
    Barbara Obecny, Respondent, v. Kunigunda Goetz, Appellant, Impleaded with Victor Obecny, Defendant.
    Second Department,
    January 18, 1907.
    Will — rights of children born after execution of will — former Revised Statutes construed — partition — when after-born child may maintain action to partition lands devised.
    A. will is ambulatory and the validity of its provisions should be determined by the law as it exists at the time of the death of the testator.
    A will was made in 1860, wherein the testatrix, devised her real estate to her husband. She died in 1876, having children born after the execution of the will.
    
      Held, that after-born children were entitled to share in the real estate by virtue of the amendment to the Revised Statutes (R. S. pt. 2, chap. 6, tit. 1, art. 3, § 49), made, by chapter 22 of the Laws of 1869, and were entitled to maintain partition against the grantee of the father who took under the will;
    That the rule that the validity of a devise must be determined by the law as it stands at the death of the testatrix was not changed by 3 Revised Statutes (5th ed.), section 93, which provided that the title shall not be construed to impair the validity of the execution of any will made before the chapter takes effect, or affect the construction of any such will. Said section applies only to the validity of the execution and to the construction of the will, and is not controlling as to the validity of a disposition of property;
    That, in order that an after-born child may have the benefit of the statute . aforesaid, it must appear that the testator died leaving the child unprovided for by any settlement;
    That the grantee of such premises, subject to the claims of an after-born bhild of the former owner, is entitled to be protected in an action of partition for the payment of mortgages on the premises, and for taxes, assessments, repairs and improvements.
    Appeal by the defendant, Kunigunda Goetz,, from an interlocutory' judgment' of the Supreme Court in favor of the plaintiff,
    
      entered .in the .office of the clerk of the county of Kings on the 7th day. of March, 1905, upon the decision of the court rendered after a trial at the Kings County Special Terra.
    
      Louis J. Altkrug, for the appellant.
    
      Louis J. Halbert, Jr., for the respondent.
   JENKS, J.:

The action is partition and the appeal is by the defendant Goetz from the interlocutory judgment therein. In 1857 Annah Dehnert owned the premises in fee. Ill 1860 she executed her will, devising all of her estate absolutely to the husband, Peter Dehnert. In 1876 Annah died survived by her said husband and four children, of whom three were born after the execution of her said will. In 1877 the will was probated, and the testator’s husband, Peter, entered into possession of the premises and held them until. 1880, .when he conveyed them to Miller, who, in 1881, conveyed them to the defendant Goetz. In 1903, the plaintiff, one of the children of Annah ?md Peter Dehnert, born after the execution of her mother’s will, began this action. The learned Special Term in its interlocutory judgment decides .inter alla that each of the children of Annah Dehnert, including the plaintiff, born after the execution of the will became seized of an undivided one-foiirtli interest in the premises subject to curtesy. The ground of such decision is that the will was made inoperative perforce of the statute as to the children of the testator born after the execution of her will.

If the testator had died before 1869, then this question must be decided adversely to the plaintiff for the reason that the statute then applied to the will of a father only. (Cotheal v. Cotheal, 40 N. Y. 405.) The statute (R. S. pt. 2, chap. 6, tit. 1, art. 3, § 49) was amended by chapter 22 of the Laws of 1869, by substituting' the word “parent ” in place of the word “father.”

