250 A.D. 762 | N.Y. App. Div. | 1937
Decree of the Surrogate’s Court, Kings county, adjudging that the last will and testament of Mary A. Guilmartin, deceased, is revoked and a nullity as to Helen Guilmartin, an adopted child, and that she is entitled to take in the same manner and to like extent as if testatrix had died intestate; and order denying motion to vacate and set aside the said decree on the ground of newly-discovered evidence and in the interests of justice, affirmed, without costs. The will, executed seven years before the adoption, made provision for “ my friend, Helen Nierychlewski, daughter of Teodor Nierychlewski;” and directed that no payments should be made to the father “ to the use of his said daughter.” After adoption no new will was drawn. We agree with the reasoning and conclusions expressed in the opinion of the learned surrogate (156 Misc. 699). Under a somewhat similar state of facts, a different conclusion was reached in another jurisdiction. (Bowdlear v. Bowdlear, 112 Mass. 184.) The development of the law in respect to adoption by statute and by the trend of judicial decision, inclines us to take a contrary view to that of the Massachusetts court in 1873. Lazansky, P. J., Hagarty, Davis and Johnston, JJ., concur; Close, J., dissents on authority of Bowdlear v. Bowdlear (supra).
