
    In the Matter of the Judicial Settlement of the Accounts of Robert Seabury, as Executor, etc., of Maryette Matthews, Deceased.
    
      (Supreme Court, Appellate Division, Second Department,
    
    
      Filed Feb’ry 4, 1896.)
    
    1. Evidence—Presumptions—Legitimacy.
    The burden of proving legitimacy is on the party asserting it.
    2. Same.
    Testimony as to declarations in respect to the birth and parentage of a party, made by persons now deceased, are admissible in regard to matters of pedigree, where they emanate from deceased persons connected by blood or marriage with the family of the persons whose pedigree is under investigation.
    3. Same.
    The refusal of the surrogate to receive testimony under a formal offer “ to prove by the neighbors that the claimant was illegitimate,” is not error.
    Appeal from a decree in so far as it directs the executor to divide a certain portion of the estate into fourteen equal parts, instead of eleven equal parts, and to pay one of such parts to Hiram Smith, one to Ira Smith, and one to Thomas Smith, and also from the award to them of $90 costs.
    Horace Secor, Jr., for app’lts; Jesse Johnson, for resp’ts Smith and others; John Lyon, for resp’t executor.
   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, N. Y., where the children of Harriet Smith, a deceased half-sister of 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 were the children of a half-sisterof 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 was not questioned. Such relation was presumed to be 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. Ev. (Ind. ed.) § 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. Ferrie, 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 offered by the appellents to establish the alleged illegitimacy of the mother of the respondents 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. Ev. (Ind. ed.) §§ 208, 216; Eisenlord v. Clum, 126 N. Y. 552, 565 ; 38 St. Rep. 446. Three of the four witnesses called to prove declarations of this kind were objecting parties in the present prqceeding, and 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 life time, recognized the respondents herein 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 thei ruling.

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