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§ 26. Child born after making of will. Whenever a testator

shall have a child born after the making of a last will, either in the lifetime or after the death of such testator, and shall die leaving such child, so after-born, unprovided for by any settlement, and neither provided for, nor in any way mentioned in such will, every such child shall succeed to the same portion of such parent's real and personal estate, as would have descended or been distributed to such child, if such parent had died intestate, and shall be entitled to recover the same portion from the devisees and legatees, in proportion to and out of the parts devised and bequeathed to them by such will.

Formerly 2 R. S. 65, $ 49, amended in 1859:

§ 49. Whenever a testator shall have a child born after the making of his will, either in his life-time or after his death, and shall die, leaving such child, so after born, unprovided for by any settlement, and neither provided for, nor in any way mentioned in his will, every such child shall succeed to the same portion of the father's real and personal estate, as would have descended or been distributed to such child, if the father had died intestate, and shall be entitled to recover the same portion from the devisees and legatees, in proportion to, and out of the parts devised and bequeathed to them, by such will.76

2 R. S. 65, $ 49, was amended by chapter 22, Laws of 1869 to read as follows:

CHAPTER 22. AN ACT to amend section forty-nine of article three of title one, chapter six of part two of the Revised Statutes, relative to inheritance.

Passed February 19, 1869; three-fifths being present.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Section 1. Section forty-nine of article three of title one, of chapter six of part two, of the Revised Statutes, is hereby amended so as to read as follows:

§ 49. Whenever a testator shall have a child born after the making of a last will, either in the life-time or after the death of such testator, and shall die leaving such child, so after born, unprovided for by any settle

76 Repealed, $ 130, Decedent Estate Law.

ment, and neither provided for, nor in any way mentioned in such will, every such child shall succeed to the same portion of such parent's real and personal estate, as would have descended or been distributed to such child, if such parent had died intestate, and shall be entitled to recover the same portion from the devisees and legatees, in proportion to and out of the parts devised and bequeathed to them by such will.77

Comment. The provision now contained in section 26, Decedent Estate Law, was an amendment intended to supply some deficiency in the common law. It was first introduced by the Revised Statutes of 1830.78 Chancellor Kent, in his great Commentaries on American Law has, with his usual brevity, clearness and precision, given the essential features of the old law governing the constructive revocation of last wills by subsequent marriage and birth of issue.79 Prior to the Revised Statutes it was the better opinion that both subsequent marriage and birth of issue must concur in order to operate as a constructive revocation of a prior will or devise of the parent and spouse; but even such a presumption of revocation might be rebutted by parol.80 The subsequent birth of issue alone, prior to the Revised Statutes, did not operate as a constructive revocation of either a prior will or a prior devise. 81 The New York revisers of the Revised Statutes regarded the law concerning constructive revocation by subsequent birth of issue alone as doubtful,8o and they intended to provide for a case where the father died without revocation of his prior will, leaving a posthumous child surviving, and unprovided for by any settlement, and not provided for or mentioned in the will. At that time, this section of the Revised Statutes had no reference to the wills of female parents,83 the Married Woman's Property Acts not then enabling them to devise or bequeath their real or personal property,

79

77 Repealed, § 130, Decedent Estate Law.

78 See revisers' note 8, Appendix II, infra.

4 Kent Comm. 520, seq 80 See note to (4th Amer, ed.) Jarman on Wills, 151, quoting 4 Kent Comm. 523, 524; Brush v. Wilkins, 4 Johns. Ch. 506; Smith v. Robertson, 24 Hun, 210; Wormser v. Croce,

120 App. Div. 287, 289; Cotheal v. Cotheal, 40 N. Y. at p. 408. Cf. $ 35, Decedent Estate Law.

81 Ibid., supra.

82 See note 8, Appendix II, infra. Cf. Bloomer v. Bloomer, 2 Bradf. 339.

83 Cotheal v. Cotheal, 40 N. Y. 405, over-ruling in effect Plummer v. Murray, 51 Barb. 201.

without the husband's consent, unless there was a marriage settlement and a power reserved to the wife to devise or will.

In 1869 the Revised Statutes were, however, amended so as to include in its operation the wills and devises of female parents, as subsequent to the year 1849 they enjoyed a power of disposition over their separate estate, notwithstanding their marriage.84 The statute of 1869 applies to wills of persons dying thereafter even if made before 1869.45

It has been said, that this section of the statute is based not on the rule of the common law but on that of the civil law. 86 But the provisions of the civil law, thus indirectly referred to in Wormser v. Croce, relate wholly to constructive revocation of wills and testaments,87 and this section of this statute it is held does not, even under the circumstances in it indicated, occasion the revocation of the entire will. It merely renders it inoperative to a certain and specified extent. Subsequent birth of issue is said by the Court of Appeals not to be a revocation of the prior will, and yet certainly it operates as a pro tanto revocation, for a person dying wholly testate is made intestate by the statute as to the portion of the posthumous heir, but as to that portion only. Such heir then takes by the statute and the will is partly inoperative. As the will becomes partly inoperative, it is not error to say that it is partly revoked.

