In re Proving the Last Will & Testament of Gaffken

114 Misc. 693

• Court: New York Surrogate's Court
• Decided: March 15, 1921
• Status: Published

Opinion

Wingate, S.

The determination as to whether the will propounded for probate is revoked by marriage and birth of issue after its making is controlled by the law in force at the date of the testator’s death.

The intention of the legislature, by the amendment in 1919 to section 35 of the Decedent Estate Law, seems to have been to provide that a will is revoked under the conditions specified in that section only as to such of the class of wife and issue as are not provided for in the will or by some settlement, or in such way mentioned in the will as to show an intention not to make such provision. The provision in the propounded paper for Marie Louise Krom, who was the testator’s wife at the time of his death, is a provision for his wife within the meaning of this statute, and as to her the will of the decedent is not revoked.

There is concededly no provision for decedent’s son contained ir[ the will now before the court or "in any settlement, nor is any mention made of him in the will. He isy’ accordingly, entitled to the same rights in the estate of the decedent as would be his if such .wilLian not been made.

The will is admitted to probate subject to the rights of the testator’s son as provided in the statute cited supra.

Probate decreed.