
    Carrie W. Crocker, Plaintiff, v. Ralph R. Mulligan, Defendant.
    Second Department,
    January 10, 1913.
    Will— child born after execution of will not mentioned therein — vendor and purchaser — when devisee cannot give marketable title.
    Where a will giving the residuary estate to the testator’s wife stated that his children, of whom he had three living, were hot mentioned or given a portion of the estate by reason of the fact that he had confidence that his wife would provide for “ our said children ” out of the estate so far as it was in her power, a child born after the making of the will, but before the testator’s death, is not mentioned therein, within the meaning of section 26 of the Decedent’s Estate Law, and is entitled to the share she would have taken if her father had died intestate.
    Hence, the widow cannot convey a marketable title to lands devised to her by the residuary clause.
    
      Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      Alfred R. Bunnell, for the plaintiff.
    
      Thomas M. Smith [Henry Martyn Baird, Jr., with him on the brief], for the defendant.
   Thomas, J.:

The question is whether a child is in any way mentioned in a will made before its birth.. The 2d paragraph is: “All the rest, residue and remainder of my estate, both real and personal of every kind and nature, T give, devise and bequeath to my beloved wife, Carrie W. Crocker, I have not mentioned any of our children, or given to them, any portion of my estate, for the reason that I have the fullest confidence in my wife, that she will, out of the estate hereby given to her, provide for our said children, supplying their need so far as in her power lies.” At the date of execution of the will, September 16, 1904, the testator had three living daughters, and another daughter was born in March, 1906, prior to testator’s death in February, 1911. The defendant in a contract to purchase land devised, refuses to take title upon the ground that the last born takes one-fourth of the same under the statute. (Decedent Estate Law, § 26.) The testator in the gift to his wife states that he has “ not mentioned any of our children, or given to them, any portion of my estate,”- and the reason assigned for the omission is his confidence that his wife will, out of the estate given her, “ provide for our said children, supplying their need.” The “said children ” are those earlier described. When he said that he had “not mentioned any of our children,” he meant that he had not mentioned any one of the. children then possessed by his wife and himself. In this way he individualized each child as a living person, and thereby shows that in his mind he had considered his living children one by one,' and concluded that then-interests and necessities, joint or several, did not require that he should -make any reference.to them, or give to them anything. The word “them” refers to the word “children,” and that word defined the class whereof “ any one ” defined the number. When he said “Ihave not mentioned any of our children,” he could not he deemed to have said “I have not mentioned any one of our children unpossessed in prcesenti and procreadle in futuro. ” Each child in his mind was capable of being mentioned by name, and he thought of each one and then confided the group to the affection and wisdom of his wife. Engrossed by consideration of those who were realities in his solicitude, he forgot the possibilities of the future. Of course, if he had mentally forecast the indefinite issue of his marriage he would have provided for such unknown children nothing beyond committing them to the care of his wife. So that the statute works out this — the living objects of his love take nothing; the child, unborn, unconsidered, takes one-quarter of the estate, although, if considered then whether bom or not, she would have received nothing. For it is beyond reason that the father would have denied a gift to any one of his three daughters and given something- to issue that might be born.

The defendant should have judgment that Willette A. Crocker has title in fee to an undivided one-fourth interest in the land as if her father had died intestate, and that the plaintiff cannot convey the same.

Jerks, P. J., Carr, Woodward and Rich, JJ., concurred.

' Judgment for the defendant that Willette A. Crocker has title in fee to an undivided one-fourth interest in the land as if her father had died intestate, and that plaintiff cannot convey the same.  