| N.Y. App. Div. | Nov 17, 1916
This is an appeal from a decree of the Surrogate’s Court in New York county denying a motion by Arthur Leslie for an order “ re-opening, setting aside or vacating the proceedings heretofore had relative to the probate of the said last will and testament of said deceased [Mrs. Frank Leslie, also known as Baroness de Bazus], and directing that a citation or supplemental citation be issued to the petitioner Arthur Leslie, as one of the heirs at law and next of kin of the above named deceased so that he may attend the probate proceedings of the said alleged will and be heard in connection therewith, and so that he may file objections to the probate thereof.”
The will in question was admitted to probate and letters testamentary issued to the executors therein named on or about December 1, 1914, after citations had been issued to and served upon a large number of persons, not, however, including the present petitioner. He claims that he was entitled to notice of the application for probate and to an opportunity to contest it, and that, having been omitted from the proceeding, he is now entitled, as matter of right, to be afforded an opportunity to contest the will. To sustain this claim he must show that he is a person interested in the estate of the decedent who would be entitled to some share thereof if it were determined that she died intestate. He does not claim that he was kith or kin of decedent, but bases his claim to a right to share in
It is conceded on all hands that the decedent, who appears to have been born in 1836 or 1837, was the daughter of Charles Follin, who was born in 1779 and died in 1859. The petitioner alleges that the decedent was illegitimate and was the daughter of a negro slave. He seems to have selected this particular mother for her because it would not wholly answer his purpose to claim merely that she was illegitimate, for in that case she might have relatives upon her mother’s side who could inherit from her. Hence, the attribution to her of a slave mother who would have no heritable blood. Of the assertion that the decedent’s mother was a negro slave we can find no competent proof in the papers before us. There is an affidavit
On the other hand, the evidence is overwhelming that she was the daughter of Charles Follín and one Susan Danforth, with whom he lived for years and whom he recognized and held forth as his wife. It is true that no record of their marriage is produced or is apparently extant. That, however, is unimportant in view of the mass of evidence to the effect that she was recognized as his wife, and that Mrs. Leslie was recognized as his and her daughter, not only by Charles Follín himself, but by his mother and the other members of his family. This, together with the strong presumption of legitimacy, which is well recognized in the law (Caujolle v. Ferrié, 23 N.Y. 90" court="NY" date_filed="1861-03-05" href="https://app.midpage.ai/document/caujolle-v--ferrie-3590857?utm_source=webapp" opinion_id="3590857">23 N. Y. 90; Mayer v. Davis, 119 A.D. 96" court="N.Y. App. Div." date_filed="1907-04-19" href="https://app.midpage.ai/document/mayer-v-davis-5202604?utm_source=webapp" opinion_id="5202604">119 App. Div. 96; Matter of Matthews, 153 N.Y. 443" court="NY" date_filed="1897-10-05" href="https://app.midpage.ai/document/in-re-the-estate-of-matthews-3615818?utm_source=webapp" opinion_id="3615818">153 N. Y. 443), is convincing proof that Mrs. Leslie was the legitimate daughter of Charles Follín and his second wife, formerly Susan Danforth. If she was the daughter of
Without undertaking to analyze at length the very voluminous record we may content ourselves with saying that upon that record we are unable to find any credible support for the petitioner’s allegation as to the parentage of Mrs. Leslie, and very conclusive reasons for arriving at a different result. The petitioner does not, however, as we understand him, insist that the papers now before us, and which were before the surrogate, are sufficient to permit of his intervention in the probate proceeding. He seems to admit their weakness, and asks us to take evidence upon the question involved (See Code Civ. Proc. § 2763), and what we are really called upon to determine is whether or not we should adopt this course. We think not. As to our power to do so we have no doubt, but it is a power to be exercised sparingly and with discretion. It is not open to any one, merely-by asserting a nebulous claim to an estate, to ask that a solemn decree admitting a will to probate be vacated, -and a long and expensive contest be entered upon. He must first show with some degree of probability that his claim is well founded and that, if afforded an opportunity, he will be able to substantiate it. Here it is where petitioner fails.
The learned surrogate apparently placed his decision (as indicated by his opinion, 92 Misc. 663" court="N.Y. Sur. Ct." date_filed="1915-12-15" href="https://app.midpage.ai/document/in-re-the-estate-of-leslie-6147341?utm_source=webapp" opinion_id="6147341">92 Misc. Rep. 663) not only upon the very evident weakness of the petitioner’s case, but also upon what he viewed as the invalidity of the statute upon which the petitioner relies. We prefer to place our decision upon the first of these grounds, finding no reason to question the power of the Legislature to enact the statute in question.
The order appealed from should be affirmed, with ten dollars costs and disbursements to each respondent appearing and filing a brief in this court.
Clarke, P. J., Laughlin, Dowling and Page, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements to each respondent appearing and filing a brief herein.