1 Misc. 2d 451 | N.Y. Sur. Ct. | 1955
In this probate proceeding, the Special Guardian has submitted a report setting forth that his ward is entitled to her intestate share as an after-born child. The executrix contends that the testator made a “settlement ” for all of his children including the after-born child.
The decedent left insurance policies totaling $107,588.78, some of which antedate the execution of the will and some are dated after the birth of Nancy Margaret. One of these was payable to decedent’s then surviving children of whom Nancy Margaret was one. Some policies make his daughter Nancy Margaret, as well as the other children, contingently interested on the death of their mother. Other policies were payable to decedent’s wife, if surviving, or otherwise to the children surviving the decedent and his wife.
Section 26 of the Decedent Estate Law provides: ‘ ‘ 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, and neither provided for, 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. ’ ’
A leading case on this subject is Matter of Faber (305 N. Y. 200), in which case the court stated (pp. 203-204), “ The legislature attempted neither to entail estates in favor of after-born children nor to shield them from intentional disinheritance or unequal treatment. Its sole objective was to assure that if, through oversight, they were neglected in the will, other provision would be made for them. The legislature did not choose, and has not chosen, to specify the character or content of the essential ‘ settlement ’ or to prescribe any definite yardstick for determining whether one has been effected. Accordingly, it is the fact situation in each case that must be considered and appraised, with a view to determining whether the parent intended a given out-of-will provision to serve the purpose of a ‘ settlement ’ under section 26. The touchstone is intent, and no court can decree in advance the essential factors upon which a particular testator’s intention may be predicated.”
The “ settlement ” may be effected at any time. (Matter of Stone, 200 Misc. 639.) It need not assume any particular form and may be the payment of proceeds from policies of life insurance (Matter of Schwabacher, 202 Misc. 15) and it may be contingent, payable upon the child’s surviving someone other than the testator (Matter of Schwabacher, supra; Matter of Kirk, 191 Misc. 473).
The court is of the opinion that the testator made a “settlement ” for all of his children including Nancy Margaret Smith, the after-born child, and he intended her share of the insurance proceeds to constitute her sole receipt at his death.
Enter decree.