168 Misc. 716 | N.Y. Sur. Ct. | 1938
The exceptions to the referee’s report are overruled and the report is confirmed upon the opinion of Mr. J. F. Connor, the referee. Submit decree on notice settling the account accordingly.
Jeremiah F. Connor, Referee. In this accounting proceeding the issue is whether Robert E. Thomas, referred to herein as the respondent, is the child of Putman Bradlee Strong and Mary Augusta Strong. Mary Augusta Strong was at one time well known in this country and internationally as an actress, and is frequently referred to herein under her stage name Mae Yohe. Mary Urania Strong, the testatrix, died July 27, 1921. Under her will a part of her estate valued at approximately $160,000 was placed in trust, with the income payable to her son, Putnam Bradlee Strong, during his lifetime, with the remainder payable to his lawful issue, or in default of such issue, to the next of kin of the testatrix. If Robert E. Thomas is the son of Putnam Bradlee Strong, the remainder of the trust passes to him; if not, to the next of kin of Mary U. Strong, represented by Cadwalader, Wickersham & Taft, William Anderson Kirk and the special guardian. Before this accounting was filed, Robert E. Thomas commenced an action in the Supreme Court of New York county naming Putnam Bradlee Strong, “ Mae Yohe ” and the Central Hanover Bank and Trust Company as defendants. In such action he sought a judgment declaring him to be the lawful son of Mr. Strong and Mae Yohe. The complaint, in referring to his claimed parents, alleges: “ Fifth. That the said defendants have to divers persons denied the paternity and maternity respectively of the plaintiff. Sixth. That the said defendants are the only persons living who have the best and complete knowledge relating to plaintiff’s birth and are now both of an advanced age of approximately sixty-four years.” Because this action was pending, Robert E. Thomas was made a party in this accounting. He was named in the citation, which was duly served, and appeared by his attorneys, Dwyer & Redfield. Objections were filed by the next of kin of Mary U. Strong alleging that Thomas was not the son of Mr. Strong and not a proper party to the proceeding. A motion by Thomas to dismiss the objections upon the ground that the trust had not terminated and the objections were premature, was denied by the surrogate. (Matter of Strong, N. Y. L. J. Nov. 10, 1936, p. 1614.) The matter was then referred to determine the status of respondent Thomas. At the start of the proceedings before me Thomas agreed to try out the issue in this accounting in Surrogate’s Court instead of in the Supreme Court action.
Thomas claims that he was born October 1, 1908, and that his mother was Mary Augusta Strong, now Mary Yohe Smuts (Mae Yohe). The respondent was adopted by E. R. Thomas and Rosa M. Thomas, his wife, by an order in the County Court of Multnomah
Mae Yohe was first married to Lord Hope of England. He divorced her in 1902, naming Putnam Bradlee Strong as the corespondent. Immediately upon receiving word that the divorce had become final, Strong and Mae Yohe wére married in South America. This marriage took place in October, 1902. They traveled together, eventually returning to New York city where they separated in the fall of 1905. This is established by the testimony of Strong, and by the allegations of Yohe in the proceedings instituted by her in Clackamas county, Ore., in the year 1910 to secure a divorce. After the separation Strong testified that he left New York and went to the Orient by way of Vancouver. He remained in the Orient and in Europe for five years, returning to the United States in the year 1910. Mae Yohe apparently returned to the stage. Strong never saw his wife again except for one occasion when she was in Yokohama, Japan, during the year 1909. She did not tell him at that time that she had had a child. Strong testified that he first heard of the claim of the respondent after the death of his sister, Mary Strong Shattuck, in 1935, and that he obtained this information through newspaper articles. In the divorce proceeding between Mary Augusta Strong, plaintiff, and Putnam Bradlee Strong, defendant, in a complaint verified March 5, 1910 (more than a year after respondent Thomas was born),
In the summer of 1908 Mae Yohe was appearing in vaudeville in Portland, Ore., and residing at the Hotel Perkins. The Thomases, who later adopted the respondent, had a drug store in the same building with this hotel. Before moving to Portland she had been on a vaudeville tour through British Columbia. She was known and recognized in Portland as the “ well-known actress.” After living at the Perkins Hotel for a time she moved to a private house on Northrop street where she engaged a household staff and set up housekeeping. She represented herself as Mrs. James Fellows. This is established by the testimony of Dr. Lamb, and by a statement in her power of attorney in the adoption proceeding, which, before filing, was partly obliterated. James Fellows lived at Vancouver but spent his week-ends with Mae Yohe at Portland, Ore. Whether he paid the expenses of the house on Northrop street does not appear, but it does appear from the testimony of Dr. Lamb that the bills for medical services were sent to and paid by Mr. Fellows. It is admitted that from and after her residence at the house on Northrop street she led people to believe that she was to have a baby. She told her attending physician that she was pregnant and made the same statement to respondent’s foster mother and to others. The appearance of her body was such as to lead one to believe that she may have been pregnant. To promote the belief she purchased “ baby things.” It is definitely established, however, by the testimony of Dr. Lamb and by every understandable circumstance connected with the case that she was not pregnant; that she never gave birth to a child in Portland, Ore.; that Thomas was brought to the house as an infant, and held out as her child for some ulterior motive not disclosed in the testimony. It may have been that she was attempting to deceive Fellows. It may have been that she and Fellows were attempting to deceive some
My decision that Mae Yohe is not the mother does not mean that Robert E. Thomas is an illegitimate child. It leaves him with his parentage unknown and presumed to have been born in lawful wedlock. In deciding the case I reject the evidence of the witness Evans that he reminded Putnam Bradlee Strong that Strong had a child somewhere, and that Strong made no reply. The prejudice of Evans against the Strong family and the Shattuck family was plainly evident. His testimony was unreliable, and in the particular above mentioned I disbelieve it entirely. I also reject thAtestimony of Louise Glover, taken by deposition, wherein, in answer to the interrogatory “ What did she state about the child being born to her,” she answered, “ She said Bradlee Strong was the father.” There was no reason why Mae Yohe, if the statement was true, should select this woman and disclose the name of the father when she concealed the information from others, and concealed it in the adoption and the divorce proceedings. This witness, quite evidently, was prompted by over-zealousness to help respondent. My conclusion that Mae Yohe is not the mother of the respondent would be the same if I were to disregard the testimony of Putnam Bradlee Strong, disregard her sworn statements in the divorce action against him, and disregard her statement in the adoption proceedings to the effect that the father of the child was dead.
In considering the testimony of Dr. Lamb I have kept in mind section 352 of the Civil Practice Act, preventing physicians and nurses from disclosing professional information. There is a similar statute in the State of Oregon. In both States the prohibition only applies to information which was necessary to enable the physician to act in his professional capacity, and information
I make the following findings of fact and conclusions of law:
Findings of Fact.
1. Robert E. Thomas is not the son of Mary Augusta Strong.
2. Robert E. Thomas is not the son of Putnam Bradlee Strong.
Conclusion of Law.
1. Robert E. Thomas is not the child of Putnam Bradlee Strong and Mary Augusta Strong, and has no interest in the trust fund created for the use of Putnam Bradlee Strong under the last will and testament of Mary U. Strong, deceased.