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In re Gall

7 N.Y. St. Rep. 760 Court N.Y. Sur. Ct. Decision date 1887-03-01 English

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p. 760
In the Estate of Joseph Gall, Deceased.
(Surrogate’s Court, County of New York,
Filed March 1, 1887.)

Headnote

1. "Will—Probate of—Objection to.
A will and a codicil thereto were offered for probate, the application for which was opposed by an infant child of the testator through her guardian, on the ground that the testator married after the making of the will, and that she was a child of that marriage, and that the wiUlindertcok to dispose of the decedent’s entire estate, making no mention of her, and that the decedent had not provided for her apart from such alleged will by settlement or otherwise. Held, that the objection alleged might be so amended as to distinctly indicate whether the marriage took place before or after the execution of the codicil and that if such amendment should be made and it should be averred that the execution of the codicil preceded the marriage, the motion for probate should be denied, otherwise it should be granted.
& Same—Rights of child born of marriage entered into after execution of will—3 R. S . (7th ed.), 2386.
Held, that in case the execution of the codicil was previous to the marriage, the rights of the infant, if in truth the child of the decedent, should, be determined in accordance with 3 R. S (7th ed.), 2286.

I am asked to admit to probate two papers propounded as together constituting this decedent’s last will and testament, notwithstanding certain objections interposed in behalf of one Caroline Gall, an infant, who is claimed by her special guardian to be decedent’s posthumous child.

One of these objections challenges the jurisdiction of this court, but upon the affidavits and papers heretofore submitted I am convinced that it is not well taken. It must therefore be overruled.

In his only other objection the special guardian alleges that ‘ ‘ subsequent to the making of the said will ” the testator married one Amelia Steel; that said Amelia Steel thereafter gave birth to the infant, whom such special guardian here represents, and that such infant is issue of such marriage. It is further set forth in the second objection that the “said will” undertakes to dispose of the decedent’s entire estate; that it contains no provision for Such infant, and makes no mention of her; and that the decedent has not provided for her apart from such alleged will by setlement or otherwise.

• It is insisted by counsel for the proponent that if Caroline Gall is in truth the daughter of the decedent, born after the making of the will, she is entitled, by the express terms of the statute in such cases provided (sec. 49, title 1, chap. , 6, part 2, Rev. Stat; 2 Banks (7th ed.), 2287), to the same share in this estate which would be hers if her father had died intestate; that therefore she has no interest in this proceeding, but that she should be required to resort, after the probate of the will, to the remedies afforded by section 1868 of the Code of Civil Procedure.

Such is undoubtedly the situation of affairs if at the time the decedent executed the later of the two papers here in controversy he and Amelia Steel were husband and wife. If, however, their intermarriage occurred after such execution the rights of the infant Caroline Gall, if she is in truth the decedent’s daughter, are to be ascertained by reference to sec. 43, title 1 chap. 6, part 2, Rev. Stat., 3 Banks (7th ed), 2286.

That section provides that “if, after the making of any will disposing of the whole estate of the testator, such testator shall marry and have issue of such marriage, and the wife or issue of such marriage shall be hving at the death of the testator, such will shall be deemed revoked, uiiless provision shall have been made for such issue by some settlement, or unless such issue shall have been provided for in the will or in such way mentioned therein as to show an intention not to make such provision. And no

p. 762
other evidence to rebut the presumption of such revocation shall be received. ”

The special guardian’s objections do not distinctly indicate whether the marriage between the decedent and Amelia Steel is claimed to have taken place before the exe ■ cution of the codicil or after. They may be so amended as to contain a distinct allegation in this regard. If such amendment shall be made, and it shall be averred that the execution of the codicil preceded the marriage, the present motion in behalf of the proponent must be denied, otherwise it must be granted.