As a'will is. ambulatory, the general rule is that it must be consider.ed upon the law as it exists at the time of the death of the ■testator. (Bishop v. Bishop, 4 Hill, 138; De Peyster v. Clendining, 8 Paige, 304; affd., sub nom. Bulkley v. Depeyster, 26 Wend. 21; Parker v. Bogardus, 5 N. Y. 309; Moultrie v. Hunt, 23 id. 394; People v. Powers, 147 id. 104; Schouler Wills [3d ed.], § 11.) Hence as section 49 was amended in 1869 so as to apply to either a father or a mother, and the testator did not die until 1876, the section applies to the will of this testator unless the will . was excluded from its purview by some other statute. The learned counsel for the appellant insists that such a saving statute is found in section 93 (70), 3 Revised Statutes (5th ed:) 153: “ The provisions of this title shall not be construed to impair the validity of the execution of any will made before this chapter shall take effect or to affect the construction of any such will.” The section also appears in the sixth edition of the Revised Statutes of 1875 (Yol. 3, p. 72, § 102, Banks & Bros.’ ed.) and seventh edition of 1882 (Banks & Bros.’ ed., vol. 3, p. 2288, § 70). I am of opinion that it does not apply. It is limited in terms to impair the validity of the execution ” or to affect the construction.” In the first place there are provisions in that title relative .to execution and construction to which the words of this section are apt, e. g., sections 7 (5), 38 (40), 39 (41), 44 (46), 45 (47) and 50 (52) (described as in edition of 1875), and in the second place this section does not affect either the validity of the execution or the construction of this will. The validity of the execution is not affected, for the will stands and may be probated. (Matter of Bunce, 6 Dem. 278; Matter of Murphy, 144 N. Y. 557.) By “ construction ” of a will we may understand the ascertainment of the meaning and force of the words thereof and the effect in law of the dispositions made therein. (Cutting v. Cutting, 86 N. Y. 522, 535.) The interference of the statute is not determined by any act which affects the construction.” The statute interferes to limit the testamentary power of a testator under the conditions expressed. The will is not construed; it stands as written inoperative as to that portion of the estate which, if her mother had died intestate, would have been distributed to her as the next of kin.” (Matter of Murphy, supra, 561.) Thus the statute in protection of such children arrests the testamentary power of the mother to a degree, and in effect substitutes “ The Will of the State ” so as to secure provision for them. The child in such a case does not take under the will. (Smith v. Robertson, 89 N. Y. 555.) The distinction is tersely put by Jessel, M. R., in Hasluck v. Pedley (L. R. 19 Eq. 271), when speaking of the effect of the Apportionment Act? he said; The Act does not affect the meaning of the will; it only alters its. legal operation.” “ In England a court of equity or common law, as .the case may be, is called the Court of Construction ’ with regard-to wills, as opposed to the Court of Probate, whose duty is to decide whether an instrument be a will at all. Ho.w the. Court of Probate may decide that a given instrument is a will, and yet the Court of Construction may decide that it has no operation by reason of perpetuities, illegality or uncertainty.” (Rapelye v. Lawrence, 1 Law Dict. 273.) In Bishop v. Bishop (supra) the will was made in 1825 and the testator died in 1840. The court held that contrary to the law in 1825 and perforce of the statute of 1830 (2 R. S'. 66* § 52) a devise went to the heir at"law of the devisee, and put aside a saving clause (2 R. S. 68, § 70) exactly similar to that now invoked by the appellant, with the comment that the statute only went to the execution and construction. In De Peyster v. Clendining (supra) the court-held that perforce of the then 47th section of article 2 of title 2 of chapter 1 of part '2 of'the Revised Statutes (1 R. S. 727) enacted subsequent to the making .of the will, but in existence long before the time of the death of the testator, that the trust recognized at the time of the .making of the will was turned into a legal ■estate in the beneficiary. The point was^ made that this saving provision (then 2 R. S. 68, § 70) applied, but the .chancellor said, the provision as to not affecting the construction was not broad enough.

