100 N.Y.S. 623 | N.Y. Sur. Ct. | 1906
Section 43, part 2, chap. 6, title 1 of the Revised Statutes provides: “ If after the making of any will, disposing of the whole estate of the testator, such testator shall marry, and have issue of such marriage, bom either in his lifetime or after his death, and the wife or the issue of such marriage shall be living at the death of the testator, such will shall be deemed revoked, unless provision shall have been made for such issue by some settlement or unless such issue shall be provided for in the will, or in such way mentioned therein as to show an intention not to make such provision, and no other evidence to rebut the presumption of such revocation shall be received.” 3 Gumming & Gilbert’s Gen’l Laws, 4466. It is claimed by the proponent that, notwithstanding all the other conditions prescribed by the statute as necessary to effect a revocation of a will exist in the present case, two of the legatees having died after the execution of the will and during the lifetime of the testator, the will did not dispose of his whole estate within the meaning of the statute mentioned, although on its face it purported to do so, and that, therefore, the present is not a case provided for by the statute, and the will should be held to remain unrevoked. The provisions of the statute cited are based upon and but formulate and adopt the rule laid down by the previous decisions of our own courts and those of the Eng-
Probate refused.