#### Charles Yung, Appellant, Respondent, *v.*Anna May Blake and Others, Respondents, Appellants.

First Department,

July 10, 1914.

Will — interest of child born after execution of will and not provided for therein — curtesy.

Where a wife executes a will devising all her property to two children of a former marriage and without providing for future issue, a child subsequently born is entitled to succeed to the same portion of his mother’s real and personal property as would have descended or been distributed to him if she had died intestate; he takes this interest by inheritance as an heir at law, and his father is entitled to a tenancy by curtesy in so much of the real estate as descends to him.

Appeal by the defendants, Anna May Blake and others, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 9 th day of December, 1913, upon the report of a referee in an action for the partition of real property.

Appeal by the plaintiff, Charles Yung, and the defendant, Charles Francis Yung, from parts of said judgment.

*Edward J. McCabe,*for the plaintiff, appellant.

*Edward J. McGuire,*for the appellant Blake.

*A. Wheeler Palmer,*for the appellant, respondent, Charles Francis Yung.

*Edward H. Kelly,*for the appellants, respondents, Charles Yung and Joseph A. Macpeak.

Scott, J.:

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*502vided one-half interest in the real estate described in the complaint, as tenant in common with her husband. She had previously been married to one Blake, by whom she had two children, named Marguerite and Anna May Blake. By plaintiff she had one child, the infant defendant, Charles Francis Yung. By her will, executed before the birth of her last-named child, and, indeed, before her marriage to plaintiff, she left all of her estate to her executors in trust for her daughters during their minority, with the proviso that if either daughter predeceased her the whole property should be held by the executors in trust for the surviving daughter, to be paid over to her at her majority. One of these daughters, Marguerite, did die before her mother, leaving as the sole legatee under the will Arma May Blake, one of the defendants.

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. *503110; *Hatfield*v. *Sneden,*54 id. 280.) If, then, the will of the testatrix was, by the birth of her son after the will was made, annulled or revoked *pro tanto*as to his share of the estate, as all the authorities hold, and he takes that share not as legatee but as heir at law by descent, it follows that as to that portion of the estate the testatrix made no valid testamentary disposition, and, consequently, did not cut off or destroy her husband’s right to a tenancy by the curtesy. The plaintiff is, therefore, entitled to a tenancy by curtesy in so much of the real estate as descends to the infant defendant, Charles Francis Yung. In this regard the judgment appealed from is erroneous and must be reversed. With regard to the other findings of the referee, which have been adopted by the Special Term, but which are questioned on this appeal, we find no error. Our conclusion as to the right of plaintiff to an estate by the curtesy will, however, require a different disposition to be made as to the rents collected by the trustees from the share or interest of the infant, Charles Francis Yung. It may also be necessary to estimate the value of the life estate of said plaintiff. The judgment appealed from must, therefore, be reversed and the cause remitted to the referee to make the findings rendered necessary by this opinion, with costs and disbursements of this appeal to the plaintiff and to the guardian *ad litem*of the infant defendant, Charles Francis Yung, payable out of the distributive share of said infant.

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.