
    In the Matter of the Petition of Edmund E. Murphy, as , Executor, etc.
    
    
      (Court of Appeals,
    
    
      Filed February 5, 1895.)
    
    1. Will—After-born child.
    The birth of a child, after the making of a will, does not operate to revoke it, but merely renders it inoperative as to that portion of the estate which, if her patent had died intestate, would have been distributed to her as the next of kin.
    2. Same—Executor.
    In such case, letters testamentary are properly issued to the person, named as executor in the will, and he, as such, has a right to receive and administer the personal estate.
    Appeal from order of the general term of the supreme court in the first judicial department, which affirmed a decree of the surrogate’s court for the county of Hew York, directing the payment to the petitioner, as executor of Elsie S. Murphy, deceased,, of a legacy given by the last will and testament of Edmund A. Smith, deceased.
    
      Treadwell Cleveland, for app’lt; Frank D. Sturges, for resp’t.
    
      
       Affirming 64 St. Rep.
    
   Haight, J.

The order appealed from directs the trustee to pay to the petitioner the legacy belonging to his testatrix, under the will of Edmund A. Smith, deceased, or that she pay over to him the sum of $100,000, on account of the principal of such legacy, or deliver to him securities equivalent to that sum.

Edmund A. Smith died on the 24th day of February, 1876, leaving a last will and testament which has been duly admitted to probate by the surrogate’s court of the county of Hew York, in which, among other things, by the fifth clause thereof it is provided : “ I give and bequeath in trust to my executors, hereinafter named, all the rest, residue and remainder of my estate upon the following trusts, to wit.” Then follow subdivisions of the clause in which trust estates are created for different persons, naming them. By the fourth subdivision he provides : “ I direct my ex--editors, after providing for the' above bequests, to divide all the rest, residue and remainder of my estate equally between my said wife and children, share and share alike, the principal of each child, however, not to be paid until they respectively arrive at the age of thirty years, the interest arising therefrom to accumulate during their minority, and, on their attaining the age of twenty-one years, the interest arising therefrom, that is, from said principal and accumulation, to be paid to said children until they respectively arrive at the age of thirty years.”

Elsie S. Smith was the daughter of the testator, and, as such, became entitled to one-fifth of the residuary estate as above provided for. On October 28th, 1891, she married Edmund E. Murphy, the petitioner, and thereafter died, September 27th, 1892, at the age of twenty-two years, leaving the petitioner, her husband, and an infant daughter, Elsie J. Murphy, her surviving. She also left a last will and testament, in which she devised and bequeathed all of her property to her husband, appointing him sole executor of her estate. Her will was dated October 28th, 1891, and contained no provision for any child or children that should thereafter be born to her. Her daughter was born September 4th, 1892:

The residuary estate, under the will of Edmund A. Smith, deceased, bequeathed to his children, amounts, in personal property, to about the sum of $700,000.

While certain trusts were created by the fifth clause of the will, we are of the opinion that no trust was created as to the residue and remainder specified in the fourth subdivision thereof and the the amount thereof vested in the widow and children of the testator with a postponement of the payment, as to the children, until they should arrive at the age of thirty years. It is quite apparent that this provision of.the will-was, intended solely for the .benefit •of the testator’s children, and- the postponement of the payment was intended for their benefit and not for the estate. It consequently follows that, upon the death of the daughter Elsie S., the ;share belonging to her immediately passed to her next of kin, or her legatees under her last will and testament So far there appears to be no controversy as to the rights of the parties.

It is contended, however, that two-thirds of the estate of Mrs. Murphy passed to her infant daughter Elsie J., and was not subject to administration. But we are unable to adopt this view. The statute provides that: “ Whenever a testator shall have a ■child born after the making of a last will, either in the lifetime or after the death of such testator, and shall die leaving such child, so after-born, unprovided for by any settlement, and neither provided for, nor in any way mentioned in such will, every such ■child shall succeed to the same portion of such parent’s real and personal estate as would have descended or been distributed to ■such child, if such parent had died intestate, and shall be entitled to recover the same portion from the devisees and legatees, in proportion to and out of the parts devised and bequeathed to them by such will.” 2 R. S. 65 § 49, as amended, Laws 1869, chap. 22. Elsie J. was an after-born child, and, under the-provisions of

this statute, became entitled to two-thirds of the personal estate left by her deceased mother. The personal estate, however, left by her mother was subject to administration. Her debts had to first be paid, and only that which remained would pass to her next of kin under the statute; so that Elsie J. would take only two-thirds of that which remained after discharging the obligations resting upon her mother’s estate. The birth of Elsie J., after the making of the will does not operate to revoke it. It merely renders it 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. In other respects the will remains valid. By it the petitioner becomes the sole executor, and is entitled to the other third of the testatrix’s personal estate. Smith v. Robertson, 89 N. Y. 555-558; Luce v. Burchard, 78 Hun, 537; 60 St. Rep. 770; In the Matter of Gall, 5 Demarest, 374; 7 St. Rep. 760. The other clauses not being, affected, it follows that letters testamentary were properly issued to the petitioner, and that as such executor he has the right to administer the personal estate. Although in name there is a difference between executor and administrator yet, in fact and in law, they are really the same, for each has control of the personal estate and the distribution thereof. Robins v. McClure, 100 N. Y. 328-340. If the estate had been real, instead of personal, it would have descended directly to Elsie J., as heir at law, but being personal it passed to the personal representative of the deceased for administration, and then for distribution under the statute and the will, so far as it remains in force.

It has been intimated that in no event should this fund be paid ■over to the petitioner, without requiring him to give bonds to account therefor to the infant; but, so far as this question is concerned, it rests upon the'Sound discretion of-the courts below. •.. It does not appear from the record before us that the petitioner is insolvent, or that he is in other respects an improper person to have the care and custody of this fund. True, it is a -large sum, and the courts having the charge thereof should proceed with the utmost caution;' and should it be made to appear that the petitioner is insolvent, or in other respects an improper person to have the care or management of this fund, the surrogate’s court might still, in the exercise of the discretion vested in it, impose, as a condition for granting the order, that proper security be given.

The order appealed from should be affirmed, with costs.

All concur.

Order affirmed.  