McLean v. McLean

137 N.Y.S. 341 | N.Y. App. Div. | 1912

Thomas, J.:

The action involves the title of two parcels of land in Brooklyn, the first on Sixth avenue, the second on Pacific street. I will first consider the second parcel. Maher devised it to his wife during her widowhood,.and added, “but if my said wife should die during the life time of my child or children, the said property hereby left to her shall revert and be divided between my two children, John and Katie Maher, and should any or either; of these children die, the portion belonging to such deceased child shall revert to the next of kin. ” The wife died in 1899, and both children before her.' Hence, nothing came to either child by the happening of the first condition named, viz., death of the wife before him or her. The second condition happened, that is, both children, first John, then Katie, died, and that, too, before the wife. Where did the property go ? Did it go to John and Katie by implication, by descent, or to the “next of kin” of the child dying? I think the general rule “dying before the testator.” should, apply. Whatever alternative prevails, Katie took the property. The' court has found that Katie and John took under the will and the • former inherited . John’s one-half. Let it be so. Katie made a will whereby she gave the. remainder to her children surviving her husband, life tenant. She had two children, Marie and Henry, Second. The former one survived the life tenant and took the remainder, and the plaintiff, who was her half-brother, inherited nothing from her, as the land came from her ancestor. Justice Clarke proceeds on the theory that Henry, Second, not surviving the fife tenant, Dr. McLean took one-half and that Marie inherited this from him, and that plaintiff could take it, I think that this is in clear violation of the very words of . the will. The first parcel belonged to Katie and went under her will to Marie to the exclusion of Henry, Second. Hence, plaintiff is excluded from that. But it is urged that Henry, Second, was born after Katie’s will was made, and the question is whether provision was made for him. If not, he took one-half of the land under the statute (Decedent Estate Law, § 26) and died; Marie inherited from him, and plaintiff inherits that one-half from Marie. Was Henry, Second, “provided for” or “in any way mentioned” in Katie’s will? He was not individualized, and, if that be necessary, he was neither mentioned nor provided for. But, upon his birth, he came under the word “issue,” and was vested with an undivided half of his mother’s estate, subject to being divested thereof by his death before his father, so that provision was made for him in the class that would take it. Hence, the case is similar to that of Minot v. Minot (17 App. Div. 521). (See, also, Wormser v. Croce, 120 App. Div. 287-290; Stachelberg v. Stachelberg, 124 id. 232; affd., 192 N. Y. 576; Tavshanjian v. Abbott, 200 id. 374.) Therefore, as he was mentioned and provided for in his mother’s will, and took a vested estate, which he lost by not surviving her, his sister Marie inherited nothing from him; hence the plaintiff can inherit nothing from her. As to parcel No. 1, the result is the same, for that land belonged to Mrs. McLean, and passed under her will to her husband for life, with remainder to Marie and Henry, Second, and Henry, Second, dying, Marie took the whole under the will, and, as the plaintiff is not of the blood, he takes nothing.

The judgment should be reversed and the defendants have judgment on the demurrer, with costs.

Jenks, P. J., Carr, Woodward and Rich, JJ., concurred,

' Interlocutory judgment reversed and judgment ordered for defendants upon the demurrer, with costs.