
    In the Matter of the Probate of the Will of George S. Mallery, Deceased. George H. Mallery, Appellant; Lucie Mallery et al., Respondents.
    
      Will — probate — decedent’s estate — nuncupative military testament —■ subsequent born child entitled to proportion of estate she would have received if decedent had died intestate.
    
    
      Matter of Mallery, 220 App. Div. 794, affirmed.
    (Argued February 13, 1928;
    decided February 24, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 18, 1927, which unanimously affirmed a decree of the Tioga County Surrogate’s Court holding that certain oral statements made by decedent while in active military service were entitled to probate as a nuncupative military testament; that letters written by decedent from France were not entitled to probate, under section 141 of the Surrogate’s Court Act; that Margaret Mallery was decedent’s child; that Margaret Mallery was neither provided for nor mentioned in decedent’s nuncupative will; and that since the said will was made before she was born, she was entitled to the same estate of decedent as would have been distributed to her if he had died intestate.
    
      R. M. Page for appellant.
    
      Frederick E. Hawkes for respondents.
   Order affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.  