103 Misc. 618 | N.Y. Sur. Ct. | 1918
The testatrix gave more than one-half of her estate to charitable corporations. She was not survived by a husband, parent or child. She was, however, survived by a grandchild, and the special guardian of the grandchild contends that so much of the bequest to charitable organizations as exceeds one-half of her estate is invalid. The contention necessitates a determination of the question whether the word “ child ” in section 17 of the Decedent Estate Law includes grandchild.
I have been unable to find an authoritative decision on this question. All the cases hold that the only person who can invoke the application of the statute is one who would be benefited by its enforcement (Amherst College v. Ritch, 151 N. Y. 334; Decker v. Vreeland, 220 id. 326); therefore a grandchild could not, during the life of his parent, take advantage of the statute. There does not seem to be any good reason why the death of his parent should give him any additional rights in this respect. While a grandchild may be the natural object of his grandparent’s bounty to practically the same extent as the parent of such child, the statutes do not recognize that natural right of the grandchild or obligation of the grandparent; for if a person dies intestate, leaving children and grandchildren, the latter do not participate in the estate unless their parent (the child of the intestate) is dead, and then only as the representatives of the deceased parent. I am inclined to think, therefore, that the word “ child ’’ in section 17 of the Decedent Estate Law was not intended by the legislature to
Decreed accordingly.