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Obecny v. Goetz

134 A.D. 166 Court Second Department, Decision date 1909-10-08 English

Delivered by Gaynor, J.:

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p. 166
Barbara Obecny, Respondent, v. Kunigunda Goetz, Appellant, Impleaded with Victor Obecny, Defendant.
Second Department,
October 8, 1909.

Headnote

Will — children bom after will made by mother — Laws 1869, chapter 22, retroactive.
Chapter 22 of the Laws of 1869, which amended section 49 of the Statute of Wills by making it apply to wills of mothers as well as of fathers, is retroactive and, applies to wills made before its passage, if the estate had not already vested by the death of the testatrix.
Appeal by the defendant, Kunigunda Goetz, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30th day of October, 1908, upon the decision of the court rendered after a trial at the Kings County Special Term in an action for the partition of real property.
Louis J. Altkrug, for the appellant.
Louis J. Halbert, Jr., for the respondent.

The plaintiff has no case unless section 49 of what was called the statute of wills, which lets in children born after the making of a parent’s will, applies to the will of her mother, who made her will in 1860 and died in 1876. The plaintiff, and two other children, were born after the will was made. • It is urged for the appealing defendant that the said statute does not apply to wills made before it was passed, as is the case here. It ivas amended ..in 1869 to apply

p. 167
to the wills of mothers as well as of fathers, and therefore does not apply to this mother’s will if the appellant be correct. The statute was meant to regulate succession to the property of decedents in all cases of after-born children, whether in the case of wills then existing or afterwards to be made. There is no vested interest in the way of construing it contrary to the legislative intention, for nothing vests under a will until it takes effect, i. e., by the death of the testator. There is no controlling decision on the subject.

The judgment should be affirmed.

Hirschberg, P. J., Rich and Hiller, JJ., concurred; Burr, J., concurred on authority of Obecny v. Goetz ( 116 App. Div. 807 ).

Judgment affirmed, with costs.

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