148 N.Y.S. 557 | N.Y. App. Div. | 1914
The only question which it is necessary to discuss upon this appeal is whether or not the plaintiff, Charles Yung, is entitled to an estate by curtesy in so much of the real estate sought to be partitioned as belongs to the infant defendant, Charles Francis Yung.
The question arises in this way: Charles Yung, the plaintiff, was the husband of Anna Louise Yung, who died March 12, 1908. She was seized at the time of her death of an undi
The will neither mentioned nor provided for the son, Charles Francis Yung’, nor was he provided for by any settlement Consequently, as is conceded by every one, he is entitled to succeed to the same portion of his parent’s real and personal estate as would have descended or been distributed to him if his parent had died intestate, that is to say, in the present case, to one-quarter of the real estate described in the complaint. Is the father entitled to an estate by the curtesy in the real estate thus passing* to the infant % In the first place it is quite clear that the infant takes by inheritance as heir at law, and not at all under the will or subject to any of its provisions. As to his share the will is annulled and the testatrix died intestate. (Smith v. Robertson, 89 N. Y. 555; Udell v. Stearns, 125 App. Div. 196; Herriot v. Prime, 155 N. Y. 5.) Tenancy by the curtesy is a life estate created by operation of law. It attaches to all the real property of which the wife was beneficially seized of an estate of Inheritance during’ coverture, provided a child is born of the marriage, born alive and capable of inheriting the property. (1 Reeves Beal Prop. § 446.)
Tn this State this right of curtesy can bo destroyed only in one of two ways, to wit, either by a conveyance of the property by the wife during her lifetime, or by a testamentary bequest of the real property to take effect after her death. If she fails to dispose of her real property in one of these two ways the right of curtesy still obtains. (Ransom v. Nichols, 22 N. Y.
Ingraham, P. J., McLaughlin, Dowling and Hotchkiss, JJ., concurred.
Judgment reversed and cause remitted to referee to make findings in accordance With opinion of this court, with costs to plaintiff and to guardian ad litem of infant defendant, Charles F. Yung, payable out of distributive sháre of said infant. Order to be settled on notice.