129 N.Y.S. 961 | N.Y. App. Div. | 1911
Timothy Dwight died in 1857, leaving a last will and testament, and a codicil thereto, which were probated in 1858. By his will he directed that his residuary estate be divided into six parts, one of which he gave to his widow and one to his son Timothy. The remaining four parts were given in trust,. the income of three of them to be applied respectively to the use of his three daughters, Caroline, Joanna and Grace, and the income of the fourth part to the use of his son Stanley. Upon the death of each daughter the principal of the trust fund so held for her benefit he disposed of as follows: “Upon the decease of my said daughters respectively, to pay over, transfer and deliver the principal of the part aforesaid, so holden in trust for the use of the daughter so respectively deceased, to the child or children of such deceased daughter respectively; and in default •of such child or children, then to my other children named in this will and to their-legal representatives in, equal propor
If the testimony sought to be taken would be inadmissible at the trial, then the motion was properly denied. A commission will not. issue to obtain evidence which cannot be used at the trial. (Schuler v. Woodward, 137 App. Div. 576.) I think such testimony would be inadmissible for the following reasons: •
First. There is no issue raised by the pleadings as to the
Second. J do not think the plaintiff is in a position to raise such issue.or question in .any way the legitimacy of Caroline and Joanna. He brings the action as substituted • trustee of his father’s will and it is his duty as such trustee to carry out what his father intended. This he is legally bound to do, if such intent can be ascertained. It is not part of his duty to prove that Caroline and Joanna were illegitimates. His father stated them to be his daughters and this is sufficient for the plaintiff. He need go no further because every legal presumption is in favor of their legitimacy. “The existence of such a presumption,” says Judge Martin in Matter of Matthews (153 N. Y. 443), “ is in consonance with every correct sense of propriety and justice. Any other rule would be fraught, with danger and produce immeasurable uncertainty. Property rights would be rendered doubtful, and the fair fame of their ancestors might be destroyed- by the cupidity of remote heirs and next of kin. There might be others who would be willing to dishonor their ancestors and bastardize their relatives to increase their patrimony.” The testator, of course, had a right to dispose of his property as he saw fit. He could treat his legitimate and illegitimate children alike. Here it is perfectly obvious that he intended to treat Caroline and Joanna in precisely the' same manner as he did 'his daughter Grace. He made, no distinction whatever between them. Each was to receive an equal part of his estate for life, and upon her death the, principal was to go to her children if she. had any, 'The testator, so far as he could' by words used in his will, excluded the possibility of any question being raised as to the legitimacy
In Gelston v. Shields (16 Hun, 143; affd., 78 N. Y. 275) it was stated that if a man clearly indicates in his will whom he means by his “wife,” it is unnecessary to consider whether she was' so in fact, and that “prima facie. the word ‘ children’ means legitimate children. But when it appears from the will itself, by express, designation, of by necessary implication, that the intended objects of the testator’s bounty are illegitimate children, they will tajee under the description of ‘children.’ ‘Necessary implication,’ said Lord Eldon in Wilkinson v. Adams (I V. & B. 422-466), ‘means not natural necessity, but so strong a probability of intention, that an intention contrary to that which is imputed to the testator cannot be supposed.”’
If the foregoing views be correct as to the testator’s intent, then it seems to me the question presented is not difficult of solution. The usual and ordinary meaning of the words ‘ ‘ legal representatives ” is executors or administrators. (Griswold v. Sawyer, 125 N. Y. 411; Sulz v. Mutual Reserve Fund Life Assn., 145 id. 563; Geoffroy v. Gilbert, 5 App. Div. 98; affd., 154 N. Y. 741.) But the testator did not use these words in that meaning. This, both of the parties seemed to concede — the plaintiff necessarily so, because he does- not allege in his complaint whether the son Timothy died testate or intestate, and he has not made his executor or administrator a party. The testator used these words, as it seems to me, in the same sense they are used in the Statute of Distributions (Decedent Estate Law [Consol. Laws, chap. 13; Laws of 1909, chap. 18], § 98, as amd. by Laws of 1909, chap. 240)—lineal descendants. The testator was providing for the final distribution of a fund which he had given in trust, and in the absence of words indicating an intent to the contrary, it must be presumed that he
Third. The plaintiff, as we have already seen, made himself a defendant in his individual capacity. He made default in pleading, as he did upon the- motion which resulted in the order appealed from. Notwithstanding that fact he appeals individually. His appeal is -ineffectual because he is not in a position to - question the validity of the order. (Code Civ. Proc. § 1294; Matter of Jones Lumber Co. v. Fulton, 123 App. Div. 386.)
The order appealed from, therefore, should be affirmed, with ten dollars costs and disbursements. • '. ;
Order affirmed, with ten’dollars costs and disbursements.