In re the Estate of Tompkins

In a proceeding to establish the right of inheritance to real property, petitioner appeals, as limited by his brief, from so much of a decree of the Surrogate’s Court, Putnam County, entered July 23, 1975, as, after a hearing, granted the objectants’ claim. Decree affirmed insofar as appealed from, with one bill of costs jointly to respondents payable by petitioner, as executor. The evidence in this record adequately supports the Surrogate’s determination. Further, there is a legal presumption that every 653 child is born legitimately; the burden of establishing illegitimacy is upon those who assert it (4B Warren’s Heaton, Surrogates’ Cts, § 403, par 13, cl [b]; see, also, Matter of Matthews, 153 NY 443). Hopkins, Acting P. J., Cohalan, Shapiro and Suozzi, JJ., concur. -