Majority
p. 583In the Matter of the Application of Mary G. Mulqueen for Construction of the Will of Michael J. Mulqueen, Deceased. Mary G. Mulqueen, as Executrix, Appellant; Carr Mulqueen, by Joseph W. Keller, His Special Guardian, Respondent. (Argued November 23, 1925; decided December 8, 1925.)
Headnote
Will — decedent’s estate — when child born subsequent to making of will entitled to share in estate as though testator died intestate — construction of will.Matter of Mulqueen, 213 App. Div. 637 , affirmed.
Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 8, 1925, which reversed a decree of the New York County Surrogate’s Court construing the will of Michael J. Mulqueen, deceased. The question was whether a child born subsequent to the making of the will was entitled to share in the estate of the decedent as though he had died intestate. The surrogate held that directions in the will for payment, under certain contingencies, of certain funds “ to my children equally ” and the use of the words “ him or her,” in referring to a surviving child in the event of the death of his only son living at the time of making the will evidenced that he had the possibility of additional children being born in mind. The Appellate Division held that the words “ my children ” are limited
p. 584
to the three named children and that the words “ him or her ” was a set or stereotyped expression used by the testator as such.
Henry W. Taft and Thomas B. Gilchrist for appellant.
Joseph W. Keller for respondent.
Order affirmed, with costs, payable out of estate, on opinion of Finch, J., below.
Concur: His cock, Ch. J., Cabdozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.