Obecny v. Goetz

The action is partition, and the appeal is by the defendant from the interlocutory judgment therein. In 1857 Annah Dehnert owned the premises in fee. In 1860 she executed her will, devising all of her estate absolutely to the husband, Peter Dehnert. In 1876 Annah died, survived by her said husband and four children, of whom three were born after the execution of her said will. In 1877 the will was probated, and the testator’s husband, Peter, entered into pos.session of the premises and held them until 1880, when he conveyed them to Miller, who in 1881 conveyed them to the defendant, Goetz: In 1903 the plaintiff, one of the children of Annah and Peter Dehnert born after the execution of her mother’s will, began this action. The learned Special Term in its interlocutory judgment decides inter alia that each of the children of Annah Dehnert, including the plaintiff, born after the execution of the will, became seised Of an undivided one-fourth interest in the premises subject to curtesy. The ground of such decision is that the will was made inoperative as to the children of the testator born after the execution of her will perforce of the statute. If the testator had died before 1869, then this question must be decided adversely to the plaintiff for the reason that the statute then applied to the will of a father only. Cotheal v. Cotheal, 40 N. Y. 405 . The statute (section 49 of article 3 of title 1 of chapter 6 of part 2 .of the Revised Statutes [1st Ed.]) was amended by chapter 22, p. 10, of the Laws of 1869, by substituting the word' “parent” in place of the word “father.” • ;

As a will is ambulatory, the general rule is that it must be considered upon the law as it exists at the time of the death of the testator. Bishop v. Bishop, 4 Hill, 138 ; De Peyster v. Clendining, 8 Paige, 304, affirmed 26 Wend. 21 ; Parker v. Bogardus, 5 N. Y. 309 ; Moultrie v. Hunt, 23 N. Y. 394 ; People v. Powers, 147 N. Y. 104 , 41 N. E. 432 , 35 L. R. A. 502 ; Schouler on Wills, § 11. Hence as- section 49 was amended in 1869 so as to apply to either a father or a mother, and the testator did not die until 1876, the section applies to the-will of this testator, unless the will was excluded 'from its purview by some other statute. The learned counsel for the appellant insists that 'such a saving statute is found in 3 Rev. St. (5th Ed.) p. 153, pt. 2, c. 6, tit. 1, § 93 (70) : ,

“The provisions of this title shall not be construed to impair the,-validity of the execution of any will made before this chapter shall, taire effect,' or to affect the construction of any such will.” ' _ . ' , ■) ' '

The section also appears in 3 Rev. St. 1875 (Banks & Bros. 6th Ed.) p. 72, pt. 2, c. 6, tit. 1, § 102, and 3 Rev. St. 1882 (Banks &

“In England a court of equity or common law, as the case may be, is called ‘the Court of Construction’ with regard to wills, as opposed to the Court of Probate, whose duty is to decide whether an instrument be a will at all. Now, the Court- of Probate may decide that a given instrument is a will, and yet the Court of Construction may decide that it has no operation by reason of perpetuities, illegality, or uncertainty.” Rapelye v. Lawrence, Law Dict. vol. 1, p. 273. In Bishop v. Bishop, supra, the will was made in 1825, and the testator died in 1840. The court held that contrary to the law in 1825 and perforce of the statute of 1830 a devise went to the heir at law of the devisee, and put aside a saving clause exactly similar to that now invoked by the appellant, with the comment that it only went to the execution and construction. In De Peyster v. Clendining, supra, the court held that perforce of the then forty-seventh section,, enacted subsequent to the making of the will, but in existence long before the time of the death of the testator,. the trust recognized at the time of the making of the will was turned into a legal estate in the beneficiary. The point was made that this saving provision (then section 70, 2 Rev. St. [1st Ed.] pt. 2, c. 6, tit. 2) -applied, but the chancellor said the provision as to not affecting the construction was not broad enough.

The learned counsel for the appellant relies upon Parker v. Bogardus, supra. I think that it does not apply. The court decided in that case that section 5 of the Revised Statutes, which was not enacted at

“The case of Bishop v. Bishop, 4 Hill, 138 , decided that section 52 (2 Rev. St [1st Ed.] pt. 2, c. 6, tit. 1) of the title, in relation to wills and testaments, applied to wills made before the adoption of the Revised Statutes, where the testator died after those statutes took effect. But there the son and heir at law of the devisee, who died in the lifetime of the testator, did not take under the will, but as special heir under the law. And the question was not one of construction, but, if it was, the decision was erroneous, and cannot be regarded as authority here.”

Then immediately follows this sentence: “The same remarks are applicable to section 49, which relates to an after-born child”—i. e., the remarks which the court had just made with reference to Bishop v. Bishop. Hence the court meant to say that under section 49 the child did not take under the will, but as special heir under the law, and the question was not one of construction, with the reservation that, if it was, the decision in Bishop v. Bishop was not authority. The entire will is not revoked, but made inoperative as to that part of the estate which in case of intestacy of the testator would have descended or have been distributed to the after-born children. Smith v. Robertson, 89 N. Y. 555 ; Matter of Murphy, 144 N. Y. 557 , 561, 39 N. E. 691 . In Smith v. Robertson, supra, it was held that such a child might maintain ejectment, and upon the reasoning and force of that decision I think it clear that she can maintain this action.

There is no proof or finding that the testator died leaving the plaintiff "unprovided for by any settlement.” This fact must appear before the statute applies. The policy of the statute is provision for such a child who is thus unprovided for outside of the will, and neither provided for nor in any way mentioned in the will, not for such a child who may have been provided for by a settlement, and yet is not provided for or is not in any way mentioned in the will; for, of course, the parent might have made fair and just provision for the child outside of any testamentary provision. Matter of Huiell, 6 Dem. Sur. 354.

' “Every case of the kind must be determined upon its own facts and surroundings, and those may occur in. which such an allowance would be unjust and inequitable.”

. The judgment must, therefore, be reversed and a new trial granted, costs to abide the final award of costs. All concur.