Carroll v. Carroll , 16 Abb. Pr. 239 ( 1874 )

By the Court.^*—

Tappew, J.

—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 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.

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