Keavey v. Barrett. in the Isle of Man, and had several children by her besides the complainants. Previous, however, to the birth of the two complainants, who were his youngest children, there was evidence tending to show that a ceremony of marriage between him and his wife was performed, on a certain day in his private house, by an English clergyman, who was shown to be a man of dissolute habits and bad character. The statute of the Isle of Man rendered that marriage absolutely void, unless performed under a special license of the bishop. The person then bishop afterwards became bishop of Rochester, England, and swore positively that he never granted any such license; gave as a reason that he would not have done so, because he knew that Sir John Piers was living in open adultery with the alleged wife. No record of the marriage or of any license could be found. The lord chancellor of Ireland held, upon those proofs, that the marriage was a nullity. But the house of lords, advised by Lords Cottenham, Brougham and Campbell, unanimously reversed that decision, and held the presumption of law in favor of the marriage was so strong as not to be overcome by such proof. Lord Campbell uses language (at p. 380) which I will quote: "My lords, my opinion is that a presumption of this sort, in favor of a marriage, can only be negatived by disproving every reasonable possibility. I do not mean to say that you must show the impossibility of any supposition which can be suggested to support the validity of the marriage; but you must show that this is most highly improbable, and that it is not reasonably possible. My lords, to avoid such a peril, the law requires that you should negative every reasonable possibility." And one reasonable possibility which he said was not negatived was that the previous bishop of Man might have granted a license years before the ceremony, which Sir John Piers held in his pocket until his wife again became enceinte. He further uses this language. "In the first place, I must draw your lordships' attention to the presumption of law which requires a judge not to exercise his own private notion or to indulge in his own private opinions upon the subject, but to believe that everything was solemnly and effectively done." Then, speaking of the speculation as to * * ** Keavey v. Barrett. whether or not a license might have been granted by the previous bishop, he says (at p. 383): "Your lordships will also bear in mind that I am not bound privately to believe either one speculation or the other. The question is, are they all satisfactorily negatived? I am not bound to believe that Dr. Crigan granted the license; but it is possible that he may have done so, and that possibility is enough for me to act upon, if it is not satisfactorily negatived." The statement of the law made by Lord Lyndhurst, in Morris v. Davies, 5 Cl. & F. 265, was adopted. Speaking of the presumption of law in that connection, he says: "It is not to be broken in upon or shaken by a mere balance of probability; the evidence for the purpose of repelling it must be strong, distinct, satisfactory and conclusive." Applying that rule to the case in hand, I am bound to presume that Mrs. Barrett, then Miss Maloney, was married to the father of complainant before the latter was born. Such a fact is not only "reasonably possible," but highly probable. Other cases are Wilson v. Hill, 2 Beas. 143; Fenton v. Reed, 4 Johns. 52; In the matter of Taylor, a Lunatic, 9 Paige 611; Campbell v. Campbell, L. R. 1 H. L. Cas. (Sc. App., 1867) 182 (Breadalbane Case), and De Thoren v. Attorney-General, L. R. 1 App. Cas. 686 (1876). These and other cases were referred to by me in the case of Stevens v. Stevens, 11 Dick. Ch. Rep. 488. There is nothing in the famous case of Voorhees v. Voorhees, 1 Dick. Ch. Rep. 411; S. C., 2 Dick. Ch. Rep. 315, 555, which affects the present case. The court there simply held that where a cohabitation between a man and woman commenced and was founded upon a ceremony of marriage which was rendered void by reason of incapacity of one of the parties to contract, the court would not presume a second marriage, after the incapacity was removed, from the mere continuance of the cohabitation. Besides these, I am indebted to counsel for complainant for the case of In the matter of Matthews, 153 N. Y. 443, which is much in point, and where some of the older cases, including Caujolle v. Ferrie, 26 Barb. 177, are cited. The Matthews Case was a contest between the children of a deceased half Keavey v. Barrett. sister of the decedent and the children of her brother of the whole blood. The half-sister was the child of the mother of the decedent, born of her before her marriage with the father of the decedent and of the brother of the whole blood, so that it will be seen that the contest was substantially the same as that before the court in this cause. There was there no proof of the marriage of the common mother with the father of the halfsister. The surrogate held that the burden of proving that the half-sister was illegitimate was upon the brother of the whole blood, and that the absence of direct proof of marriage was not sufficient to sustain that burden. That ruling of the surrogate was affirmed by the appellate division