Carroll v. Carroll — 16 Abb. Pr. 239

Majority

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CARROLL against CARROLL.

Supreme Court; Second Department, Second District, General Term,

December, 1874.

Headnote

Surrogate’s Decree. — Probate. — Will. — Evidence.—Death.—Admeasurement of Dower.

The decree of the surrogate admitting a will of real property to probate with the proofs and proceedings thereon, are competent and sufficient evidence of the death of the testator, in an action for ad-measurement of dower, the parties to which were all parties to the proceeding before the surrogate.^[1]

Margaret Carroll brought this action in May, 1873, in this court, for admeasurement of dower, claimed by her as the widow of John Carroll.

Elizabeth Carroll, a defendant, claimed that she was John Carroll’s wife at the time of his death, and that several infants, also defendants, were their children. To the said Elizabeth and her children, John Carroll

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had devised his real estate, by a will proved before the surrogate of Kings county, February 13th, 1873.

Evidence of the probate of this will was the only evidence of John Carroll’s death adduced in this action.

Issues of fact were applied for by the plaintiff, and settled. The jury found that the plaintiff was married to John Carroll in England ; that they had issue born of such marriage; that John Carroll is dead ; that he was seized in his lifetime, and during the coverture of the plaintiff as his wife, of the real estate described in the complaint; and that the value of the several parcels thereof was seventy-five thousand dollars.

Mr. Justice Baiiítaed found that judgment should be given for the plaintiff, and that a sale should be had. A reference was ordered to ascertain the rights of other parties in the property in question.

The defendants excepted to the finding of the court; and to the report of the referee, and now appeal from the judgment for the plaintiff founded thereon.

Philip 8. Croolce, for the defendants, appellants.—

The death of John Carroll was to be proved by the plaintiff. John Carroll having been proved to be alive October 22, 1872, the presumption of law is, that he remained alive in May, 1872 (O’Gara v. Eisenlohr, 38 N. Y., 296 ). No evidence was given of his death, except hearsay, which is not allowable (Fosgate v. Herkimer, &c., 12 Barb., 352 ). The probate proceedings were not evidence of the death, they merely establishing the due execution of the paper, and not requiring proof of the death of the testator, as on application for letters of administration must be furnished of the intestate’s (2 Rev. Stat., 74, § 26 ; Farley v. McConnell, 52 N. Y., 630 ; Belden v. Meeker, 47 Id., 307). The surrogate’s decree does not adjudge John Carroll dead, nor purport to do so (2 Phill. on Ev., 93; 2 Greenl.

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on Ev., § § 278a, 355; 1 Id., § 550, note ; Moons v. De Bernales, 1 Russ., 301 ; Thompson v. Donaldson, 3 Esp., 63; Doe v. Calvert, 2 Campb., 389.)

Morris & Pearsall, for the plaintiffs, respondent,—

Cited Monro v. Merchant, 26 Barb., 384 ; 2 Greenl. on § 339 ; French v. French, 1 Dick., 268 ; Succession of Hamblin, 3 Bobinson (La.), 130; Newman v. Jenkins, 10 Pick., 515 ; Belden v. Meeker, 2 Lans., 470 ; Russell v. Schuyler, 22 Wend., 280 .

By the Court.^[1] —

—The plaintiff brought this action for an admeasurement of ¿lower, which she claimed as widow of John Carroll. The only point discussed on the appeal, is the sufficiency of proof of the death of John Carroll.

On previous proceedings before the surrogate of Kings, the will of John Carroll had been admitted to probate. The plaintiff, at the trial of this action, offered the proof and proceedings in the surrogate’s court, to establish Carroll’s death.

The parties to this action were all before the surrogate in that matter.

W e hold, that the death of Carroll was thereby presumptively established (Greenl. on Ev., vol. 2, p. 325 ; Belden v. Meeker, 2 Lans., 470 ; affirmed in 47 N. Y., 307 ; the same rule is laid down in 26 Barb., 384 , Munro v. Merchant). Although the exception in that case is, that the will and letters were receivable as ancient records establishing death.

All the parties to this action have acted throughout on the presumption of John Carroll’s death, and the defendants in possession hold as his devisees ; in their interest the will was proven before the surrogate, and no reason existed why the presumption of death thus

* Present, Babhabd, P. J., Tapper and Talcott, JJ.

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raised in their behalf, should not be held conclusive in the absence of any counter proof.

The defendants are all in possession as deviseesunder John Carroll’s will; the adult defendants have answered admitting his death; the infant defendants have put in the usual answer by guardian ad litem. If the court should hold John Carroll living, the devisees have no estate, but John Carroll dead, they become seized under his will. The proof of death is quite sufficient to uphold the judgment, which should be affirmed.