
    THIRD DEPARTMENT—GENERAL TERM.
    Filed February 7, 1889.
    IN THE MATTER OF THE APPLICATION FOR REVOCATION OF PROBATE OF WILL OF JOHN D. TURNBULL.
    Relationship—Evidence op.
    Appeal from decree of surrogate, denying application.
    The only question is one of fact, involving the relationship between the petitioner and the testator
    
      Stedman, Thompson & Andrews, for app’lt; Lewis Gass, for resp’t.
   Learned, P. J.

There was no error in excluding the opinion of Foster, as to the resemblance between petitioner and John D. Turnbull, Sr.

The question is simply one of fact, whether the petitioner' was a daughter of John D. Turnbull, Sr., by blood, or only by adoption.

The language of Turnbull in calling the petitioner his daughter is consistent with either theory, although, perhaps, when unexplained, it would be taken as evidence of a blood relationship.

But we have the testimony of several witnesses that Turnbull and his wife had been living without children, and that at a certain time they brought to their house a child some two or three years old, who, from that time, lived with them as their daughter.

There is also the testimony of several witnesses that both Turnbull and his wife stated that they had adopted a child, and that the petitioner was such child.

In contradiction to this, it appears that, in some instances, Turnbull, when rallied by his associates because he was childless, had said that the petitioner ■was his own child This joking conversation indicates the belief of his associates that he was not the real father of any child: And his assertion that the petitioner was his child was the retort (not very unnatural) against the imputation thus made. But it is much more probable that Turnbull’s statement in reply to such joking was untrue, than it is that he would ever have said_(as he-certainly did) that the petitioner was adopted, when she was, in fact, his own child, and one to whom he was evidently attached.

It seems to us hardly necessary to go over the testimony in any detail. The-conviction produced on our minds is that the decision of the surrogate was-correct.

The order is, therefore, affirmed, with costs.

Ingalls, J., concurs.  