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2 R. S. 456, &$ 62-66:

$ 62. In cases where, by the provisions of any statute, a child born after the making of a will, shall be entitled to succeed to a portion of the testator's real and personal estate, such child shall have the same rights and remedies to compel a distribution of the personal estate, and a partition of the real estate, as are provided by law for next of kin and for heirs ; and shall in all respects be liable, in the same manner and to the same extent, to the creditors of his ancestor, in respect to the personal property delivered to him, and the real estate descended to him, as are herein prescribed in relation to next of kin and heirs.64

§ 63. Such child shall be authorized to recover of the legatees who may have received any property or effects of the testator, the portion of such property or effects to which he may be entitled, by an action of replevin, or of trover or assumpsit, as the case may require; and shall also be entitled to recover of the devisees of any real estate under the will of the testator, such portion of such real estate as shall belong to him.65

§ 64. In cases where a distribution of such personal estate shall not have been made by the surrogate, to any such child born after the making of a will, the court of chancery shall have power to compel the same; and the said court shall have power also to compel just and equal contribution by the legatees under such will, to make up the portion of personal property to which such child shall be entitled.66

$ 65. The court of chancery shall also have power to compel partition between the devisees of any real estate, and such child so entitled to a portion of such real estate, so as to enforce a just and proportionate contribution by each devisee.67

$ 66. The foregoing provisions relative to a child after the making of a will, shall apply equally in all respects to every person who, being a witness to a will, shall be entitled by the provisions of any statute, to recover any portion of the personal or real estate of the testator, from the legatees and devisees named in such will.68

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After-Born Child Enabled. This section was, in its original form, an enabling section, entitling an after-born child to a specific remedy in a case on the The remedy at law obviously

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would have been very inadequate. In Mitchell v. Blain the rights of such child in a particular case were determined. This section expressly enables a post-testamentary child who is within the statute to maintain an action against legatees or devisees,l and this right is extended by construction to assigns of devisees.72 In addition, this section gives to the post-testamentary child, who is within the statute, the same rights that any other person has to compel a distribution of decedent's estate, or to compel a partition of the


This section has no reference to a case where both the marriage of a parent and the birth of a child are posterior to the making of the will, which it is claimed is thereby rendered inofficious

(testamentum inofficiosum"), or destroyed (ruptum), by reason of such subsequent birth.74 That condition of affairs is remedied by another section of this act.75

Since the statute legitimating prior issue of parents by a subsequent marriage of the parents (legitimatio per subsequens matrimonium) it may, however, be claimed by such issue, if they were born before the civil marriage but after the making of the parent's will, that this section now applies to them.

Subscribing Witness. A subscribing witness mentioned in this section is one referred to in the prior section of this act."

70 5 Paige, 588; 2 R. S. 456, 8 64.

71 g 28, Decedent Estate Law; Rockwell v. Geery, 4 Hun, 606.

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

73 Estate of Orser, 4 N. Y. Civ. Pro. Rep. 126.

74 Matter of Gall, 5 Dem. 374.
75 § 35, Decedent Estate Law.
76 § 24, Domestic Relations Law.

77 See 2 R. S. 457, $ 66, supra, p. 230; § 1868, Code Civ. Pro., supra, p. 229.

§ 29. Devise or bequest to child or descendant not to lapse.

Whenever any estate, real or personal, shall be devised or bequeathed to a child or other descendant of the testator, and such legatee or devisee shall die during the lifetime of the testator, leaving a child or other descendant who shall survive such testator, such devise or legacy shall not lapse, but the property so devised or bequeathed shall vest in the surviving child or other descendant of the legatee or devisee, as if such legatee or devisee had survived the testator and had died intestate.

Formerly 2 R. S. 66, § 52:

$ 52. Whenever any estate, real or personal, shall be devised or bequeathed to a child or other descendant of the testator, and such legatee or devisee shall die during the life-time of the testator, leaving a child or other descendant who shall survive such testator, such devise or legacy shall not lapse, but the property so devised or bequeathed shall vest in the surviving child or other descendant of the legatee or devisee, as if such legatee or devisee had survived the testator and had died intestate.78

Doctrine of Lapse. Mr. Jarman .in his admirable “Treatise on Wills " gives a concise account of the old doctrine of lapse, applicable in New York before the Revised Statutes. He states "that it is a necessary consequence of the ambulatory nature of wills; which not taking effect until the death of testator can communicate no benefit to persons who previously die; in like manner as a deed can not operate in favor of those who are dead at the time of the execution.' This doctrine of lapse applied indiscriminately to gifts with and without words of limitation to heirs or to heirs of the body, and it also applied equally to bequests of personalty, even where words of limitation to his executors or administrators had followed the bequest to a person deceased before the will took effect.80 Where mere words of limitation, and not of substitution,

