#### Edgar J. Stachelberg, as Executor, etc., of Charles G. Stachelberg, Deceased, Appellant, *v.*Linda S. Stachelberg, Individually and as Executrix, etc., of Charles G. Stachelberg, Deceased, Respondent, Impleaded with Malvina Stachelberg, Defendant, and Charles G. Stachelberg, Appellant.

First Department,

February 7, 1908.

Will construed — when posthumous children not provided for or mentioned— right of such child to distributive share.

A will which gives all the testator’s property to his wife absolutely, but provides-that in case of her death before the testator “leaving lawful issue her surviving,” the interest which the wife would take, if living, shall on the testator’s death go to such issue in equal portions, cannot be construed as mentioning or providing for posthumous children.

Hence, a child born after the death of the testator is, by virtue of the statute, entitled to succeed to the same portion of the estate as would have descended or have been distributed to it if the testator had died intestate.

Appeal'by the defendant, Charles -G. Staclielberg, by Emanuel Blumenstiel, his guardian ad litem, from an interlocutory judgment of the Supreme Court in favor of the defendant Linda S.- Staohelberg, entered in the office of the clerk of the county of Mew York on the ■ 2till -day of September, 1907, upon the decision of the court rendered after a trial at the Mew York Special Term.

Also an appeal by the plaintiff, Edgar J. Staclielberg, as executor, etc;, from so much of said judgment as directs a verdict .upon the merits jn favor of the defendant Linda S. Staclielberg, and provides that on the coming in of the referee’s report either part}' may move for final judgment in accordance with said interlocutory judgment.

*Louis Marshall,*for the plaintiff, appellant.

*Edwin Blumenstiel,*for the defendant, appellant.

*Charles E.*Liushmore, for the respondent.

Scott, J.:

The plaintiff and the infant defendant appeal from a final judgment sustaining a demurrer to the complaint. . The complaint *233shows that Charles G. Stachelberg died in the city of Hew York -on the 23d day of April, 1900, leaving a last will and testament which was duly admitted to probate. Iiis wife, the defendant Linda S. Stachelberg survived him. The infant defendant Charles G. Stachelberg, the son of the testator, Avas born after the death of the father and in December, 1900, and is the only issue of the marriage. By liis will the decedent left all of his estate to his Avife if she should survive him, and she has already received a considerable part of the principal and practically all of the income. The plaintiff, one of the executors of the will, alleges that he has been advised that the infant defendant was unprovided for by any settlement and neither provided for nor in any way.mentioned-in his father’s will, and is, therefore, entitled to succeed to the same portion of his father’s estate as Avould have been distributed to him had his father died intestate.

Plaintiff, therefore, asks for a construction of the will and an accounting by himself and his coexecutrix, Linda S. Stachelberg. The statute (2 R. S„ 65, § 49, as amd. by Laws of 1869, chap. 22; 3 Birdseye’s R. S. [3d ed..] 4021, § 1Y) reads as íoIIoavs : “ Whenever a testator shall .have a child born after the making of a last • will, either in the life-time or after the death of such testator-, and shall' die leaving such child, so after born, unprovided for' by any settlement, and neither provided for nor in any rvay mentioned in such will, every such child shall succeed to the same portion of such parent’s real and personal estate as would have descended or been distributed to such child if such parent had died intestate, and shall bé' entitled to recover the same portion from the devisees and legatees, in proportion to and out of the parts devised and bequeathed to them by such will.” There is no dispute as to the facts, the only question being whether or not the decedent’s posthumous child was provided for or in any way mentioned in his Avill. The 4th, 5th and 6th clauses of the will are the only ones having any bearing upon the question. The 4th clause gives all of the testator’s estate to his wife absolutely. The 5th clause provides that: “ In case of the death of my said Avife before me, leaving lawful issue her surviving, then upon my death the interest in my said estate which my said wife Avould be entitled to take if living shall belong to such issue in equal proportions.” The 6th clause provides that if his *234wife shall die before the testator, leaving no lawful issue her snr-' viving, his estate shall be divided in accordance with the provisions of the laws of the State of Mew York controlling and governing the division of the estates of intestates. It is obvious -that if the infant defendant was provided for, or in any way was mentioned in the will* such provision or mention must be'found in the 5th clause heretofore quoted in full.

Mention is certainly made of children in that clause, thus showing that the testator had in mind the possibility that he and his wife might have children, but the children there mentioned cannot be held to include a child born after the father’s death. The only.children in any way referred to are necessarily such as might be born in the testator’s lifetime, and who should survive both the father and mother. Mo mention of any children is-made except by way of provision for them, and no provision is made for any child unless the mother shall die before the father, and shall leave issue.. This necessarily excludes any child born after the father’s death. It is not sufficient that the will should show that the testator had in mind the possibility of children born after the making of the will. The child will take unless it is mentioned in some way or included in some class that is mentioned. If a testator provided that at -his death his property should go to his sons, it would clearly appear that he contemplated the possibility that he might havé children, but it would be -equally clear that any daughters he might have, born after the making of the will, would be in no way mentioned in the will. The case of *Wormser*v. *Croce,*recently decided by this court (120 App. Div. 287), is not analogous.' We found there a mention of afterborn children in the use of the word.“ family” which, as we ■ considered, included and applied to all the children whom the testator might leave, whether born before or after the making of the will. Reading the will in the presentíase and the statute together, we find ourselves forced .to the conclusion- that the infant defendant did not'-fall, within the class o.f children mentioned in the 5th clause of the will and was neither provided for nor mentioned therein, ■and is, therefore, entitled to succeed to the same portion of his father’s estate as would have been distributed to.him. had his father died intestate.

It follows that the judgment must-be reversed, with costs to. the *235plaintiff and the infant defendant payable out of the estate, and a decree entered in accordance with the prayer of the complaint.

Patterson, P. J., McLaughlin, Laughlin and Clarke, JJ. concurred.

Judgment reversed, with costs to plaintiff and infant defendant payable out of the estate, arid decree entered as directed in opinion. Settle order on notice.