 303, 317;Patterson v. Gaines, 6 How. 550, 589, 12 L. Ed. 553. By and large, none the less, the courts are generally agreed that countervailing evidence may shatter the presumption though the possibility of access is not susceptible of exclusion to the point of utter demonstration. Issue will not be bastardized as the outcome of a choice between nicely balanced probabilities. Head v. Head, supra. They will not be held legitimate by a sacrifice of probabilities in a futile quest for certainty. Some of the books tell us that, to overcome the presumption, the evidence of nonaccess must be ‘clear and convincing’ (Hynes v. McDermott, supra; Hargrave v. Hargrave, 9 Beav. 552; cf. Caujolle v. Ferrié, 23 N.Y. 90, 108, 139); others that it must lead to a conclusion that is ‘strong and irresistible’ (The Aylesford Peerage Case [L. R.] 11 App. Cas. 1, 17); others that it must be proof ‘beyond all reasonable doubt’ (Cross v. Cross, supra; Van Aernam v. Van Aernam, supra; Phillips v. Allen, 2 Allen [Mass.] 453;Sullivan v. Kelly, 3 Allen [Mass.] 148;Stegall v. Stegall, 2 Brock. 256, Fed. Cas. No. 13,351 [Marshall, C. J.]; 33 Harv. L. Rev. 307).

What is meant by these pronouncements, however differently phrased, is this, and nothing more, that the presumption will not fail unless common sense and reason are outraged by a holding that it abides. If husband and wife are living together in the conjugal relation, legitimacy will be presumed, though the wife has harbored an adulterer. Hargrave v. Hargrave, supra; Bury v. Phillpot, 2 Myl. & K. 349. It may even be presumed though the spouses are living apart if there is a fair basis for the belief that at times they may have come together. Whether such a basis exists in any given instance is to be determined, however, in the light of experience and reason. The presumption does not consecrate as truth the extravagantly improbable, which may be one, for ends juridical, with the indubitably false. Cf. Matter of Case, 214 N. Y. 199, 204,108 N. E. 408.

Illustration will be helpful to guide us to a choice. The beginning of the modern tendency can be marked in Goodright v. Saul, 4 T. R. (Durn. & E.) 356 [1791]. The husband and the wife had separated, and a child born later had received a different name, and had been brought up by its mother while living with another man. The court held the...