In re the Estate of Losee (119 A.D. 107, 1907)

The following is -the opinion of the surrogate:

Church, Surrogate:

This matter lias been before the court on several occasions and the rights of the different parties have never been definitely, determined; . I shall, therefore, deterinine-every .question arising in' Order that this somewhat involved proceeding may be finally disposed of.

■ Cornelius Losee. lived on Long Island, and .about 1850, married a woman, Harriet fiSmitli, by whom he had a child, Stephen Losee ; later he moved tó Connecticut, where he lived with another woman by whom lie had children, o'ne'of whom was named Thomas Losee'. I am satisfied that this marriage was illegal, and that Thomas Losee was ah illegitimate son. Cornelius Losee, for .the-last fifteen years of his life, wasan inmate of the poorhonse in Darien, Conn,, at which place he died on November 15, 1896, leaving no estate or debts. • Stephen. Losee never married, and in February, 1889, he disappeared under, circumstances; showing an intention to commit suicide.

Thomas Losee,. in • 1896, more than seven years after- Stephen’s disappearance, made an effort to be appointed administrator of Stephen’s estatein this-'matter the question of his illegitimacy was raised but not'determined, as'it appears that Thomas was not-com-potent to receive letters, In April, 1897, the next of kin, on petition, secured letters of administration on his estate and later made an'accounting. '

It is to be noted that the next of kin of - Stephen Losee at the date of administration are the same, persons as the next of kin of Cornelius Losee. In their final accounting they made no mention of Thomas Losee (the illegitimate), nor did they procure an administration of Cornelius Losee’s estate, .but made direct division between themselves.

In August, 1896, Thomas Losee had got what is claimed to be an assignment from Cornelius of all his share in his son Thomas’ estate.. .

Thomas Losée died. March 21, 1897, leaving a will making his wife (the petitioner herein) his sole legatee and sole executrix therein, In March, 1899, she filed a petition herein 'to open the. final decree of distribution; a decision was made therein in April, ’ 1900, which simply opened the decree and let the parties, come in and be heard in order that their rights might be determined. Subsequently on April 15, 1901, letters of administration were issued upon the.estate,of Cornelius Losee; no attempt was made to go ori with the hearing, but in 1902 the petitioner made a motion to have, the entire estate turned over to her, which motion was denied.

The pres'ent motion is now made by the petitioner in a double , capacity—.as administratrix