Holbrook v. Holbrook

Headnote

Decedent’s estate — posthumous child — action to partition estate on ground that will made no provision for posthumous child.

Holbrook v. Holbrook, 193 App. Div. 286 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered July 27, 1920, which reversed an order of Special Term overruling demurrers to the complaint and sustained said demurrers. The action is brought by plaintiff, a posthumous child, to partition certain real property of which her father died seized, on the ground that she had been “ unprovided for by any settlement and neither provided for, nor in any way mentioned" ” in her father’s will and, therefore, under section 26 of the Decedent Estate Law, inherited. The father’s will provided: “ Fourth. All the rest, residue and remainder of my estate, both real and personal, of which I may be seized or possessed, or to which I 'may in any manner be entitled, I give, devise and bequeath to my wife Elizabeth M. Holbrook absolutely and forever, but if she should die before me and I should leave lawful issue then I give, devise and bequeath all my said residuary estate to my said issue per stirpes and not per capita, but if my said wife should die before me and

I should not leave any lawful issue me surviving, then I give, devise and bequeath my said residuary estate in equal shares to my surviving brothers and sister, the lawful issue of any deceased brother or of my sister to take the share per stirpes to which the parent would have been entitled if living.” The Appellate Division held that the words “ and I should leave lawful issue ” included a posthumous child.

The following question was certified: “ Does the complaint herein state facts sufficient to constitute a cause of action? ”