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If the after-testamentary child is provided for by a settlement or in the will, this section has no application. But the section is vague. Whose settlement does the statute refer to? Is a settlement on it by a grandparent or by a stranger sufficient to take the case out of this section? It would seem not. Doubtless the settlement referred to must be one in some way on the part of the parent whose will is irruplum by the statute. Whether a marriage settlement of the wife's estate only, in which the husband joins, is a sufficient settlement to take the father's will out of the statute may be questionable. There seems to be no express adjudication in point.

Children's Shares When Statute is Applicable. When this statute applies, an after-born child takes the same share he would have taken had the testate parent died intestate, and no greater share. Quoad such a child the testate parent dies intestate." With this exception the provisions of the will remain, in so far as possible, intact and valid dispositions. The share of the posthumous child under the statutes regulating descent and distribution are simply to be subtracted from the testator's estate, and on the residue his will operates. A power of sale in the will becomes inoperative as to the share of the after-born child, but no further.

The after-born child acquires the share given by the statute, subject to funeral expenses and debts of parents and to the dower and distributive rights of the child's mother.'

For example, if a testator leaves only a widow and a post-testamentary child, not mentioned, or provided for in the will or otherwise, such child takes under this section all the real estate of the father, but subject to the dower of the widow.10

3 Obecny v. Goetz, 116 App. Div. 8 Mitchell v. Blain, 5 Paige, 588; 812, citing Matter of Huiell, 6 Dem. Smith v. Robertson, 89 N. Y, at pp. 354; Matter of Lally, 136 App. Div. 558, 559; Matter of Murphy, 144 id. 781.

at p. 561. 4 Smith v. Robertson, 89 N. Y. 9 Mitchell v. Blain, 5 Paige, 588; 555; Bloomer v. Bloomer, 2 Bradf. Smith v. Robertson, 89 N. Y. 555, 339; Rockwell v. Geery, 4 Hun, 606. 558; Herriot v. Prime, 155 id. at p.

5 Sanford v. Sanford, 61 Barb. 293. 8.

6 Matter of Murphy, 144 N. Y. 557, 10 § 28, Decedent Estate Law; 562; Luce v. Burchard, 78 Hun, 537. Smith v. Robertson, 89 N. Y. 555,

7 Smith v. Robertson, 24 Hun, 210, affd. 89 N. Y. 555.

558.

Even if the estate of the parent has not been distributed under the will, still, in segregating the posthumous child's share the devisees and legatees must each contribute ratably, in proportion to the real or personal estate devised or bequeathed to them respectively, in order to make up the share of such post-testamentary child.11

Section 28 of this act now regulates a case where the estate of the testator has been distributed, or is in the possession of devisees, legatees or their assigns.12

Father's Tenancy by the Curtesy in such a case. Where there is a post-testamentary surviving child, unprovided for by the mother's will or settlement, we have seen that the statute operates and the child takes the share he would take under the statutes regulating descent and distribution. In other words, as to this child's share, the parent has died intestate. If in such a case, there is also a surviving father, does the statutory intestacy first let in the father as to that share as the tenant by the curtesy? There seems to be no precise case as yet in point.

Adopted Children. The statutes relating to adoption have introduced a new element into the law of descents. But the adoption of a child is not operative to revoke a prior will under this section,14 nor does it seem that this section is relevant, even though the adopted child was actually born subsequently to the making of the adoptive parent's will.15

Children Legitimated per Subsequens Matrimonium. Children are now legitimated by the subsequent marriage of their parents.16 It has been lately held that the subsequent marriage entitles a child so legitimated, but born before the marriage, to the benefits of this section.17

13

11 Mitchell v. Blaine, 5 Paige, 588; Davis v. Davis, 27 Misc. 455. 12 Smith

v. Robertson, 24 Hun, 210, affd., 89 N. Y. 555.

12 See under art. 3, infra; cf. art. 7, Domestic Relations Law.

15 Matter of Gregory, 15 Misc. 407.

16 Chap. 531, Laws of 1895, now $ 24, Domestic Relations Law.

14 Matter of Gregory, 15 Misc. 407, 73 St. Rep. 3, 37 N. Y. Supp.

17 § 26, Decedent Estate Law; Matter of Del Genovese, 56 Misc. 418; and see Matter of Gall, 5 Dem. 374.

§ 27. Devise or bequest to subscribing witness. If any per

son shall be a subscribing witness to the execution of any will, wherein any beneficial devise, legacy, interest or appointment of any real or personal estate shall be made to such witness, and such will can not be proved without the testimony of such witness, the said devise, legacy, interest or appointment shall be void, so far only as concerns such witness, or any claiming under him; and such person shall be a competent witness, and compellable to testify respecting the execution of the said will, in like manner as if no such devise or bequest had been made.

But if such witness would have been entitled to any share of the testator's estate, in case the will was not established, then so much of the share that would have descended, or have been distributed to such witness, shall be saved to him, as will not exceed the value of the devise or bequest made to him in the will, and he shall recover the same of the devisees or legatees named in the will, in proportion to, and out of, the parts devised and bequeathed to them.

