
    Walter S. Washington, as Ancillary Administrator of the Goods, Chattels and Credits of Margaret Hunter, Deceased, Respondent, v. Bank for Savings in the City of New York, Appellant.
    
      Sawings bank account — “ Margaret Hunter in trust for son Thomas ” —proof that Margaret Hunter (since deceased) had■ no children —entries in the book of the age of the child—proof of declarations—presumption from. age.
    
    In an action by the personal representative of one Margaret Hunter against a savings bank to recover the amount of deposits standing in the name of “Margaret Hunter in trust for son Thomas,” and “Margaret Hunter in trust for son John,” it appeared that Margaret Hunter died in February, 1895, when she was between seventy-five and eighty years old; that she had lived in the house in which she died for nearly twenty-eight years; that the account “ Margaret Hunter in trust for son Thomas” was opened January 3, 1882, and that she then declared, as appeared by a statement in the account book that the son Thomas was nine years of age; that the account “Margaret Hunter in trust for son John” was opened August 22, 1883; that she then decía.ed, as appeared by a statement in the account book, that John was eleven years of age; therefore, if she had had sons named Thomas and John at the time the accounts were opened, and their ages were correctly stated in the account books, they must have been born within five or six months of each other, about 1872 or 1873, and at a time when she lived in the house in which she died, and when she was upwards of fifty years of age. No witnesses were produced who had ever seen any children belonging to the decedent, and no evidence was offered to the effect that she had ever had children, and proof was given of declarations made by the deceased to her friends and neighbors to the effect that she never had had any children.
    
      
      Held, that there was sufficient evidence to justify the jury in finding that Margaret Hunter never had sons hy the names of Thomas and John, anJ that when she opened the accounts in question she did so for her own benefit;
    That proof of the declarations made by the decedent to her friends and neighbors to the effect that she never had had any children was admissible:
    The presumption that a woman upwards of fifty years of age may not have children, although not conclusive, is very strong, and has many times been acted upon by the courts.
    Appeal by the defendant, the Bank for Savings in the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of December, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 31st day of December, 1900, denying the defendant’s motion for a new trial made upon the minutes.
    
      W. IF". Thompson, for the appellant.
    
      Louis Marshall, for the respondent.
   McLaughlin, J.:

In February, 1895, Margaret Hunter, whose maiden name was Margaret Brown, died intestate. For many years prior to and at the time of her death she resided in the same house in Newark, in the State of New Jersey. After her death there were found among her papers several bank books representing deposits in various savings banks, most of them in the city of New York. These books represented accounts kept in the names of various persons,— “ Margaret Brown ; Margaret Hunter; Margaret Hunter in trust for son Thomas; Margaret Hunter in trust for son John ; Margaret Hunter in trust for Thomas Hunter; Margaret Brown for niece Margaret Hunter; Margaret Brown for Margaret Hunter; Margaret Brown in trust for John Smith; Margaret Brown in trust for Margaret Smith.” There were three books representing accounts in the defendant bank; one in the name of Margaret Brown, one in the name of Margaret Hunter in trust for son Thomas, and a third in the name of Margaret Hunter in trust for son John. After her death the plaintiff was appointed ancillary administrator, and as such he demanded from the defendant the moneys represented by the three books issued by it. The defendant denied his right to the moneys represented by such books, and thereupon this action was brought to recover the same.

Subsequent to the commencement of the action the defendant paid to the plaintiff the amount called for by the book issued in the name of Margaret Brown, but refused to pay the amounts called for by the other two books; and the subject-matter of this controversy relates to the plaintiff’s right to recover such sums. The accounts represented by these two books were opened by Margaret Hunter personally. She deposited with the defendant all of the moneys represented or called for by them. The first account, “ Margaret Hunter in trust for son Thomas,” was opened and the book issued on the 3d of January, 1882. According to a statement contained in the book, she then declared that the son Thomas was nine years of age. The other one, “'Margaret Hunter in trust for son John,” was opened and the book issued to her on the 22d of August, 1883, and she then declared, according to a statement contained in the book, that John was eleven years of age.

