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MATTER ESTATE ALBERTA KING (01/20/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


January 20, 1969

IN THE MATTER OF THE ESTATE OF ALBERTA KING, DECEASED. WINFIELD KING, APPELLANT; JOHN Z. DERBY, SPECIAL GUARDIAN, RESPONDENT

Appeal by the administrator, the decedent's husband, from a decree of the Surrogate's Court, Kings County, dated May 19, 1967, which (1) confirmed the report of a Referee, (2) denied a cross application to disaffirm the report, and (3) adjudged that the decedent died survived by a son, Harold Johnson, and that said Harold Johnson was an intestate distributee of the decedent and entitled to one half of her estate.

Brennan, Acting P. J., Rabin, Hopkins, Benjamin and Martuscello, JJ., concur.

One of the exhibits before the Referee was a copy of a South Carolina birth certificate. That certificate was filed February 19, 1943 and signed by Albertha Johnson King as mother. It states her address in Brooklyn, New York, and recites that a boy child named Harold Johnson was born to Alberta Johnson on April 8, 1916 in Charleston. There is no claim that the transcript was not properly authenticated; and we are of the opinion that it was admissible in evidence as a declaration in regard to pedigree (cf. Aalholm v. People, 211 N. Y. 406, 412-413). The decedent's relationship to Harold Johnson, the claimant here, was sufficiently shown by the identity of names and similarity of residence (cf. Young v. Shulenberg, 165 N. Y. 385, 388-389; Layton v. Kraft, 111 App. Div. 842, 845-846). The birth certificate established, prima facie, that Harold Johnson was the decedent's son and the Referee's finding to that effect was warranted in view of the complete absence of any proof to the contrary.

Disposition

Decree affirmed, with costs to respondent, payable out of the estate.

19690120

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