30 N.Y. St. Rep. 212 | N.Y. Sur. Ct. | 1890
A single question is presented by the exception of the executor to the report of the referee. By the will of the testatrix, the sum of $20,000 was bequeathed for life to her mother, the remainder to be distributed equally between the children of her brothers. One of these brothers, named David Mann, had two children. Upon the first hearing before the referee the father testified that the existence and whereabout of these two children were unknown to him; that he had not heard from them for many years. The matter was sent back to the referee for the purpose of obtaining proof which would support the presumption of the death of. these two children, and authorize a distribution of the estate accordingly. Pending the reference, one of
I am of opinion, however, that the presumption cannot arise in this case. My conclusion is founded upon the following cases, and the foregoing considerations, as well as those which follow. The presumption does not arise where it is improbable there would have been any communication with home. 1 Amer. & Eng. Cyclop. Law, 41, note 1, and cases cited. And see Re Tobin, 15 N. Y. St. Rep. 749. From the facts stated above as to the character and habits of the alleged decedent, and the manner of her disappearance, it is extremely improbable that she would have been desirous to communicate either with Mrs. Parfitt or with her relatives. On the streets of a large city, without money, without friends, with no moral training and no education, and with the vicious propensities which are hereafter described, it requires no suggestion on my part to imagine the fate that overtook her. It appears in the evidence that her father left her mother for another woman, taking his children with him. Thereafter he abandoned his children to the tender mercies of the poor-house. The mother, since her husband left her, disregarding her marriage vows, has been living in adulterous intercourse with another