> 79

78 Repealed, § 130, Decedent Estate Law.

79 Chap. XII (ist ed.).

80 Ibid., supra; and see Matter of Wells, 113 N. Y. at p. 403; Kimball v. Chappel, 27 Abb. N. C. 437.


were added to a devise or bequest to a person who dies before testator, they did not prevent a lapse. 81

Such was the settled law of this State prior to the provisions of the Revised Statutes, set out above under this section.82 There

were, however, even before the Revised Statutes, certain recogi nized and settled exceptions to the rule, that legacies and devises

always lapsed by the death of the legatee or devisee before the testator: Such as (1) if a testator devised or bequeathed property to "A," and in case of his death, under the age of twenty-one years, to "B," the gift to “B” took effect in the event that "A" died under twenty-one, either in the lifetime of the testator or afterward.83 (2) Gifts to a class as joint tenants or even as tenants in common did not lapse, unless all died before the testator or the class was otherwise determined in testator's lifetime.8

(3) Wherever an executory limitation was limited on the failure of the preceding devisee to do certain acts after the testator's decease, it would not be defeated by the death of such preceding devisee in the testator's lifetime. (4) Where an estate was limited to a person not in esse, with a limitation over in case he omit to do certain acts, or in the event of his dying under twenty-one, or without issue, the devise over took effect, although the preceding devisee never came into existence.85

It will be seen that these exceptions are generally conditional limitations or executory devises. In other words, "conditional limitations," or executory devises, were so construed, wherever possible, as to give effect to the subsequent limitations, in the event of the death of the first devisee in the lifetime of the testator. But there were many cases where such a construction could not be accorded without injustice, and then the limitation over naturally failed.

81 Brett

v. Rigden, Plowd. 340, 345, cited 113 N. Y. 403; 30 N. Y. at p. 418.

82 Mowatt v. Carow, 7 Paige, 328, 336; Bishop v. Bishop, 4 Hill, 138; Van Beuren v. Dash, 30 N. Y. 393, 418.

83 3 P. Wms. 113; 3 Bro. C. C. 392; i Ves. & Bea. 385; 1 Jac. & Walk. I; 1 Russ. 517; Mowatt v. Carow, 7 Paige, at p. 332; Savage v. Burnham, 17 N. Y. at p. 575.

84 Allen v. Callow, 2 Ves. 289, cited, i Jarman on Wills, 297; and see Mowatt v. Carow, 7 Paige, p. 337.

85 See Jarman's note 8 to i Powell on Devises, 196.

86 Anderson v. Jackson, 16 Johns. 382; In re Maben's Estate, 12 N. Y. Supp. 5, 6.

The doctrine of lapse is sometimes invoked where a devise or legacy over is conditioned on the death of a prior devisee or legatee. But the solution of such cases, it is apprehended, depends more on the doctrine concerning conditions than on the doctrine of lapse, which applies strictly only to devises and legacies without condition. Certainly, by separating the old cases bearing on lapse of unconditional devises and legacies from those other cases bearing on conditional limitations, the arrangement of both classes is much simplified, and greater precision of reasoning is attained.

There may, of course, be cases on wills where the gift or devise is a conditional limitation in one event, and an absolute devise or bequest in the other. If the event happened, so that the first taker took absolutely, and not conditionally, and then such first taker died in the lifetime of the testator, the gift of course lapsed, and the conditional limitation over was out of the case and never could take effect in any event. Such seems to be the case of Calthorpe v. Gough, where £10,000 were given to trustees in trust for Lady Gough for life; and in case she should die in the lifetime of her husband, as she should appoint, and in default of her appointment to her children. But if she should survive her husband, then to her absolutely. She survived her husband, and died in the testator's lifetime. The Master of the Rolls held that the legacy lapsed, and the children were not entitled. 88 Lord Thurlow decided Doe v. Brabant on Calthorpe v. Gough.

Before the Revised Statutes and under the old doctrines of lapse the general rules were, that a lapsed legacy or bequest passed to the next of kin, 89 or if there was a residuary clause went into the residuary," but lapsed devises passed to the heirs-at-law and not


87 See Downing v. Marshall, 23 N. Y. at p. 370; Pimel v. Betjemann, 183 N. Y. at p. 198.

88 Cited 3 B. B. C. 395; Doe v. Brabant, 3 B. C. C. 393, 4 T. R. 703. Cf. Matter of Arensberg, 52 Misc. 261.

89 Riker v. Cornwall, 113 N. Y.

115, 127; Doane v. Mercantile Trust
Co., 160 id. 494, 499; Grinnell v.
Howland, 51 Misc. 132.

90 Matter of Woolley, 78 App. Div.
224 and cases there cited. Cf. Ward
v. Stanard, 82 id. at p. 390; Matter
of Whitting, 33 Misc. 274.

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