If at the time Margaret Hunter deposited with the defendant the moneys represented by the two books in question she had no sons John or Thomas, then there can be no doubt but that the plaintiff is entitled, as her representative, to recover from the defendant the amounts called for by them, inasmuch as in that event the trusts attempted to be created were exclusively for her own benefit. (Cunningham v. Davenport, 147 N. Y. 43; Haux v. Dry Dock Savings Inst., 2 App. Div. 165 ; S. C., 154 N. Y. 736 ; Matter of Mueller, 15 App. Div. 67.) If, however, she did not have sons at that time, but subsequently had sons by those names,- and such sons were living at the time of her death, a valid trust was created for the benefit of each, and the plaintiff is not entitled to recover. The question really presented, therefore, was whether she did, at the time the deposits were made and at the time of her death, have a son Thomas and a son John ; and this was the theory upon which the action was tried and submitted to the jury.

The evidence adduced upon the trial tended to establish that she had lived in the same house in Newark for nearly or quite twenty-eight years, and that at the time of her death she was between seventy-five and eighty years old. Therefore, if she had sons Thomas and John, and their ages were correctly stated in the books issued by the defendant, and this was the only evidence on that subject, they must have been born within five or six months of each other about 1872 or 1873, and at a time when she lived in the house where she died. No witnesses were produced who had ever seen these children, or either of them, or, in fact, any children belonging to her, and no evidence whatever was offered to the effect that she had ever had children. The fact that none of' the deceased's friends or neighbors were produced who had any knowledge that she had children, and that she must have been upwards of fifty-years of age when they were born, raises a strong presumption that she never had children, and that these names were used by her for a purpose known only to herself. It is true, there is no conclusive presumption of law that a woman upwards of fifty years of age may not have children ; but, nevertheless, there is a strong probability, which almost ripens into a legal conclusion, that she will not, and which has many times been acted upon by the courts. Thus, the English courts have frequently acted upon that probability and made distributions of money. (Lyddon v. Ellison, 19 Beav. 565 ; Fraser v. Fraser, Jacob, 586 n.; Matter of Widdow's Trusts, L. R. [11 Eq.] 408; Matter of Millner's Estate, L. R. [14 Eq.] 245.) And in Edwards v. Tuck (23 Beav. 271) distribution of an estate was made upon the presumption that a woman of fifty-eight would not have children, and the right to distribute depended upon the fact that she would not.

But in addition to the probability that a woman of the age of Margaret Hunter at the time the sons Thomas and John are alleged to have been born would not have children, we have not only the evidence of her friends and neighbors that they had never seen any children of hers, and had no knowledge that she had ever had any, but also the further fact that she had frequently declared to such friends and neighbors that she had never had any children. It is said that her declarations thus made are inadmissible; that this raises the principal question upon which it is urged the judgment should be reversed.

These declarations, it is said, were hearsay evidence. But hearsay evidence is admissible for the purpose of establishing pedigree. (1 Greenl. Ev. §§ 103,104; Chase’s Steph. Dig. Ev. art. 31; People v. Fulton Fire Ins. Co., 25 Wend. 209; Eisenlord v. Clum, 126 N. Y. 552.) It has never been questioned in this State, so far as we are aware, since the decision of Jackson ex dem. Ross v. Cooley (8 Johns. 128), but that in case of pedigree, hearsay evidence, declarations of persons who from their situation were likely to know, is admissible when the person making the declaration is dead. (Eisenlord v. Clum, supra) And we do not understand that this rule is seriously questioned by the appellant. It insists, however, that while hearsay evidence is admissible for the purpose of establishing birth of issue, a different rule should apply in establishing that a person died without issue. We think the mile is the same. Suppose that the contest here were between nieces or nephews, would not the declarations of the deceased be admissible ? Manifestly so. No good reason can be suggested why they should not be. If such evidence is admissible to establish issue, then the converse of the proposition must be true. There is no difference between the two. The rule is just as applicable to the one case as to the other.

If we are correct in this conclusion, then it follows that the judgment appealed from must be affirmed, because there was sufficient evidence to justify the jury in finding that Margaret Hunter never had sons by the names of Thomas or John, and that when she opened the accounts in question with the defendant bank, such accounts were opened for her own benefit, and, therefore, she having died intestate, the same belong to the plaintiff as her representative.

The judgment and order appealed from should be affirmed, with costs.

Van Brunt, P. J., O’Brien, Ingraham and Hatch, JJ., concurred.

Judgment and order affirmed, with costs.  