112 N.Y.S. 212 | N.Y. Sur. Ct. | 1908
Decedent died October 31, 1907. On December 2, 1907, the propounded paper was filed for probate. It is dated October 16, 1907, and directs “ my executors hereinafter named to pay my just debts and funeral expenses,” but names no executors. It provides: “ I give, devise and bequeath all my estate, both real and personal, to my dearly beloved wife, Elizabeth M. Gamer, to have undisputed possession of the same. To my lifetime friend, Owen Monks, I wish him to select whatever clothes he may wish, and in case the dog named Cinders is disposed of (sic) to be given back to him.”
Elizabeth M. Garner applied November 11, 1907, for and obtained letters of administration on said estate, alleging that she was the widow and that she had made diligent search and inquiry for a will and had not found any or any information that decedent left any. Thereafter, with this propounded paper, she caused to be filed her petition for its probate; in which she alleged that she had discovered it November 25, 1907. In said petition she again alleged that she was the widow of the decedent, and also that his only heirs at law and next of kin were two infant sons and two infant daughters and two adopted daughters and one adopted son. A special guardian was appointed for all of said infants, who appeared for them but filed no objections. The only contestants are Jennie V. McCormack and John,
The preponderance of evidence taken upon this question discloses that on the 12th day of September, 1895, in a certain action for divorce then pending in the Superior 'Court of this, county, wherein one Harry Leake was plaintiff and proponent defendant, a decree was made by Hon. P. Henry Dugro, J., proponent being in default, whereby it was adjudged that the marriage of said parties was dissolved, and proponent was prohibited from marrying again during the lifetime of plaintiff. Ho evidence was adduced before me that the plaintiff has died; on. the contrary, there was some slight evidence to the effect that he was still alive.
Decedent was a harnessmaker and had a shop on Broadway, between Fifty-seventh and Fifty-eighth streets. Proponent called Owen Monks, the “ lifetime friend ” of the propounded paper, who satisfactorily qualified as to competency as a witness, by executing a general release of his legacies. Matter of Fitzgerald, 33 Misc. Rep. 325. He testified that calling at decedent’s shop in the autumn of 1896 he there met decedent and proponent, and the former introduced to him the latter as his wife, and as the two men thereupon proceeded to the nearby Reisenweber’s, at decedent’s suggestion, for the purpose, as Monks says, of being “ blown off,” Monks asked decedent where he got married, and decedent said, “ Over in Jersey.” * * * “ He mentioned something in regard to religion — that he had to go to' Hew Jersey in regard to religion.”
No evidence was adduced as to the precise dates when decedent’s and proponent’s children were born, and nothing disclosed as to the adoption of the 'alleged “ adopted ” children. They are all infants, the former class all under fourteen years of age. In the summer of 1902 proponent and decedent were at Berkeley, N. J., and she was running a hotel there, known as the Berkeley Arms. They held themselves out and were gen-
Proponent was not called. She offered no proof as to actual contract, in words in presentí, of any so-called “ common-law marriage, nor did she attempt to prove a ceremonial marriage. She did, however, cause to be proved the laws of New Jersey to the effect that common-law marriages were recognized in that State in the year 1896. The strongest presumptions of the law are in favor of the legitimacy of the four infant children. In Matter of Matthews, 153 N. Y. 443, this doctrine is sustained,, and the cases reviewed. Starr v. Peck, 1 Hill, 270, 272; Caujolle v. Ferrie, 26 Barb. 177, 185; S. €., 23 N. Y. 90, 95, 107,. 108; Badger v. Badger, 88 id. 546; Wilcox v. Wilcox, 46 Hun, 32, 40; Hynes v. McDermott, 91 N. Y. 451, 459; 1 Bish. Mar. & Div., § 447 ; 2 Whart. Ev., § 1298. And Martin, J., says r “ The existence of such a presumption 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
It would seem within the limitations of the facts established
In the light of these authorities I am satisfied that in this
Decreed accordingly.