In re the Goods, Chattels & Credits of Murray

44 A.D. 640, 60 N.Y.S. 676

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1899
• Status: Published

Opinion

Ingraham, J.:

One Mary Dunne* a widow, whose maiden name was stated to be Mary Murray, died in the city of New" Yoz*lc on June 10,1880, leaving certain pez*sonal pz*operfcy consisting of deposits in savings banks. Her estate was administez*ed by the public admiuisfci*ator, aud no next of kin appealing to claim her estate, the balance, after deducting the expenses of administration, was deposited in the office of the comptroller? of the city of New York. On September 15, 1898, eighteen yeai’s after the death of the deceased, a petition was presented to the Surzx>gate’s Court asking that this sum be paid to the petitioners as the next of kin of the deceased. Notice of this petition seems to have been given only to th.é authorities in the city of New York. No notice by publication or otherwise was given to the next of kin of the said Mazy Dunne. The proceeding was, therefor*©, substantially ex parte, being only defended by the corporation counsel of the city of New Yoz’k. The evidence of z*elatiorjship of the petitioner's consisted solely of their own testimony, with the exception of certain declarations made by the deceased during her lifetime, and theyecords of a ship arriving in the city of New York .in 1849 in which the deceased had stated she arrived in this country. The matter was referred to a referee before whom the testimony was taken, and he z*eported that he was not satisfied that the petifcionez*s were the next of kin of the deceased, and upon that report the surrogate denied the application. Assuming the testimony given by the petitioners to be true, the case presents sozne curious incidents. Upon the ship Ashburto.n, wlzich arrived in" New York onv, June 30,1849, there were passengers — a Miss Murray, age thirty, ‘female, from Ireland; Richard White, age seven, male, from Ireland; Joseph White, age nineteen, male, from Iz-eland; Mazy Dunne, age twenty-three, feznale, Iz*elanti; Eliza Dunne, age four, female, Ireland, and Catherine Murray, female, Ireland. This ship made regular trips between Great Britain and this co.untiy for several years. It was also pi’oved that the deceased was always known in this countzy by the name of Mary Dunne, and she stated that she arrived here in 1849 upon the ship Ashburton, and that she was a widow, and that her maiden name was Mur*ray. It would follow fz'om this with z’easonable certainty, that she was the Mary Dunne on tlie passenger list of the sjiip as having arrived on June 30,18491 One of the passengers who claimed to be a sister of the deceased, testified that her sister, married ip Ireland but does not mention her husband’s name, while another petitioner, who claims to he a niece of the deceased, testified that lier aunt’s husband's name was George Kearns. This would tend to show that the person who was the relative of the petitioner was not the Mary Dunne whose estate is sought to be distributed in this proceeding. On the other hand, there was evidence as to the declarations of the deceased respecting the name of her parents and the place of her birth, which would tend to corroborate the statement of the petitioners that the deceased was the relative of the petitioners and that they were her next of kin. Upon this condition of the record we do not think that we would be justified in reversing the order of the surrogate and directing the payment of this money to the petitioners. The order appealed from is, therefore, affirmed, with leave, however, to the petitioners to renew the application upon further proof and notice of the application to be given to the next of kin of Mary Dunne or Mary Murray, by publication or otherwise, as the surrogate should direct, with costs of this appeal. Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.