Opinion
May 17, 1956.
Proceeding upon objections to trustees' account, wherein legitimacy of party cited in the proceeding as testatrix' grandson was raised. The Surrogate's Court, Frankenthaler, S., held that testimony as to physical characteristics of various persons upon issue of existence or lack of blood relationship between such persons would not be excluded at time when precise nature of the available proof could not be known, and inquiry would be permitted to be made on the examination, and court would reserve for trial rulings, as to its admissibility.
Order in accordance with opinion.
Gasser Hayes, New York City, for Lewis L. Clarke and United States Trust Company of New York, co-trustees, petitioners.
Myles, Wormser Koch, New York City, for W. R. Diaz-Albertini, respondent.
Silver Bernstein, New York City, for Leander G. Diaz-Albertini, respondent.
Philip J. McCook, New York City, Special Guardian for Susan J. G. Diaz-Albertini and William S. R. Diaz-Albertini, infants, respondents.
Objections to the account of the trustees raise an issue as to the legitimacy of a party cited in this proceeding as a grandson of the testatrix. Prior decisions herein have considered a plea of res judicata, Sur., 141 NY.S.2d 149, affirmed 286 App.Div. 1083, 147 N.Y.S.2d 669, and a plea of laches, 141 N.Y.S.2d 154, affirmed 286 App.Div. 1083, 147 N.Y. S.2d 669. The objectants now move for commissions to take the testimony of two witnesses in England. The parties have requested rulings on this motion that not only will fix the scope of the examination of each witness but, in so far as practicable, will delimit the evidence admissible on the trial and, for the latter purpose, will be more definitive than ordinarily would be required on this type of motion. As an aid to the court in the making of such particular rulings, a stipulation of fauts has been submitted which concedes that one of the persons whose testimony is sought was validly married, that during her marriage she bore two sons, that the younger son whose paternity here is questioned was born on April 9, 1933 at a time when his mother and her husband were occupying the same household, that from the time of the birth of the older son in 1913 until the death of the husband in 1942 the couple at all times maintained one or more places of abode in which both lived except for temporary absences of one or the other, that between May 15, 1932 and August 15, 1932 the common residence maintained by them contained two bed-rooms separated by a bathroom and one of such bed-rooms was the bed-room of the wife and the other was the bed-room of the husband, that the mother, her husband and her two children all maintained a common residence and that, at various-times, particularly from the latter part of July 1932 to August 15, 1932 during the school vacation of the older son, he occupied this residence with his parents.
The motion to take the deposition of the mother is made with the prospect of eliciting testimony, from her that will tend to establish the illegitimacy of her younger child through evidence of her infidelity, nonaccess by her husband during the pertinent period in 1932, prior statements she may have made as to the child's paternity, the impotence of her husband during some period of the marriage, her relations with an alleged paramour, an attempted abortion and facts as to the period of her pregnancy and as to the physical characteristics of herself; her husband, her children, and an alleged paramour.
The movants rely to such an extent upon Matter of Findlay, 253 N.Y. 1, 170 N.E. 471, 472, that the facts and the law of that decision must be considered, fully. The issue in that proceeding was the right of one William Findlay to be the administrator of the estate of John Findlay who had been born Albert Brooks. The decedent's parents Henry Brooks and Ann Aldridge were married in England in 1852. There were three recognized children of the marriage. The decedent Albert Brooks, the second child of the marriage, was bom in 1855. The mother left her husband in 1864 and ran away to America with one James Findlay. Thereafter she had three more children, the second of these, William Findlay, was bom in 1875; The decedent had come to this country in 1874 and for a time had made his home with his mother. He then assumed the name of John Findlay. The decedent's father Henry Brooks never came to this country. John Findlay (formerly Albert Brooks) died in 1926. William Findlay, claiming to be the decedent's legitimate brother, was granted letters of administration. This appointment was attacked but the surrogate held that the presumption of legitimacy required a finding that William Findlay was the legitimate child of his mother and her husband Henry Brooks. The matter came before the Court of Appeals following the unanimous affirmance of the surrogate by the Appellate Division. The facts recited above, together with the further facts that William had continually acknowledged himself to be the son of James Findlay and bad been so acknowledged by the latter would require a conclusion that William could be the legitimate child of Brooks only if Ann Brooks, while living in open adultery with Findlay, had arranged clandestine meetings with her abandoned husband. The absurdity of such a conclusion evoked the comment from Chief Judge Cardozo that "The presumption of legitimacy will not bear so great a strain."
Any attempted comparison of the facts in the Findlay case with the stipulated facts herein is a barren effort. There is an eloping wife living in adultery on a different continent from her abandoned husband contrasted with a wife maintaining a common residence with her husband not only at the time of a child's birth but for years before and years subsequent to such event. There are the further dissimilar facts of a child bearing the name of his mother's paramour, living in that man's household and always recognizing that man as his father, and of a child bearin, the name of his mother's husband and raised in the common marital abode as a child of the marriage.
The Findlay case is pertinent only to the extent of the rule of law therein stated which emphasizes the fact that the presumption of legitimacy is exceedingly strong and is not to be overcome by rumors, suspicions or "through inferences nicely poised" but only when "common sense and reason arc outraged by a holding that it abides."
