Holbrook v. Holbrook

Appellate Division of the Supreme Court of New York

Holbrook v. Holbrook

193 A.D. 286, 183 N.Y.S. 728, 1920 N.Y. App. Div. LEXIS 5542

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 27, 1920

StatusPublished

Cited by11 cases

This text of 193 A.D. 286 (Holbrook v. Holbrook) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Holbrook v. Holbrook, 193 A.D. 286, 183 N.Y.S. 728, 1920 N.Y. App. Div. LEXIS 5542 (N.Y. Ct. App. 1920).

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Opinions

Putnam, J.:

To maintain this suit plaintiff has to show that she, as an afterborn child, has been “neither provided for, nor in any way mentioned ” in her father’s will. The case of Stachelberg v. Stachelberg (124 App. Div. 232; affd., 192 N. Y. 576) apparently influenced the disposition of this motion. In that case the will made no provision for any child unless the mother should die before the father, and leave issue, which necessarily excluded a child born after the father’s death. Mr. Holbrook, however, here provided for his leaving lawful issue. If his wife should survive him she was to take. If she did not survive there were two alternatives; one where there was issue surviving, and the other if he should “ not leave any lawful issue me surviving.” Hence he had in mind the case of children born after the making of the will,'whether bom in his lifetime or posthumously. To hold otherwise is to give an artificial and narrow sense to the term “ lawful issue me surviving.”

[289]*289In Matter of Estate of Clark (3 DeG., J. & S. [68 Eng. Ch.] 111), that will gave property to M. C. for life, and after her death to “ all and every the children of the said M. C. who shall survive me.” An afterborn child of M. C. was held to be included. Lord Justice Knight Bruce said (p. 115): “ I am of opinion that we may without impropriety hold the words ‘ who shall survive me ’ to mean ‘ who shall be living after me; ’ and I am not sure that this is not their strictly correct meaning.” According to some lexicographers, it means “ to live after.” (See Worcester’s Diet., word “ survive; ” Bailey v. Brown, 19 R. I. 669, 681.) In my view, by the term “ issue ” plaintiff was included as one of a class. (McLean v. McLean, 207 N. Y. 365.)

The result is reasonable. It saves the father from the reproach of overlooking an event so natural as a posthumous heir. Words of survivorship, therefore, should not be held to defeat the testator’s natural purpose, who had no children when he executed the will. It would multiply words for those drawing wills to require at this day a further term to enlarge the expression “ lawful issue.” To write in a clause “ whether after-born or not ” hath hitherto seemed needless, and without necessity we should not tend to incumber the verbiage of such instruments.

I advise, therefore, to reverse the order, with ten dollars costs and disbursements, and to sustain the demurrers.

Jenks, P. J., • Rich and Kelly, JJ., concur; Mills, J., reads for affirmance.

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Putnam, J.:

To maintain this suit plaintiff has to show that she, as an afterborn child, has been “neither provided for, nor in any way mentioned ” in her father’s will. The case of Stachelberg v. Stachelberg (124 App. Div. 232; affd., 192 N. Y. 576) apparently influenced the disposition of this motion. In that case the will made no provision for any child unless the mother should die before the father, and leave issue, which necessarily excluded a child born after the father’s death. Mr. Holbrook, however, here provided for his leaving lawful issue. If his wife should survive him she was to take. If she did not survive there were two alternatives; one where there was issue surviving, and the other if he should “ not leave any lawful issue me surviving.” Hence he had in mind the case of children born after the making of the will,'whether bom in his lifetime or posthumously. To hold otherwise is to give an artificial and narrow sense to the term “ lawful issue me surviving.”

[289]*289In Matter of Estate of Clark (3 DeG., J. & S. [68 Eng. Ch.] 111), that will gave property to M. C. for life, and after her death to “ all and every the children of the said M. C. who shall survive me.” An afterborn child of M. C. was held to be included. Lord Justice Knight Bruce said (p. 115): “ I am of opinion that we may without impropriety hold the words ‘ who shall survive me ’ to mean ‘ who shall be living after me; ’ and I am not sure that this is not their strictly correct meaning.” According to some lexicographers, it means “ to live after.” (See Worcester’s Diet., word “ survive; ” Bailey v. Brown, 19 R. I. 669, 681.) In my view, by the term “ issue ” plaintiff was included as one of a class. (McLean v. McLean, 207 N. Y. 365.)

The result is reasonable. It saves the father from the reproach of overlooking an event so natural as a posthumous heir. Words of survivorship, therefore, should not be held to defeat the testator’s natural purpose, who had no children when he executed the will. It would multiply words for those drawing wills to require at this day a further term to enlarge the expression “ lawful issue.” To write in a clause “ whether after-born or not ” hath hitherto seemed needless, and without necessity we should not tend to incumber the verbiage of such instruments.

I advise, therefore, to reverse the order, with ten dollars costs and disbursements, and to sustain the demurrers.

Jenks, P. J., • Rich and Kelly, JJ., concur; Mills, J., reads for affirmance.

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Bluebook (online)

193 A.D. 286, 183 N.Y.S. 728, 1920 N.Y. App. Div. LEXIS 5542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holbrook-v-holbrook-nyappdiv-1920.

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