Formerly 2 R. S. 65, 88 50, 51:

$ 50. If any person shall be a subscribing witness to the execution of any will, wherein any beneficial devise, legacy, interest or appointment of any real or personal estate, shall be made to such witness, and such will cannot be proved without the testimony of such witness, the said devise, legacy, interest, or appointment, shall be void, so far only as concerns such witness, or any claiming under him; and such person shall be a competent witness, and compellable to testify respecting the execution of the said will, in like manner as if no such devise or bequest had been made.18

$ 51. But if such witness would have been entitled to any share of the testator's estate, in case the will was not established, then so much of the share that would have descended, or have been distributed to such witness, shall be saved to him, as will not exceed the value of the devise or bequest made to him in the will, and he shall recover the same of the devisees or legatees named in the will, in proportion to, and out of, the parts devised and bequcathed to them. 19

18 Repealed, § 130, Decedent Estate Law.

19 Repealed, $ 130, Decedent Estate Law.

Comment. By the civil law after the time of Justinian, one instituted “ heir could not be a witness to a will, as he was regarded as one person with the testator (i. e., a continuation of the legal persona), and if the will could not be proved without him, it was invalid.' But legatees and persons taking a benefit under a will by way of trust were not forbidden to be witnesses, because they were not universal successors of the deceased. 21

The ecclesiastical law of England seems prior to the Statute of Frauds to have followed much the same rule as the civil law, for Swinburne states, “ that where somewhat is bequeathed unto a witness this will is not sufficiently proved for those legacies; but for the rest of the will it seemeth to be sufficiently proved." 22

After the English Statute of Wills-3 had made land directly devisable, the Statute of Frauds*t required to the validity of a devise, that it should be attested by three or four credible witnesses.25 But a written will of goods and chattels was not affected by the Statute of Frauds and two witnesses sufficed, but not one, as one witness by the civil law was as no witness.26 We have seen that in respect of bequests of personalty, Swinburne was of the opinion, that by the old law interest of the attesting witnesses did not destroy the will, but only the legacy to the witness. But after the Statute of Frauds regulating devises of lands, the courts which had gained jurisdiction of devises began to exclude any attesting witnesses who had any interest however remote.?? Powell on Devises has given us the first and best short account of the growth of this doctrine, and the consequent inconvenience to titles. He is abundantly confirmed by the testimony of Blackstone”' and Kent.30

So great was the uncertainty of devises, by reason of the exclusion of attesting witnesses for interest, that finally parliament

20 Inst., 2, 10, 10.
21 Inst., 2, 10, 11.
22 Swinburne on Wills, 632.
3 32 Hen. VIII, chap. I.
24 29 Car. II.
25 See under $ 21, supra.

4 Burn's Eccles. Law, 122; and see above, under $ 21, Decedent Estate Law.

27 Helliard v. Jennings, Com. Rep. 91, Freem. 510; i Ld. Raym. 505 ; Carthew, 514.

28 1 Powell, Devises, 112 sq.
29 2 Comm. 377.
4 Comm. 508.

23

30

26

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deemed it better to deprive the witness of his interest or legacy, rather than to have the will thereby destroyed. The English Statute, 25 George II, chap. 6, was accordingly enacted to that end. This act did not extend to New York, but whether it was acted on in the Province of New York, as was the Statute of Frauds (which it amended, although that statute also did not extend here), is problematical. In any event it was included by Jones and Varick among the English statutes extending here,31 and thence it passed into the subsequent revisions of the statute law32 and finally as amended into the Revised Statutes of 1830.

As the revisers of the Revised Statutes considerably altered the re-enacted Statute of 25 George II, mentioned above, let us see how the act stood in the prior revision of 1813, where it read as follows: "And be it further enacted. That if any person be a witness to the execution of any will to whom any beneficial devise, legacy, interest or appointment affecting any real or personal estate, except charges on the real estate for the payment of any debt be given or made, such devise, legacy, interest or appointment shall, so far only as concerns such person or any claiming under him be void, and such person shall be admitted as a competent witness." This act in New York really amended the old Statute of Frauds (29 Car. II).33 It was nothing other than 25 Geo. II, chap. 6. The Statute of Frauds had received in England a sort of legislative interpretation in the Act 4 & 5 Anne, chap. 16, § 14, whereby three witnesses are required to authenticate a nuncupative will; and it is declared that such as are good witnesses in a trial at common law should be deemed good witnesses to prove a nuncupative will.** This act of 4 & 5 Anne, chap. 16, was re-enacted in New York in 1774.35 The Act 4 & 5 Anne was supposed to be a legislative interpretation of the Statute of Frauds, to the effect that the three or four credible witnesses required for a devise by the

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31 See 8 6 of the "Act to Reduce the Laws concerning Wills into one Statute," chap. 47, Laws of 1787.

33 See Jackson ex dem., etc. Woods, i Johns. Cas. at p. 164.

32 K. & R. 178, § 12; 1 R. L. of 1813, 367, § 12.

34 See 4 Burn's Eccl. Law, 110. 355 N. Y. Col. Laws, 689.

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