#### Stanley Dwight, as Substituted Trustee under the Last Will and Testament of Timothy Dwight, Deceased, Plaintiff, *v.*Harrison Jeffray Gibb and Charles Alexander Gibb, Respondents, Impleaded with Lilian Constance Jeffray and Others, Defendants. Stanley Dwight, Individually, Appellant. (Appeal No. 1.)

First Department,

June 2, 1911.

Deposition — motion for commission — inadmissible evidence — illegitimacy — facts not in issue — pleading — conclusion — evidence — presumption — trustee — legal representatives defined — appeal — right of one not appearing. .

A motion for a commission to take testimony on written interrogatories should be denied when it appears that the testimony sought would be inadmissible at the trial.

Where in an action .by a substituted trustee to account and for a distribution of the trust fund, the will and codicil creating. the .trust fund, wherein, the testator describes two of the residuary legatees as his daughters, gives them his . surname and treats them in the same way as liis concededly legitimate children, are annexed to and made part of the complaint and none of the pleadings raises any issue as- to the legitimacy of the daughters, a'motion by the plaintiff for a commission to take testimony to establish that they are illegitimate should he denied.

An allegation of the complaint that plaintiff is the only legal representative of one of testator’s deceased sons is a mere conclusion of law, and raises no issue as to the legitimacy of the daughters.

*224Every legal presumption is in favor of the legitimacy of children. It is- the duty of the substituted trustee' under the will to carry out the testator’s wishes, and he cannot question the legitimacy of children whom the testator has stated to he his daughters. The ordinary meaning of the words “ legal representatives ” is executors and administrators. But where a testator in providing for the final distribution of a trust fund directs that it be paid'to his children “ and to their legal repi’esenta-tives,” it will be presumed, in the absence of words indicating a contrary intent, that he used the term in the same sense in which it is used in. the Statute of Distributions, that is to say, lineal descendants.

Where the trustee made himself a defendant in his individual capacity and then in that capacity defaulted in pleading, and also failed to appear individually on the motion for a commission, he cannot appeal in his . individual capacity from the order denying that motion.

Scott and Mills®., JJ., dissented.

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 res[3ondents.

McLaughlin, J.:

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 propor*225tions.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 App. Div. 576.) I think such testimony would be inadmissible for the following reasons: •

*First.*There is no issue raised by the pleadings as to the *226legitimacy 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 J oanna as his daughters. He gives them his surname and treats them in precisely .thó 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 J oanna 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.*J 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 as he did 'his daughter Grace. He made, no distinction whatever between them. Each was to receive an equal part of his estate for life, and upon her death the, principal was to go to her children if she. had any, 'The testator, so far as he could' by words used in his will, excluded the possibility of any question being raised as to the legitimacy *227of any of liis children. He intended they should all be treated as legitimates in the distribution of the trust estate, and a trustee appointed to carry out his intent cannot be heard to assert the contrary. His intention being' clear, effect must he given to it. *(Robinson*v. *Martin,*200 N. Y. 159.) The test is not-what was the status at law of Caroline and Joanna, but how each was “treated in the nomenclature or vocabulary of the testator.” *(Dodin*v. *Dodin,*16 App. Div. 42; affd., 162 N. Y. 635.)

In *Gelston*v. *Shields*(16 Hun, 143; affd., 78 N. Y. 275) it was stated that if a man clearly indicates in his will whom he means by his “wife,” it is unnecessary to consider whether she was' so in fact, and that *“prima*facie. the word ‘ children’ means legitimate children. But when it appears from the will itself, by express, designation, of by necessary implication, that the intended objects of the testator’s bounty are illegitimate children, they will tajee under the description of ‘children.’ ‘Necessary implication,’ said Lord Eldon in *Wilkinson*v. *Adams*(I V. & B. 422-466), ‘means not natural necessity, but so strong a probability of intention, that an intention contrary to that which is imputed to the testator cannot be supposed.”’

If the foregoing views be correct as to the testator’s intent, then it seems to me the question presented is not difficult of solution. The usual and ordinary meaning of the words ‘ ‘ legal representatives ” is executors or administrators. *(Griswold*v. *Sawyer,*125 N. Y. 411; *Sulz*v. *Mutual Reserve Fund Life Assn.,*145 id. 563; *Geoffroy*v. *Gilbert,*5 App. Div. 98; affd., 154 N. Y. 741.) But the testator did not use these words in that meaning. This, both of the parties seemed to concede — the plaintiff necessarily so, because he does- not allege in his complaint whether the son Timothy died testate or intestate, and he has not made his executor or administrator a party. The testator used these words, as it seems to me, in the same sense they are used in the Statute of Distributions (Decedent Estate Law [Consol. Laws, chap. 13; Laws of 1909, chap. 18], § 98, as amd. by Laws of 1909, chap. 240)—lineal descendants. The testator was providing for the final distribution of a fund which he had given in trust, and in the absence of words indicating an intent to the contrary, it must be presumed that he *228used those words in the same, sense that they are used in the statute. *(Greenwood*v. *Holbrook,*111 N. Y. 165.) And, indeed, in this connection it is to he noted that the plaintiff himself adopts this meaning so far as Caroline and Joanna are concerned, because he makes their lineal descendants parties defendant. They could only-be made parties defendant upon the theory that Caroline and Joanna, if hying’, would each be entitled to one-fourth of the fund, and this one-fourth in-each case has passed to the lineal descendants by representation.

*Third.*The plaintiff, as we have already seen, made himself a defendant in his individual capacity. He made default in pleading, as he did upon the- motion which resulted in the order appealed from. Notwithstanding that fact he appeals individually. His appeal is -ineffectual because he is not in a position to - question the validity of the order. (Code Civ. Proc. § 1294; *Matter of Jones Lumber Co.*v. *Fulton,*123 App. Div. 386.)

The order appealed from, therefore, should be affirmed, with ten dollars costs and disbursements. • '. ;

INGRAHAM, P. J., and Dowling,'J., concurred; Scott and Miller, JJ., dissented.

Order affirmed, with ten’dollars costs and disbursements.