#### Hazel L. Davis, an Infant, by Her Guardian *ad litem,*Plaintiff, *v.*James Milledge Davis, James Everard, as General Guardian, etc., of James Milledge Davis, an Infant, et al., Defendants.

(Supreme Court, New York Special Term,

May, 1899.)

1. Heir — Legitimation by subsequent marriage of parents.

The law favors the presumption of legitimacy, and where the evidence indicates that a man had reason to believe and did believe himself to be the father of a child, his subsequent marriage to its mother, legitimatizes the child, under chapter 531 of the Laws of 1895, and entitles it to inherit from her.

*2.*Same — Child born after will made.

Under chapter 22 of the Laws of 1869 a child, born, after the making of the will of its parent and not provided for thereby, is entitled to such a share of the estate as it would have taken had the parent died intestate.

Action brought by Gordon MacDonald, as guardian *ad litem*for Hazel L. Davis, under article 5 of title 1, chapter 14 of the Code of Civil Procedure, relating to an. action to compel the determination of a claim to real property.

Jay *&*Candler (Egerton L. Winthrop and Walter L. McCorkle, of counsel), for plaintiff.

Gratz ¡Nathan, for guardian *ad litem,*and general guardian, James Everard.

David May, for defendant Catherine Kuriger.

Truax, J.

In February, 1890, when the defendant James Mill-edge Davis was born, his mother, the decedent Emily K. Davis, was unmarried. In January, 1891, she married one Milledge J. P. Davis, and thereafter she and the said defendant James Mill-edge Davis lived with the said Milledge J. P. Davis, and with the plaintiff Hazel L. Davis, who was born on the 23d day of August, 1893, and constituted his family. If the said James Milledge Davis is the son of the said Milledge J. P. Davis- and of the said Emily *456K. Davis, he is entitled to one-half of the estate of which his said mother died seized, under and by virtue of' chapter 531 of the Laws of .1895, which provides that “ all illegitimate children whose parents have intermarried or shall intermarry, shall hereby become legitimatized and shall be considered legitimate for all purposes and shall enjoy all the- rights and privileges of legitimate children.

The evidence as to the paternity of the said James Milledge Davis is slight, but I am of the opinion that' there is sufficient evidence to warrant the finding and I do' find that Milledge J. P. Davis is his father. The evidence shows that the said Milledge J. P. Davis and the mother of said James -Milledge Davis were frequently together prior to the birth of said James Milledge- Davis, in fact it shows that they “lived” together; that Milledge J. P. Davis was present in the house at the time said James Milledge Davis was born; that after the birth of said James Milledge Davis, said Milledge J.'P. Davis and the mother of James-Milledge Davis were married by a clergyman; that said James Milledge Davis was a part of the family of said Milledge J. P. Davis and- of his said wife Emily K. Davis; -that when said James Milledge Davis became .old enough to talk he called the said Milledge J. P. Davis “ papa ”;. and that he bore one of the names “ Milledge ” of said Milledge J. P. Davis. This- is enough to raise the presumption that the said Milledge J. P. Davis believed and had reason to believe that said James Milledge Davis was his son and this presumption has not been rebutted. The law favors the presumption of legitimacy. .

The said Emily 3L .Davis left a last will and testament which was made after her marriage to the said Milledge J. P. Davis and before the birth of the plaintiff, Hazel L. Davis. By this will she devised all her property both real and personal to a trustee to-be held for the benefit of her son James Milledge Davis. Ho provision was -made in the v/ill for the plaintiff, and, therefore, under chapter 22 of the Laws of 1869, the plaintiff' succeeds to such portion of her mother’s estate as would have descended to her if her mother had died intestate, that is the said Hazel L. Davis succeeded to one-half of her mother’s estate, both real and personal. The other half is held by, the trustee under the last will and testament of said Emily K. Davis in trust for the defendant, James Milledge Davis.

Ho cause of action was proved on the trial against James Everard ■ as" general guardian of. the person and estate of the said Jame.-1 *457Milledge Davis, and as to him the complaint should he dismissed, but as he has appeared as guardian *ad litem*and as general guardian by one attorney, the complaint should be dismissed as to him as general guardian without costs.

The defendant Catherine Kuriger has been sued individually and as administratrix, with the will annexed of Emily K. Davis, deceased, and as trustee of the trust for the benefit of the said James Milledge Davis, created by the will of said Emily K. Davis, deceased, and as general guardian of the person of said Hazel L. Davis, the plaintiff. The only capacity in which she has any interest is as trustee of the above-mentioned trust, and as such trustee she is entitled to one-half of the property mentioned and described in the complaint.

Let a decree be entered adjudging that the plaintiff Hazel L. Davis is entitled to one-half of the property mentioned in the complaint; that the defendant Catherine Kuriger, as trustee as aforesaid, is entitled to the other half of said property. The plaintiff is not entitled to costs. Costs are awarded to the defendant James Everard as guardian *ad litem*of the said James Milledge Davis, and to Catherine Kuriger, as administratrix of the will annexed as aforesaid. Said costs to be paid out of the estate. Decree to be settled on notice.

Ordered accordingly.