
    In the Matter of the Judicial Settlement of the Account of Robert Seabury, as Executor, etc., of Maryette Matthews, Deceased; Everitt R. Pine and Others, Appellants; Robert Seabury, Executor, etc., Hiram Smith and Others, Respondents.
    
      Legitimacy, presumed — decla/rations of deceased relatives as to pedigree — statements of neighbors inadmissible.
    
    The law presumes a person to he legitimate, and the burden is upon those who assert the contrary to prove the fact by clear and irrefragable proof.
    Declarations are admissible in regard to matters of pedigree, where they come from deceased persons connected by blood or marriage with the family of the person whose pedigree is under investigation.
    It is not admissible to prove by statements of the neighbors of a person that she was illegitimate.
    Appeal by Everitt R. Pine and others, next of kin of Maryette Matthews, deceased, from so much of a decree of the Surrogate’s Court of the county of Queens, made by the county judge acting as surrogate, dated May 25, 1895, as directs the executor to divide $7,184.94 of the estate into fourteen equal parts, instead of eleven equal parts, and pay one of such parts to Hiram Smith, one to Ira Smith and one to Thomas Smith; also, from the award to them of ninety dollars costs.
    This proceeding was instituted by a petition filed by Robert Seabury, as executor of Maryette Matthews, deceased, praying for a judicial settlement of his account as such executor. Upon the hearing it appeared that certain legacies bequeathed by the will of said testator had lapsed, and that as to those the deceased died intestate. The order appealed from adjudged that the respondents Smith were lawful next of kin of the deceased, and were as such' entitled to share in that portion of the estate as to which' she died intestate.
    
      Horace Secor, Jr., for the appellants.
    
      Jesse IK Johnson, for the respondents Hiram, ‘ Ira and Thomas Smith.
    
      John Lyon, for the executor, respondent.
   Willard Bartlett, J.:

The next of kin who have appealed in this matter desire to exclude the respondents Hiram, Ira and Thomas Smith from any share in the estate of Maryette Matthews, on the ground that their mother was .illegitimate. The petition of the executor, by which the proceeding was commenced, alleged that Hiram Smith, Ira Smith and Thomas Smith, all residing in the town of Hempstead, Queens county, 1ST. Y., were the children of Harriet Smith, a deceased half-sister of the testatrix. This allegation was not controverted in the objections filed in behalf of the appellants; that is to say, they did not dispute the fact that the respondents Smith were the children of a half-sister of Maryette Matthews; but they did deny that the said Hiram, Ira and Thomas Smith were “ in any way legally related to said decedent, or entitled to any share of her estate as next of kin.”

At the beginning of the hearing before the acting surrogate, he ruled that the burden of establishing this objection was upon the appellants “ and not upon the executor, nor upon Hiram, Ira and Thomas Smith,” to which ruling the counsel for the appellants took an exception.

As I understand the record, this was merely equivalent to holding that there was a presumption of legitimacy which would prevail in the absence of evidence to oppose it, and in that view of the law the acting surrogate was correct. That the relation of parent and child existed between Harriet Smith, a half-sister of Maryette Matthews,

and each of the respondents Smith, was not questioned. Such relation was presumed to he lawful. “ That a person born in a civilized nation,” says Mr. Wharton, “ is legitimate, is a presumption of law, to be binding until rebutted.” (2 Whart. on Ev. § 1298.) “ The law presumes morality and not immorality; marriage and. not concubinage; legitimacy and not bastardy,” said Andrews, J., in Hynes v. McDermott (91 N. Y. 451, 459); and in the old Court of Appeals, Judge Davies, in delivering the prevailing opinion in the well-known case of Caujolle v. Ferrié (23 N. Y. 90, 108) used this language, not only in reference to the presumption but the cogency of the evidence needed to overcome it: “I have been unable to find any authority in this State, on a question of legitimacy, which requires the heir and acknowledged and conceded child to prove an act of marriage as a requisite to maintain his legitimacy. The presumption and the charity of the law are in his favor; and those who wish to bastardize him must make out the fact by clear and irrefragable proof.”

The evidence oifered by the appellants to establish the alleged illegitimacy of the mother of the respondents Smith consisted of testimony as to declarations in respect to the birth and parentage of Harriet Smith, made by persons now deceased. This proof was received under the rule which makes such declarations admissible in regard to matters of pedigree, where they emanate from deceased persons' connected, by blood or marriage with the family of the person whose pedigree is under investigation. (1 Whart. on Ev. §§ 208, 216; Eisenlord v. Clum, 126 N. Y. 552, 565.) Three of the four witnesses called to prove declarations of this kind were objecting parties in the present proceeding, and were directly interested in the result. The testimony of the other witness (John H. Raynor), as set out in the record, is confused and contradictory. The declarations appear to-have been made between eighteen and thirty-five years ago. On the other hand, there was testimony from Mr. Seabury, the executor, indicating that Maryette Matthews, the testatrix, in her lifetime recognized the respondents Smith as persons who were lawfully related to her. Upon all the evidence I think the acting surrogate was quite right in holding that the presumption of Harriet Smith’s legitimacy had not been overcome.

The only other question presented by this appeal arises upon an exception to the refusal of the acting surrogate to receive testimony under a formal offer “ to prove by the neighbors that Harriet Smith was illegitimate,” which offer was accompanied by a statement from the learned counsel for the objectors that he was not prepared to say that such testimony was admissible. As I understand the offer, his, doubts were well founded, and there was no error in the ruling.

The decree, so far as appealed from, should be affirmed, with costs to the respondents Smith.

All concurred.

Decree affirmed, with costs to the respondents Smith.  