The learned counsel for the’ appellant relies upon Parker v. Bogardus (supra). I think that it does not apply. The court decided in'that case that section 5 of the Revised Statutes, which was not enacted at the time of the making of the will, but was'enacted prior to the death of the testator,- did nqt apply to the will., for the reason that the then section 77, which was in the same terms as the present saving section relied upon by the appellant, applied, but this section was held .applicable because'the court said that section 5 involved a question of construction (pp. 312, 313) and that- the word “ construed ” in the 5 th .section and the-word “ construction ’’ iii the 77th section .were used as synonymous. Hence, if the application of the section invoked by the plaintiff in this case (and I think it plain that it is not) is nqt one of construction, Parker’s Case (supra) is) not authority. The learned counsel for the appellant also lays stress upon-the fact that at the close of the opinion in that case the court say : “ The same remarks are applicable to section 49, which relates to an after-born child,” and contends that the court intended thereby that the utterances of the opinion to the effect that section 77 applied to section 5 because the question was one of construction, likewise applied to section 49. I do not thus interpret the sentence. In the preceding part of the paragraph which contains this sentence the court distinguished De Peyster v. Clendining (supra) and Sherman v. Sherman (3 Barb. 385) and then came to consider Bishop v. Bishop (supra). It said : “ The case of Bishop v. Bishop (4 Hill, 138) decided that section 52 (2 Rev. St. 66) of the title in relation to wills and testaments applied to wills made before the adoption of the Revised Statutes, where the testator died after those statutes took effect. But there the son and heir at law of the devisee who died in the lifetime of the testator, did not take under the will, but as special heir under the law ; and the question was not one of construction ; but if it was, the decision was erroneous, and cannot be regarded as authority here.”, Then immediately follows this sentence: “ The same remarks are applicable to section 49, which relates to an ■ after-born child,” i. e., the remarks which the court had just made with reference to Bishop v. Bishop. Hence, the court meant to say that under section 49 the child did no,t take under the will, but as special heir under the law, and the question was not one of construction, with the reservation that if it was, the decision in Bishop v. Bishop was not authority.

The entire will is not revoked, but made inoperative as to that part of the estate which in case of intestacy of -the testator would have descended or have been distributed to the after-born children. (Smith v. Robertson, 89 N. Y. 555; Matter of Murphy, 144 id. 557, 561.) In Smith v. Robertson (supra) it was held that such a child might maintain ejectment, and upon the reasoning and force of that decision I think it clear that she can maintain this action.

There is no proof or finding that the testator died leaving the plaintiff “ unprovided for by. any settlement.” This fact must appear before the statute ■ applies. The policy of the statute is provision for such a child who is thus unprovided for outside of the will, and neither provided for nor in any way mentioned in the will; not for such a child who may have been provided for by a settlement, and. yet is not provided for or is not in any way'mentioned'in the will. For, of course, the parent might have made fair and just provision for the child outside of any testamentary provision. (Matter of Huiell, 6 Dem. 354.)

The testimony and the documentary evidence show that the defendant, in ignorance of any title or claim of .title by the plaintiff, paid off two certain mortgages which were upon the premises at the death of the testator, and, hence, the judgment should be without prejudice to a lien for the amount paid in discharge of the mortgages, or to be subrogated to the rights of the mortgagee. (Smith v. Robertson, supra.) It alsb appears that the defendant in like-ignorance has paid for taxes, assessments, repairs and improvements. The. plaintiff is not entitled to partition unless the equitable rights of her cotenant are respected. (Ford v. Knapp, 102 N. Y. 135, 140, 141; Jones v. Duerk, 25 App. Div. 551, 560 et seq. ; 1 Fiero Spec. Actions [2d ed.], 195, and authorities cited.) I shall not attempt to define the exact measure of relief, inasmuch as the court in Ford v. Knapp (supra) say : “ Every .case of the kind must be determined upon its own facts and surroundings, and those may occur in which such an allowance would be unjust and inequitable.”

eThe judgment must, therefore, be reversed and a new trial granted, costs to abide the final award of costs.

Hirsohberg, P. J., Hooker, GIaynor and Miller, JJ., concurred.

Judgment reversed and. new trial granted, costs to abide the final award of costs. 
      
       R, S. pt. 2, chap. 6, tit. 1.— [Rep,
     