14 N.Y.S. 659 | N.Y. Sup. Ct. | 1891
This action is brought by the guardian of the person and property of an illegitimate child. The plaintiff was appointed tutor of that child under the laws of the state of Louisiana, by competent judicial authority; and ancillary letters of guardianship were issued to him by the surrogate of the county of 27ew York. The first question arising is as to the legal capacity of the plaintiff to sue in his relation of guardian, and the point is made that the action can only be maintained by the child itself through a guardian ad litem. The usual way of seeking to enforce the rights of an infant by action is, of course, through the intervention of a responsible person as guardian ad litem-, but there is a special provision of law, viz., section 2840 of the Code of Civil Procedure, which authorizes a guardian appointed in a foreign state, and who receives ancillary letters in this state, to maintain or" defend any action or special proceeding respecting the personal estate of his
What rights, then, belong to this illegitimate child? The mother of. the child, some time before its birth, made a will. Afterwards she went-to New Orleans, and the plaintiff’s ward was born. The mother died two-days after the birth of the child. The will was presented to the surrogate of the county of New York, and by him admitted to probate; and it appears that on the probate proceeding the infant was represented by a special guardian. It does not appear that the particular point now presented was. decided on that proceeding. On the contrary, it is plain from the opinion of the learned surrogate (6 Dem. Sur. 278) that he held that even the circumstances set up by the special guardian could not defeat probate, for they did not work a complete revocation of the will. None of its provisions might be-, operative, except those relating to the appointment of an executor, and therefore the rights of the child were not necessarily involved in that particular proceeding, and no binding adjudication was made respecting them. What is ordinarily before a surrogate on probate proceedings relates to the factum of the will alone, although by section 11 of the act of 1870, the surrogate of the county of New York is given additional judicial power in such proceedings; but I am satisfiéd that there was nothing whatever decided or necessarily involved in the proceeding referred to which constitutes an estoppel' against this plaintiff. We áre thus brought to the consideration of the important subject discussed in the case, and And that it is asked that the will be declared to be inoperative, ineffectual, null, and void, and that it be revoked; and further, that it be judicially declared that the plaintiff’s ward is entitled to all the property left by her deceased mother. It is not necessary that probate be revoked to enable the plaintiff to obtain full and appropriate relief. All the property is personal property, (as wás stated and admitted on the trial,) and is in possession of the executor. The plaintiff’s claim is made under the act of 1855, c. 547, which provides as follows: “Illegitimate children, in default of lawful issue, may inherit real and personal property from their mother as if legitimate;” and then follows a provision which has no application here. By virtue of this statute it seems to be quite clear that the ward of the plaintiff would be entitled to succeed to the estate of her mother if the mother had died intestate, and the question, therefore, is whether the child is entitled to the personal property in view of the fact that a will was made by the mother before the birth of the child, and has been duly admitted to probate. It is provided by chapter 22 of the laws of 1869 that “whenever a testator -shall have a child born after the making of a last will, either-in the life-time or after the death of such testator, and shall die leaving such child so after-born unprovided for by any settlement, nor 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.” Does this act of 1869 apply to illegitimate children,- so far as the mother’s estate is concerned? I can see no reason why it should not, when nothing is involved except the mother’s property. The act of 1855 gives heritable rights in the mother’s estate to the illegitimate child precisely as if it were legitimate. The act of 1869 gives to a child born after the making of a will the right to participate-in its parent’s estate. The language of the act is broad enough to cover the case of the plaintiff’s ward, and if by the act of 1855 the right to inherit is-given to the illegitimate child, (there being no legitimate issue,) there seems to be no ground upon which a discrimination should be made to defeat the concession the law has granted in favor of such a child. As has been well