Carroll v. Carroll

9 N.Y. Sup. Ct. 609

Opinion

Tappen, J.:

The plaintiff brought this action for an admeasurement of dower, 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 proofs 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. Held, that the death of Carroll was thereby presumptively established.

* The same rule is laid down in 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 exists why the presumption of death, thus raised in their behalf, should not be held conclusive, in the absence of any counter-proof. The defendants are all in possession as devisees under 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 with costs.

Present — Tappen and Talcott, JJ.

Judgment and order, denying new trial, affirmed with costs.

Greenleaf on Evidence, vol. 3, p, 835; Belden v. Meeker, 3 Lans., 470; affirmed id 47 N. Y., 307. '

26 Barb., 384,