Obecny v. Goetz

134 A.D. 166, 118 N.Y.S. 832, 1909 N.Y. App. Div. LEXIS 2804

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 8, 1909
• Status: Published

Opinion

Gaynor, J.:

The plaintiff has no case unless section 49 of what was called the statute of wills, which lets in children born after the making of a parent’s will, applies to the will of her mother, who made her will in 1860 and died in 1876. The plaintiff, and two other children, were born after the will was made. • It is urged for the appealing defendant that the said statute does not apply to wills made before it was passed, as is the case here. It ivas amended ..in 1869 to apply to the wills of mothers as well as of fathers, and therefore does not apply to this mother’s will if the appellant be correct. The statute was meant to regulate succession to the property of decedents in all cases of after-born children, whether in the case of wills then existing or afterwards to be made. There is no vested interest in the way of construing it contrary to the legislative intention, for nothing vests under a will until it takes effect, i. e., by the death of the testator. There is no controlling decision on the subject.

The judgment should be affirmed.

Hirschberg, P. J., Rich and Hiller, JJ., concurred; Burr, J., concurred on authority of Obecny v. Goetz (116 App. Div. 807).

Judgment affirmed, with costs.