Estate of Huiell — 15 N.Y. St. Rep. 715

Majority

p. 715

In the Estate of Augusta C. Huiell, deceased.

(Surrogate’s Court, New York County,

Filed December 21, 1887.)

Headnote

1. Well—After-born children—Rights of.

The provision of the statute that whenever a testator shall have a child born after the making of the last will, * * * and shall die leaving such child unprovided for by any settlement, etc., every such child shall succeed to the same portion of such parent’s real and personal estate as would have descended to such child if the parent had died intestate, etc., as amended by Laws 1869, chapter 23, is applicable to the estates of testatrices no less than to estates of testators.

2. Same—Burden of proof—Jurisdiction of surrogate.

The fact that said after-born child was left unprovided for must be proved, and the surrogate has jurisdiction to determine that question.

John De Witt Warner, special guardian of Florence G-. Huiell;- John V. Huiell, executor, in person.

—Section 49 of title 1, chapter 6, part 2 of the Revised Statutes, 3 Banks (7th ed.) 2289, provides that “whenever a testator shall have a child born after the making of the last will, either in the life-time of or after the death of such testator, and shall die, leaving such child, so after born, unprovided for by any settlement, and neither provided for in any way mentioned in such will, every such child shall succeed to the same portion of such parent’s real and personal estate, as would have descended or been distributed to such child if such parent had died intestate, and shall be entitled to recover the same portion from the devisees and legatees, in proportion to, and out of the parts devised and bequeathed to them by such will.”

There is no doubt that this provision, as amended by chapter 22 of the Laws of 1869, is applicable to the estates of testatrices, no less than to estates of testators.

This decedent left her surviving two children, one of whom, Florence by name, was born after the making of the paper propounded for probate as the mother’s will. That paper makes no provision in Florence’s behalf, nor any mention of her name. This circumstance, though coupled with the fact, if it be a fact, that Florence was left by her mother ‘ ‘ unprovided for by any settlement,” affords no valid grounds of objection to the probate of the paper here propounded. Matter of Gall, 5 Dem., 374 ; Estate of Caroline A. Bunce, 6 Surr. Dec., 488.

No proofs have been submitted upon the question whether or not the decedent made any settlement upon the child whose rights are now the subject of consideration. There can be no doubt, I think, that the surrogate has jurisdiction to determine that question, in view of the fact that upon its determination depends the further question whether Florence had any status to contest this alleged will. _ If it shall be ascertained that within the meaning of section 49 (supra), a “ settlement ” was, in fact, made for her or for her benefit, then she is not, by virtue of that section, entitled to the share in her mother’s estate which would have been hers in case of her mother’s intestacy, and is entitled, therefore, to oppose probate of this alleged will upon any grounds affecting its legality and validity.