STANLEY DWIGHT, as Substituted Trustee under the Last Will and Testament of TIMOTHY DWIGHT, Deceased, Plaintiff,
HARRISON JEFFRAY GIBB and CHARLES ALEXANDER GIBB, Respondents, Impleaded with LILIAN CONSTANCE JEFFRAY and Others, Defendants. STANLEY DWIGHT, Individually, Appellant. (Appeal No. 1.)
APPEAL by Stanley Dwight, individually, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of March, 1911, denying a motion for a commission to take testimony upon written interrogatories.
Chester A. Jayne, for the appellant.
John A. Garver, for the respondents.
Timothy Dwight died in 1857, leaving a last will and testament, and a codicil thereto, which were probated in 1858. By his will he directed that his residuary estate be divided into six parts, one of which he gave to his widow and one to his son Timothy. The remaining four parts were given in trust, the income of three of them to be applied respectively to the use of his three daughters, Caroline, Joanna and Grace, and the income of the fourth part to the use of his son Stanley. Upon the death of each daughter the principal of the trust fund so held for her benefit he disposed of as follows: 'Upon the decease of my said daughters respectively, to pay over, transfer and deliver the principal of the part aforesaid, so holden in trust for the use of the daughter so respectively deceased, to the child or children of such deceased daughter respectively; and in default of such child or children, then to my other children named in this will and to their legal representatives in equal proportions.
' The trust for Stanley terminated when he was twenty-one years of age. The trusts for Caroline and Joanna were terminated by their respective deaths, and the principal of their shares passed to their respective issue. The trust for Grace terminated by her death, which occurred in September, 1909, without issue. Timothy died in 1899, unmarried, and without issue. The plaintiff, as substituted trustee under the will of his father, seeks by this action to account for the trust fund held by him for the benefit of Grace, and for a distribution of the same. The will and codicil are annexed to and made a part of the complaint. The plaintiff in his individual capacity was made a party defendant, but did not answer. Certain other defendants, including the respondents, interposed answers. After issue had been joined the plaintiff moved for a commission to take testimony outside the State, to be used upon the trial, which it was claimed would establish the fact that Caroline and Joanna were not legitimate daughters of the testators. The motion was denied, as appears from the memorandum of the learned justice who heard the same, on the ground that such testimony would be inadmissible at the trial. The plaintiff in his individual capacity appeals, contending that such testimony would be admissible at the trial. This contention is based upon the proposition that the words 'legal representatives' in the clause of the will above quoted mean only legitimate next of kin, and if this be correct then the conclusion necessarily follows that the principal of the trust fund given for the benefit of the daughter Grace should be divided into four parts, one of which should go to the surviving son Stanley; one to the lineal descendants of each of the alleged illegitimate daughters; and one to the legitimate next of kin of the son Timothy, that is, to the son Stanley.
If the testimony sought to be taken would be inadmissible at the trial, then the motion was properly denied. A commission will not issue to obtain evidence which cannot be used at the trial. ( Schuler v. Woodward, 137 A.D. 576.) I think such testimony would be inadmissible for the following reasons:
First. There is no issue raised by the pleadings as to the
legitimacy of the daughters Caroline and Joanna. The will of the testator is made a part of the complaint. By it the testator describes Caroline and Joanna as his daughters. He gives them his surname and treats them in precisely the same way as his conceded legitimate children. There is nothing in the will or in the complaint itself which indicates, even by inference, that Caroline and Joanna were not legitimate daughters of the testator, unless it be the allegation that the plaintiff is the only legal representative of Timothy, which is not the statement of a fact, but a mere conclusion of law which does not raise an issue.
Second. I do not think the plaintiff is in a position to raise such issue or question in any way the legitimacy of Caroline and Joanna. He brings the action as substituted trustee of his father's will and it is his duty as such trustee to carry out what his father intended. This he is legally bound to do, if such intent can be ascertained. It is not part of his duty to prove that Caroline and Joanna were illegitimates. His father stated them to be his daughters and this is sufficient for the plaintiff. He need go no further because every legal presumption is in favor of their legitimacy. 'The existence of such a presumption,' says Judge MARTIN in Matter of Matthews (153 N.Y. 443), 'is in consonance with every correct sense of propriety and justice. Any other rule would be fraught with danger and produce immeasurable uncertainty. Property rights would be rendered doubtful, and the fair fame of their ancestors might be destroyed by the cupidity of remote heirs and next of kin. There might be others who would be willing to dishonor their ancestors and bastardize their relatives to increase their patrimony.' The testator, of course, had a right to dispose of his property as he saw fit. He could treat his legitimate and illegitimate children alike. Here it is perfectly obvious that he intended to treat Caroline and Joanna in precisely the same manner ...