[3-5] Here the stipulated facts create a strong presumption of legitimacy that, although subject to "the sway of reason", may be rebutted only by convincing proof, Matter of Findlay, supra. The rationale of the cited decision and the authorities referred to warrant the conclusions that proof of either non-access or of facts establishing access to have been most improbable would overcome the presumption of legitimacy as also would proof of the husband's impotency, but evidence of infidelity by a wife living in the conjugal relationship with her husband would not impair the presumption. . The testimony of the mother may not be received to prove the fact of non-access. Matter of Findlay, supra; Chamberlain v. People, 23 N.Y. 85; Commissioner of Public Welfare of City of New York, on Complaint of Vincent v. Kochler, 284 N.Y. 260. 30 N.E.2d 587; Mailer of Adoption of Anonymous Minor Child, 192 Misc. 359, 77 N.Y.S.2d 121. In the Findlay case statements by the mother as to the paternity of the children living with her were held admissible in evidence because such statements were made by her in the course of her care of the household which she maintained with her paramour and in explanation of the existence of that household. The court said that such statements were distinguishable from confessions. There is nothing in the present moving papers to indicate in any wise that present testimony of this mother or prior statements by her would fall within the distinction drawn in the Findlay case between avowals of illegitimacy in the form of confessions and "declarations in the form of verbal acts which characterize and color the family relation". Public policy dictates that, except for the very limited distinction, made in the Findlay case, the testimony of a mother is not competent to bastardize her own child. Matter of Smith's Estate, 136 Misc. 863, 874, 242 N.Y.S, 464, 478, and cases there cited. Testimony of a wife that there was a time during the marriage when her husband was completely impotent is only; a manner of testifying as to non-access in support of an accusation of illegitimacy. So also testimony of a mother as to an attempted abortion would have no relevancy unless she were to be permitted to testify as to a motive that would impair the legitimacy of her child.
Testimony that may be adduced by way of commission as to the physical characteristics of various persons for the purpose of proving either the existence or the lack of a blood relationship between those persons could at best be inconclusive. In Matter of McGcrry's Estate, 75 Misc. 98, 134 N.Y.S. 957, the surrogate considered such proof. He personally inspected the appearance of parties and concluded that, despite the resemblance in the contours and features of the persons, his observation in this class of evidence was too limited to permit him to draw an inference from such inspection or to regard the resemblance as proof. Surrogate Foley took a different view in Matter of Wendel's Estate, 146 Misc. 260, 262 N.Y.S. 41, and wholly rejected evidence as to facial resemblance between an alleged distributee and the decedent. This surrogate emphasized the obvious fact that such testimony was a mere expression of opinion which, although honest, may be largely a matter of fancy. Some indication of the lack of probative force of such opinions is indicated by the stipulated fact that the older child, here moving for the commission, was of the belief that the younger child was his brother of the full blood for a period of twenty years. Irrespective of the weight to be given to such testimony, the court will not exclude it at this point in the proceeding when the precise nature of the available proof cannot be known and the court will permit inquiry to be made on the examination and will reserve for the trial rulings as to its admissibility.
The best evidence of court records and the disposition made of litigation is a properly authenticated record of that litigation and not the present recollection of a party to that action. The terms of any private settlement agreement not contained in the court record could only be in the category of a confession by the mother to be at all relevant here.
The deposition of the sister of the mother is sought in respect of statements made by the mother in the forms of admissions or confessions as well as to other matters which at best could be only hearsay. Under certain items of the proposed examination it is sought to have this witness testify as to statements by the mother which are not pedigree proof and in respect of which the mother herself would not be competent. Certainly this witness is not qualified by training or experience to testify concerning any alleged impotency on the part of her sister's husband. Neither is she qualified to give reliable information as to the duration of her sister's pregnancy. In other respects the comments applicable to the proposed examination of the mother apply equally to the examination of her sister.
There is some ambiguity in the stipulated facts as to the dates in 1932 when the mother and her husband jointly occupied the family residence or were sojourning together. In view of the inability of the parties to agree upon more exact concessions it appears proper that interrogation of the witnesses on this subject be permitted. The stipulated facts as to the common residence maintained by the mother, her husband and her children seem to eliminate from present consideration those cases relied on by the movants to the effect that common sense and decency reject a presumption of normal relationship between a husband and a wife living apart from him in notorious adultery. But, lest the objectants be foreclosed from procuring relevant proof, inquiries along this line will be permitted in the interrogation of the second witness under item 5 of her examination.
Examination of the mother is dented as to items 1 to 0 inclusive, item 11 and item 12. Examination under item 10 will be permitted only as to the dates during which the witness and her husband sojourned together in their own residence or elsewhere during the year 1932, Examination under item 13 will be permitted only as to the duration of her pregnancy. Examination under item 14 is allowed. Examination under item 15 will be permitted only as to the production of any photographs of the individuals mentioned in the preceding item.
Examination of the second witness is permitted as to items 1, 2 and 9. Examination is denied as to items 3, 4, 6, 7 and S. Examination under item 5 is allowed but inquiry will be limited to the years 1931 and 1932. Examination under item 10 will be permitted only as to the production of photographs of the individuals mentioned in item 9.
Submit order on one day's notice.