132 Misc. 259 | N.Y. Sur. Ct. | 1928
This is an application for confirmation of the report of a referee designated to take testimony and report upon the objections filed to the account of the public administrator. These objections were filed by Mary A. Griffith and James H. Mersereau, and were based upon the claim of said objectants that they were the only surviving next of kin of decedent. A special guardian in this proceeding represented unknown next of kin. In his account the public administrator set forth that the next of kin were not known. After an exhaustive trial the referee found that the objectants were first cousins of decedent on his father’s side and were decedent’s only next of kin on that side entitled to share in the estate. He found, on the other hand, that there was no proof that-decedent was not survived by relatives on his mother’s side of the
The record discloses a fairly exhaustive investigation on the part of these claimants designed to unearth the fact and identity of any next of kin of decedent upon his mother’s • side. It embraced (1) advertisements in the New York Times and the World; (2) examination of old directories; (3) inquiries of the Census Bureau, Washington; (4) inquiries at two savings banks; (5) searches in genealogical records in the Public Library. It appears also that the special guardian made inquiries in the neighborhood where decedent’s mother lived. These searches and inquiries disclosed no trace of the existence at any time of any next of kin on decedent’s mother’s side. Now comes the question; with such a record what is the weight to be given the proofs offered and what are the presumptions to be considered. In the first place, I am of the opinion that the census records produced may be relied upon without any fear of error. Considered in connection with the City Directories, the death certificate of decedent’s mother add the oral testimony, they show that Abigail Russell, was a widow with one child in 1830. From all the proofs offered it is reasonably certain that this child was Marie Louise Russell, in after years decedent’s mother. Moreover, we may safely conclude from the record in the City Directory that she remained a widow at least until 1850. In 1830, according to the census record, she was over forty years and under fifty years of age, so that in 1850, when her name no longer appeared in the directory, she was between sixty and seventy years of age.
In the face of the above facts and the fair deductions that may be drawn therefrom it is difficult to understand how the presumption may be asserted that there were at the time of decedent’s death in 1925 next of kin on his mother’s side since it has been shown: (a) that his grandmother in 1830 had one child, viz., Marie Louise Russell; (b) that said grandmother was a widow; and (c) that she remained a widow at least until she was between sixty and seventy years of age. Surely there is no presumption that she married again and bore children. Moreover if the presumption that Widow Russell left issue surviving when she died, did lie, it would not include numbers of heirs or kin nor any particular degree of heirship or kinship. (Stennett v. Stennett, 174 Iowa, 431; 156 N. W. 406.) Again, sub