#### Matter of the Probate of a Paper Writing Purporting to be the Last Will and Testament of Albert C. Bostwick, Deceased.

(Surrogate’s Court, Westchester County,

December, 1912.)

Decedent Estate Law, § 26—'rights of after-born children not mentioned in will of testator.

The phrase “unprovided for by any settlement” in section 26 of the Decedent Estate Law, relating to the rights of a child born to a testator after he had made,his will, means a settlement made by the testator.

Where after-born children of a testator were neither mentioned in his will nor provided for by any settlement made by the testator, the decree admitting the will to probate should make the same provision for the said children as they would have been entitled to had their father died intestate.

Proceedings upon probate of a will.

Holmes, Kapallo & Kennedy, for petitioner.

Jacob Halstead, for Marie S. Bostwick.

Burton 0. Meighan, special guardian of the infants Dorothy S. Bostwick, Albert C. Bostwick, Jr., Lillian S. Bostwick, Dunbar W. Bostwick and George H. Bostwick.

Millard, S.

This is a proceeding for the probate of the last will and testament of Albert 0. Bostwick, deceased, who died on the 10th of Hovember, 1911, seized and possessed of real and personal property.

By the terms of said will, which was duly made and executed on the 8th of June, 1899, after the payment of debts, he gave, devised and bequeathed all the rest, residue and remainder of his property, of every kind and description, to his wife, Marie S. Bostwick, absolutely.

At the time of his death be left him surviving his widow and his children Dorothy S. Bostwick, born on the-26th of *696March, 1899, Albert C. Bostwiek, Jr., born April 1, 1901, Lillian S. Bostwiek, born July 9, 1906, Dunbar W. Bostwick, horn January 10, 1908, and George H. Bostwiek, born August 14, 1909. From this statement it appears that four of the children above referred to were born after the making and execution of the will sought to he probated.

The special guardian, while not objecting to the probate of the will, claims that it should be provided in the decree that the four after-born children are entitled to the same rights in the estate of the said Albert O. Bostwiek, deceased, that they would have had if no will had been made. He makes this claim because of section 26 of the Decedent Estate Law, which reads as follows:

*“*Sec. 26. Child born after making will.-— Whenever a testator shall have a child horn after the making of a last will, either in the lifetime 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 way. 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 be 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.”

It is conceded by all parties that no mention is made of these children in the will and the only question raised is whether or not there was a settlement otherwise made, which would satisfy the provisions of the statute.

Albert C. Bostwiek was the son of Jahez A. Bostwiek and Helen C. Bostwiek. In the months of August and September, 1890, Jahez A. Bostwiek made, executed and delivered certain trust deeds to the Farmers’ Loan and Trust Company and the United States Trust Company, by the terms of which the said Albert C. Bostwiek (the testator herein) was to receive the income arising therefrom during the term of his life, and upon his death the principal fund so held was to be paid over to his issue, share and. share alike, absolutely.

*697Jabez A. Bostwick died August 16, 1892, and these trust deeds were in full force and effect as no one other than he had any power to change them at the time of the making of the will of Albert 0. Bostwick. Said Jabez A. Bostwick left a last will and testament which was duly admitted to probate by the surrogate of the county of Mew York, wherein it was provided among other things that one-third of his residuary estate was directed to be paid over to the Banners’ Loan and Trust Company to be held by it in trust for the life of Helen C. Bostwick, the mother of Albert C. Bostwick, and during her lifetime the income arising therefrom was to be paid to her, and upon thé further trust for the life of Albert C. Bostwick, and, upon the death of both Helen C. Bostwick and Albert C. Bostwick, the principal fund so held to be paid over to the issue of Albert C. Bostwick. The provisions of said trust deeds and said last will and testament were in existence and full force and effect irrevocable and known to the testator on the 8th of June, 1899, the time of making his last will and testament.

The provisions of these deeds and last will and testament of Jabez A. Bostwick for the children of Albert 0. Bostwick provided for them a large sum of money, which it is urged by the proponent’s attorneys and counsel amply provide for them and which they think I should take into consideration in deciding this case. I cannot feel, however, that that has anything to do with the question but believe it must be approached and considered from the standpoint of a very much smaller estate and that this large sum should not in any way affect the mind of the person who is to decide it.

If the question of whether or not an infant has sufficient provision made for it in any way is to be considered, then in each case we must take up the question of how much it should be and what is reasonable according to the circumstances of each case, and however sympathetic one might feel, and however he might be inclined to say that all would be amply provided for if the will was allowed to stand, I do not feel that any consideration should be given to this branch of the case but the statute must be construed as it is *698without any reference to the amount of money involved in the transaction.

Upon the hearing testimony was offered as to the making of all of these instruments and the due probate of the will, the present condition of the accounts and showing a history of all of these transactions on the part of Jabez A. Bostwick and the acts of the trustees and the condition of the accounts down to date. This testimony was taken over objection because it would be practically deciding the case at once if it was excluded and so the ruling upon the objection was reserved until the final decision in the matter. Having now arrived at a conclusion "as to what this statute means I am convinced that all of this testimony should be excluded and I therefore sustain the objection and grant the motion to strike out the same.

There have been several decisions in this state bearing upon this subject but I consider the case of Udell v. Stearns, 125 App. Div. 196, and McCrum v. McCrum, 141 id. 83 (where even the similar condition of one child born before the making of the will, and the others afterward, existed as in this case) lead me to but the one conclusion, namely, that that portion of the statute “ unprovided for by any settlement,” means a settlement made by the testator.

It would be possible for me at this time to discuss at length the many arguments raised in the voluminous briefs in this case but I have carefully read and weighed every one of them and it leads me to the same conclusion above expressed, so that I feel that no good purpose would be served by so doing.

I, therefore, direct that the will of Albert 0. Bostwick be admitted to probate but that the decree to be entered thereon shall provide that Albert G. Postwiek, Jr., Lillian S. Bostwick, Dunbar W. Bostwick and George H. Bostwick, on the death of Albert 0. Bostwick, became seized in fee, as his heirs at law, each of an undivided one-fifth of the real es-state of which he died seized, subject to the dower of his widow, Marie S. Bostwick, and that they are each entitled to have distributed to them, respectively, two fifteenths of the personal estate of which said Albert 0. Bostwick died pos*699sessed. This provision for them is the same as they would have been entitled to had said Albert 0. Bostwick died intestate.

Findings and decree in accordance with this memorandum will be signed. Costs and allowances to be fixed at the time of making the decree.

Probate decreed.