109 N.Y.S. 407 | N.Y. App. Div. | 1908
Lead Opinion
The two after-born children succeeded as heirs, each to an undivided one-fourth of the land of the testator upon- -his death, for it was provided by the Revised Statutes that whenever a testator should have a child born after the making of his will, either during his life or after his death, such child should “succeed” to the same portion of the testator’s real and personal estate as would have “descended or been distributed” to him if the testator liad died intestate; provided (as is the case here) such child were left “ unprovided for by any settlement, and neither provided for nor in any way mentioned in such will ” (2 R. S. p. 65, sec. 49, as amended by ch. 22, Laws of 1869; Smith v, Robertson, 89 N. Y, 555; Herriot v, Prime,
As neither adverse possession nor the statute of limitations is pleaded as a defense, they are not to be considered, and as there was no actual possession by the defendants or their predecessors in title, the conveyances of the two 'after-born children and their grantees could not be void for champerty, for, by the terms of the statute the possession of the person claiming under a title adverse to that of the grantor must be “ actual ”, not merely constructive, to make such grantor’s deed void (1 E. S. p. 739, sec. 147; Dawley v. Brown, 79 N. Y. 390; Saunders v. N. Y. C. & H. R. R. R. Co., 135 id. 613).
The judgment should be affirmed.
Jenks, Hooker and Miller, JJ., concurred ; Eich, J., read for reversal.
Dissenting Opinion
I dissent, and must state the facts as I understand them.
In 1877 one Edward G. Wilder, the father of the plaintiff’s grantors, became the owner in fee of the premises sought to be partitioned. On July 30, 1874, he made his will, .in and by which he gave, devised and bequeathed all of his property, real and personal, to his wife, Sophia A. Wilder. At the time this will was executed the testator had two children living, and his wife was pregnant, and gave birth to g child (Florence A. Wilder, one of plaintiff’s grant
The testator in the case at bar did know that there was to be at least one after-born child for his wife was with child and within twenty-six days of confinement when the will was made, and he must be presumed to have had this child in mind. He had two living children, minors, whom he was legally bound to support and with whom his relations are shown to have been kindly, whom he knowingly disinherited and who are debarred from participation in his estate, even if the subsequent-born sisters are held to be entitled thereto. The mother was the natural guardian of her infant children after the death of her husband and without means or ability to support and care for them. I think it plainly appears and certainly it can be “ reasonably presumed ” from the facts within the knowledge of the testator at the time he made his will and from the provisions of the will itself, that he had his after-born children in mind and intended to place them on the same level with his living children, and that within the meaning of the statute he “ provided ” for them by devising his property to his “ beloved wife,” their mother and natural guardian, after his death (in this respect the case at bar is distinguishable from Obecny v. Goetz, 116 App. Div. 807), with whom and his children he was living happily, with the knowledge that she would use the property he devised her for the maintenance, support and education of his after-born as well as living children, and this presumption is supported by the fact that the mother did support and maintain with the avails of the property given her (for she had no other) these two after-born children, not only until they became of age, but until they were married at the ages respectively of twenty-five and twenty-two years. This presumption is further strengthened by the fact that although the father lived more than six years after the birth of the child first born after the will was made and more than three years after the birth of the youngest child, and must be presumed to have known that by the terms of his will they would take no part of his estate, he did not see fit to change his will or indicate in any manner an intention or a desire that they should inherit any portion of his estate. I regard it as very inequitable and unjust to the children
I must vote for a reversal of the judgment.
Interlocutory judgment of the County Court of Kings county affirmed, with costs.