
    Matter of the Estate of Frederick H. Sauer, Deceased.
    (Surrogate’s Court, New York County,
    January, 1915.)
    Wills — when not revoked by advent of after-born child—petition under Code Civ. Pro., § 2615, dismissed — Decedent Estate Law, §§ 26, 27.
    A will is not revoked by the advent of an after-born child of testator, but the child as heir is put to his or her special statutory action under section 27 of the Decedent Estate Law and only the Supreme Court may determine whether or not the action will lie.
    A petition under section 2615 of the Code of Civil Procedure to determine whether or not a testator by his last will had provided for his after-born child in conformity with section 26 of the Decedent Estate Law must be dismissed, but . without prejudice to the proper action to enforce the infant’s rights in the premises, if any.
    Proceeding upon the probate of a will.
    Seybel & French, for proponent.
    Edward R. Rayher, special guardian.
   Fowler, S.

In a probate proceeding the special guardian of an infant asks for. construction of the will, pursuant to the old part of section 2615 of the Code of Civil Procedure. The will in this matter was admitted to probate arid its construction reserved, in conformity with the statute, for further hearing and decree. Such hearing has ‘now been brought on and counsel fully heard, but no proofs were tendered. The single point for construction is whether or not the will of the late Mr. Sauer, the father, provides for the after-born infant child in conformity with section 26, Decedent Estate Law. If not so provided for, section 28, Decedent Estate Law, prescribed the remedy of the omitted child and confers a right of action on such child in vindication of the right. Such action does not lie in the Surrogate’s Court. I have no doubt that, under the circumstances, I ought not to proceed to construction, as any decree I might enter thereon would not be binding on the court in which the action to vindicate the infant’s right lies. If a will affects real property, I am persuaded that no one would take a title to it resting on our decree for construction under the circumstances shown in this matter. The remedy of an after-born child, under circumstances of the kind here presented, is exclusive, and depends wholly on statute. Decedent Estate Law, § 27. How, then,- can our decree bind a court possessed of exclusive' jurisdiction1? It has been held by our highest court that the; after-birth of an infant is not operative ás a revocation of the parent’s will. Smith v. Robertson, 89 N. Y. 555. The statutory right given to the after-born child, it has been said, is suggested by precedents found in the Civil Law. Per Scott, J., Wormser v. Croce, 120 App. Div. 289. ■ I will now follow the analogy suggested by Mr. Justice Scott in the case last cited a little further than he found necessary. In the Roman law the principle of legitim prevented .■ the disherison of children, and, to a certain extent, at one time, before the Statute of Wills, this principle was recognized by our own common law, especially in those ancient counties or towns once subject to the civil law during the time of the Roman occupation and ascendancy. This principle is still recognized in the law of France (Code Civil, art. 913), and is binding on our own citizens who have French property. Pellerin’s French Law of Wills of Foreigners, 30. The lex Falcidia known to the Roman law, and often cited by our Court of Appeals in cases of this kind, provided that no one could bequeath more than three-fourths of his property. This, before Justinian’s time, at least, practically carried to the Roman heir, in any event, one-fonrth of the father’s estate. A will which did not expressly disinherit children was also, in Roman law, said to be injustum or nullius esse momenti. D. 28, 3, 3, 3. A violation of these principles or rules was not, I think, in the Roman Law, remedied by the querela inofficiosi testamenti, or the usual Roman action to set aside the will, but by the common vindicatory action belonging to all heirs by the Roman system. It is just at this point that the analogies of the Roman law, alluded to by Mr. Justice Scott in the case cited, are most important to us in this matter before me. It is our statute which gives the right to after-born children omitted from wills. We have seen that the will under our law is not revoked by the after-birth of a child, but that the child is put to his or her statutory action as heir. In our state this action is a special statutory action which lies in a special court, at least lies only in our general court, and not in this court. No other court than that alone vested with jurisdiction of such actions can determine whether the action lies or not, and that is just what this petition for construction virtually asks me to determine in this proceeding for probate. As my construction will not be binding on the Supreme Court or, indeed, on any one affected by the statute mentioned, I obviously ought not- to render any further judgment or decree in this matter. Of all useless and troublesome things an ineffectual and voidable judgment is the most useless and the most troublesome. I expressed this opinion, in substance, on the argument, and my subsequent examination of the matter only confirms that, opinion. The petition will therefore be dismissed, but without prejudice to the proper action to enforce the infant’s rights in the premises, if any.

Decreed accordingly.  