3 Bradf. 249 | N.Y. Sur. Ct. | 1855
In the month of March last, I directed a commission to issue in this case “ for the purpose of instituting the proper inquiries to ascertain the relationship of Feme with the decedent.” As the evidence then stood, if it had been apparent that no further information could be procured, I would have been compelled to come to some conclusion as to the claim of the applicant, upon the presumptions of law arising out of the facts as then indicated. The testimony however was peculiar in being drawn entirely from documents and letters, and from witnesses acquainted with the decedent only during her residence in this city; and it was highly probable, to say the least, that on resorting to the theatre of the transactions in France, the questions of the legiti
1. The first point made is, that by this new legislation the policy of the State has been changed, and no longer leads to the exclusion of illegitimates from sharing in the estate of the mother, in default of lawful issue. My ansxver is, that this may very well be, so far as relates to the distribution of the estate, without affecting the right to administration, xvhich in default of lawful kin, belongs by law to creditors, or the public administrator. In the case of Emma Hughes, an illegitimate, the State of Mexv York by an act of the legislature, granted all its interest in the decedent’s estate to her brothers and sisters; and their propinquity being a matter of fact, uncontroverted, the laxv went on to direct the Surrogate to grant letters of administration to the brothers and sisters,
2. If Ferrié be the illegitimate son of Mde. Du Lux, it is insisted that the act of the legislature has given him the whole estate to the exclusion of her next of kin. The proposition is about tantamount to a declaration, that after the decease of an intestate, the legislature can change the statute of distributions so as to have a retrospective effect, and can give away the estate in a new direction. Indeed the learned counsel pushed
3. The general doctrine is that a law must be construed prospectively and not retrospectively. The impropriety of making laws reaching back to the past is so manifest, that a statute will be presumed to relate only to the future, unless there are very express words giving it a retrospective application. Besides, the act in question, whilst declaring that illegitimates, in default of lawful issue, “ may inherit real and personal property from their mother, as if legitimate,” follows up the provision directly by saying, “ but nothing in this act shall affect any right or title in or to any real or personal property already vested in the lawful heirs of any person heretofore deceased.” It is said, however, that the saving clause does not reach this case, because personal property
4. The lawful next of kin of the decedent not being affected by this act, it is apparent that if Ferrié claims as an illegitimate, and if there are any next of kin of Madame Du Lux, the act, as to them, is a pure nullity. They can appear, claim their rights, and, on becoming residents, administer to the estate, and ultimately take, on distribution. This right to distribution and succession, is a right the State has not undertaken to depi'ive them of, and could not have deprived them of, even by express special legislation, without violating the rights of private property.
5. That the next of kin, in case of Ferrié’s illegitimacy, are entitled, is therefore clear, and although from being nonresident aliens, they are disqualified from administering, that disqualification may be removed by a change of residence to New York, and in default of their administering, the Public Administrator in this county is entitled to letters before creditors and strangers. Their alienage, however it affects the mere question of administration, affords no reason for disregarding their claims as to the property. In that respect their standing here is not a matter of comity, but of strict right, and there is no tribunal in any civilized country, I hope, where their rights would not be respected. I must therefore remain of the same opinion, as expressed on the former hearing of this case, and direct a commission to be issued as already determined. That commission must issue, however, in the ordinary form, and should be under the supervision of a person appointed by this Court. The commission rogatovre, invoking the aid of foreign tribunals, in the form suggested by the counsel for the French claimants, presents no advantages, and is exposed to the objection that it removes the investigation from the control of this Court, and from the operation of
The objection made to the right of the French consul to be heard in this case seems to me not well founded. Our treaty with France secures to the consuls of both nations the right to apply “ to the authorities of their respective governments, whether federal or local, judicial or executive”....“ for the purpose of protecting, informally, the rights and interests of their countrymen, especially in cases of absence.” This treaty is a formal recognition of a practice established by national comity. FT either the treaty nor the usage gives the the consul any status in the court as a party. He appears only “ informally," having a right to be heard not as a party, but as the national agent of parties supposed to be interested.