When this Section of this Statute Applies. This section has no application when both marriage and birth of issue follow the making of the will.89 Three facts must concur in order to make this section of the Decedent Estate Law applicable: (1) A child born to testator after the making of testator's will; (2) its survival of the testator; and (3) a total failure on the part of the testator to mention or to provide for such after-born surviving child, either by some settlement, made by testator, or by some provision in the will inclusive of the after-born children. It may be well to consider separately each of the three factors controlling the application of this section of this statute.

84 See above, p. 59; chap. 22, Laws 87 Inst. 2, 13, 1; Fr. 3, 2 D, 28, 31; of 1869; Matter of Huiell, 6 Dem. Const. 4. C. 6, 29; Gaius II, 88 138352, 17 N. Y. St. Rep. 715; Matter 145. of Murphy, 144 N. Y. at p. 560; 88 Smith v. Robertson, 89 N. Y. Obecny v. Goetz, 116 App. Div. 807. 555, 558; Matter of Murphy, 144 id.

85 Obecny v. Goetz, 116 App. Div. at p. 561, over-ruling in effect Matter 807; s. C., 134 App. Div. 166.

of Rossignot, 50 Misc. 231; Obecny 86 Wormser v. Croce, 120 App. v. Goetz, 116 App. Div. at p. 811. Div. 287; Bloomer V. Bloomer, 2 89 See $ 35, Decedent Estate Law. Bradf. 339, 344.

Subsequent Birth of Children. Only a child of the testator born subsequently to the making of the testator's will, silent as to such after-born child, can invoke or have the benefit of this statute. We have seen that subsequent birth of a child does not per se operate as a revocation of a will. This hardship was the mischief within the purview of the statute, which consequently operates only in favor of the particular children born after the making of the prior will. This statute has no application to those children of the testator who were born before the will was made. As to them the testator has full power of disinherison, and this statute affords them no relief against the exercise of such an arbitrary power.92

In the case of a mother's will, it seems, that the after-born child, taking the benefits of this section, may be one born out of wedlock, or illegitimate.93 Doubtless, since the statute legitimating children born before the subsequent marriage of their parents (legitimatio per subsequens matrimonium), such children may have the benefit of this section as other legitimates, and even in the case of the father's will.94

Such After-Born Children Must Have Survived the Testator. As every will is ambulatory until death of the testator, the will referred to in this section has no operation until parents' death, and this statute applies only to surviving children, or to a condition existent on the death of the parent. If at that point of time the child who is born after the making of the parent's will is also dead, it is obvious that such child personally can not have the benefit of the statute. The statute benefits only surviving children.95

The Will Must be Silent as to Such After-Born Children and the Children Otherwise Unprovided for. The statute seems to 90 Matter of Gall, 5 Dem. 374.

94 § 24, Domestic Relations Law; 91 Supra, p. 216.

Davis v. Davis, 27 Misc. 455. 92 Tavshanjian v. Abbott, 130 App. 95 Tavshanjian v. Abbott, 130 App. Div. 863, 864.

Div. 863, 864. 93 Bunce v. Bunce, 27 Abb. N. C. 61, 20 Civ. Pro. Rep. 332. Cf. Mattor of Bunce, 6 Dem. 278.

contemplate, that a mere mention of the child, so after-born, in the testator's will rebuts the statutory presumption, that the testator overlooked the child so after-born; but such mention must be express.98 The statute obviously can not intend, that the testator shall be deprived of the right or power to disinherit his after-born children only, nor did it intend to place after-born children in a more favorable situation in this respect than those of the testator's children born before the making of the will. It intended only that there must be an express execution of such a power in the case of after-born children. This being so, it is obvious that any provision by the testator for an after-born child, however slight that provision may be, satisfies the statute; for if a testator has a power to disinherit them, he has a power to give to them as he pleases.97

To make this section applicable, the after-born child must be neither provided for in any settlementos nor benefited by the will complained of, for if he is, this statute is inapplicable. Thus a provision in a will, in substance that after the death of testator's widow a reversion or remainder on the widow's life estate shall vest or belong to those who are then testator's heirs-at-law, or his heirs “by blood,” satisfies the statute, and such a will is not silent as to after-born children.98

99 But it has been said, that such a remainder must be vested and not contingent in order to be a constructive satisfaction of the statute.1

But the provision for the after-born child in the parent's prior will, however small it may be, must be apparent and not illusory or in right of another. Thus a provision for the child's mother is not a provision for the post-testamentary child within the meaning of this statute.2

96 See 26, Decedent Estate Law; Stachelberg v. Stachelberg, 52 Misc. 22, 24 (revd., 124 App. Div. 232, 192 N. Y. 576); Wormser v. Croce, 120 App. Div. 287; Tavshanjian v. Abbott, 130 id. 863, 865.

97 Tavshanjian v. Abbott, 130 App. Div. 863. Sed cf. Minot v. Minot, 17 id. 521.

98 Obecny v. Goetz, 116 App. Div. 812, citing Matter of Huiell, 6 Dem. 354; Matter of Lally, 136 App. Div.

99 Minot v. Minot, 17 App. Div. 521; Wormser v. Croce, 120 id. 287; Matter of Morgenstern, 9 Misc. 198. Cf. Stachelberg v. Stachelberg, 52 id. 22, 124 App. Div. 132, 192 N. Y. 576.

1 Minot v. Minot, 17 App. Div. at P. 524.

2 Udell v. Stevens, 125 App. Div. 196.

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