of the supreme court of New York. In the matter of Seabury, 1 App. Div. 231. The court of appeals affirmed that ruling, and said: "We are of the opinion that, it having been established that the respondent's mother was a half-sister of the decedent, the law presumed that she was legitimate, and the burden of establishing her illegiti macy rested upon the appellants." The learned judge also quoted Judge Cowen, in the case of Starr v. Peck, 1 Hill 270; Judge Clerke, in the case of Caujolle v. Ferrie, 26 Barb. 177, and Judge Andrews, in the case of Hynes v. McDermott, 91 N. Y. 451, in which the presumptions I have referred to are all stated in the strongest manner. It is not necessary for me to repeat them here. I am of the opinion that the pleas are not sustained by the proofs, and must be overruled, with costs. I express no opinion as to whether the evidence already adduced is sufficient to maintain the issue as against the infant defendants, who have, by their guardian, filed the formal answers of want of knowledge, submitting themselves to the court. Baldwin, Admx., v. Trowbridge. 62 468 64 458 JULIA F. BALDWIN, administratrix cum testamento annexo of Susan Baldwin, deceased, V. CAROLINE E. TROWBRIDGE, CORDELIA A. OGDEN, WILLIAM H. WILLIAM H. BALDWIN and CORA BALDWIN V. CLARK FOSDICK, PAULDING FOSDICK and JENNIE B. CHILDS and THE NEW YORK SECURITY AND TRUST COMPANY, trustees under the will of Charles B. Fosdick, deceased. [Submitted November 19th, 1901. Decided November 23d, 1901. Filed December 21st, 1901.] 1. Where testatrix directed her executors to hold realty for a period not exceeding ten years, and within that period to sell it and pay the proceeds in equal shares to her then living children, the share of any deceased child being paid to his issue, or, if without issue, divided among the children surviving at the time of such sale, the fund arising from a sale after the expiration of ten years should be divided as if the sale had taken place at the close of the ten-year period, so that the share of a child dying after the prescribed period, but before sale, should go to his representatives and nc be divided among his brothers and sisters. 2. Testatrix devised realty to the executor to hold in trust and sell within a certain period, and divide the proceeds between her then living children, the share of any deceased child to go to his surviving issue. The property was unproductive, and of little present worth, its future value depending largely on the ability of the heirs to hold it for market; so that one of testatrix's daughters, whose husband was executor, bought the interest of a spendthrift brother, avowing her intention of holding such interest for the benefit of his children, subject to the amount she paid Baldwin, Admx., v. Trowbridge. therefor. The children of this son were entitled to a share of the income of other property equal to the share of each of testatrix's other children, and the executor paid the taxes on the trust property from this income.Held, that the brother's share was held in trust for his children. 3. In a suit to construe a will, where heirs of one beneficiary filed a cross-bill against the executors of another, seeking to establish a trust in the share conveyed by their ancestor to such other beneficiary, evidence of other beneficiaries as to declarations of the grantee in the conveyance attacked was not inadmissible because by a party to the record against another party in a representative capacity, since the cross-bill was, in effect, a separate suit. 4. Where it was sought to establish a trust in land by showing that the property had been dealt with on the books of the alleged trustee as a trust estate, the signature of such trustee to checks drawn in pursuance to entries on the books which were made by his clerk was equivalent to a statement that his title was held on the basis shown by the books, and both together were sufficient to satisfy the requirement of the statute of frauds that a declaration of trust must be signed by the party. On bill for construction of will. On cross-bill for relief. On final hearing on bill, answers and proofs. The bill is filed by the administratrix cum testamento annexo of Susan Baldwin for the direction of the court as to the distribution of a fund in her hands of about twenty-one thousand dollars, which is the proceeds of the sale by her as such administratrix of a tract of land in the county of Bergen, in the State of New Jersey, of which the testatrix, Susan Baldwin, died seized. The bill is in the nature of an interpleader, and the issues under it are raised by the answers of the several beneficiaries under the will, or their legal representatives. The testatrix died in the month of July, 1881, domiciled in New York City, leaving six children, namely, Mary E. Fosdick, wife of Charles B. Fosdick; Caroline E. Trowbridge, Cordelia A. Ogden, Julia F. Baldwin (the complainant), Susan M. Baldwin and David W. Baldwin. Of these David W. Baldwin died intestate in 1891, leaving him surviving the defendants William H. Baldwin and Cora Baldwin. Mary E. Fosdick died about November 1st, 1895, leaving her husband, Charles B. Fosdick, and two grandchildren, Clark Fosdick and Paulding Fosdick, who are defendants herein, and |