Estate of Bunce — 15 N.Y. St. Rep. 415

Majority

p. 415

In the Estate of Caroline A. Bunce, Deceased.

(Surrogate’s Court, New York County,

Filed September 15, 1887.)

Headnote

1. Will—Revocation of—Effect of after born child—Probate of.

' Where a paper, offered as the last will and testament of a woman, made and executed before the birth of a child, makes no provision for such child and no mention of her, and where the decedent failed to provide therefor by settlement or otherwise. Reid, that these facts do not suffice to work its complete revocation. That the instrument in the absence of other objections must go to probate, even though none of its provisions except its appointment of an executor may be practically effective.

3. Same—Probate of—Necessary parties to.

This decedent died an unmarried woman. Shortly before her death and after the execution of her alleged will she gave birth to a daughter. In proceedings to probate the will of decedent, this daughter was entitled to appear and to oppose the probate of the paper propounded.

W. JR. Spooner, for proponent; John JD. Ahrens, special guardian.

This decedent died an unmarried woman, in February, 1886. In December, 1885, she had executed .a written instrument, which has lately been propounded for probate as her last will and testament.

Shortly before her death, and after the execution of this paper, she gave birth to a daughter. This daughter would be entitled under our statutes, in the event of decedent’s intestacy, to succeed to her entire estate, and has, therefore, a right to appear in the present proceeding and. to ■oppose probate of the paper propounded as her mother’s will.

Such opposition is made in her behalf: it is claimed that as the disputed paper makes no provision for the child, and no mention of her, and, as the decedent failed to provide for her by settlement or otherwise, the alleged will must be rejected and set at naught as of course, even though it

p. 416

may have been duly executed by a free and competent testatrix.

This claim is not well founded. Assuming, for present purposes, that by force of chapter 547 of the Laws of 1855, this contestant has precisely the same rights that would be hers were she the offspring of her mother’s lawful marriage (and upon this point I do not now intimate any opinion), it is nevertheless true that if the alleged will of 1885 was duly executed, the circumstances which the special guardian of the infant has set up in his objections have not sufficed to work its complete revocation.

• Despite those circumstances, the instrument, in the absence of other objections must go to probate, even though none of its provisions, except the appointment of an executor, may be practically effective. Estate of Joseph Gall, 7 N. Y. State Rep., 760.

Ho proofs of its execution have yet been taken. It is manifest, therefore, that no determination respecting its validity, construction and effect can now be had. When such proofs shall have been submitted, the claims of the illegitimate child of the decedent may again be called to my attention.