Udell v. Stearns

Gaynor, J.: 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, [198] 155 id. 8; Matter of Murphy, 144 id. 557; Luce v. Burchard, 78 Hnn, 537). Section 1868 of the Code of Civil Procedure also recognizes that such after-born children succeed to their share of the realty as if there had been an entire intestacy, and authorizes them to maintain an action of partition. The argument of the learned counsel for the defendants that it is permissible to spell out of the will itself, coupled with the fact that the testator did not make a new one, and the presumption that every one knows the law, an intention by him to leave his after-born children, the same as his children in being when he made his will, nothing, goes down before the words of the statute and the decisions under .it. To thus ascertain the intention of the testator,.and give force to it, would nullify the statute. It may well be that the statute should be amended so as not to apply to a will by which one spouse leaves all of his property to the other spouse, but we have to accept it as it now is. 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.