148 Misc. 318 | N.Y. Sur. Ct. | 1933
This is an application for construction of a will and for determination of the effect upon the provisions thereof of
The special guardian takes the position, first, that the insurance provision thus recited, even if valid is not a “ settlement ” within the meaning of section 26 of Decedent Estate Law, and second, that the insurance trust provisions are invalid because unduly suspending the absolute ownership of personal property.
The first objection raised by the special guardian requires consideration of the meaning of the words used in section 26 of Decedent Estate Law. That statute says that a child born after the making of a will and either in the lifetime or after the death of the testator shall succeed to an interest in testator’s estate as if the testator had died intestate, if testator “ shall die leaving such child so after-born, "unprovided for by any settlement, and neither provided for,nor in any way mentioned in such will.”
It is apparent from the text of the statute that the “ settlement ” referred to is sufficient if made by some provision for the child dehors the will. The language of the section clearly means that if provision for the after-born child is made by a “ settlement ” the right of intestate succession never accrues. It follows, necessarily, that the making of such provision by way of “ settlement ” permits and requires proof before the court of acts of a testator claimed to have effected such “ settlement ” and permits determination by the court whether the acts so proven constitute a provision by way of
u A bestowing or granting under legal sanction; the act of conferring anything in a formal and permanent manner.”
It is to be assumed, of course, that the word used in the statute has its ordinary meaning. That the quoted definition of the word is apt to describe the very arrangement here set up by testator needs no argument. The after-born children have been provided for by a “ settlement ” within the meaning of section 26 of Decedent Estate Law and if the provisions of that insurance trust are valid the will stands and no participation in decedent’s estate passes under the statute to the after-born children. The same conclusion has been reached in other Surrogates’ Courts. (Matter of Brant, 121 Misc. 102; Matter of Froeb, 143 id. 660.)
There is no substance to the objections to the validity of the trust agreement. The mere holding of the trust fund capital in solido does not alter the primary intention of the settlor of the trust to create a separate trust for each of his children. In each instance the trust created is measured by the life of the widow and of a single child. There is no unlawful suspension. (Leach v. Godwin, 198 N. Y. 35; Matter of Horner, 237 id. 489.)
The youngest child, Ferdinand, was bom June 8, 1928, less than two months after the creation of the insurance trust. While this child was en ventre sa mere at the date the trust instrument was signed, he was in being within the meaning of section 11 of the Personal Property Law. (Matter of McEwan, 202 App. Div. 50; affd., 234 N. Y. 557.)
Submit decree, on notice, in conformity with the foregoing.