
    FRANCIS DRISCHLER, et al., Respondents, v. MARIE VAN Den HENDEN, individually and as Executrix, and RICHARD VAN Den HENDEN, Appellants.
    
      WíVjb.—Bights of children lorn after will is executed, no provision being made for them. — Conveyance by sole legatee and devisee in fraud of rights of said children, when will be set aside.—Mutual wills—what necessary to 'constitute. — Guardian ad litem—failure to notify natural guardian of application for, cannot be taken advantage of upon the trial.—Gift.■—Husband and wife.—Examination before tidal—exclusion of testimony taken in, when not error at the trial.
    
    Before Sedgwick, Ch. J., O’Gorman and Ingraham, JJ.
    
      Decided June 2, 1883.
    Appeal by defendant from an interlocutory judgment entered at special term.
    
      The court found that plaintiffs are infants under the age of fourteen years and are the children of Franz Drischler deceased and the defendant Marie Van den Henden; that plaintiffs were born after the making of the will hereafter referred to and were his only heirs at law and next of kin ; that said Franz Drischler made a will by which he gave all his property to his said wife and appointed her his sole executrix, making no provisions for plaintiffs in said will; that said will was duly admitted to probate and letters testamentary issued to said executrix, who took into her possession all the assets and property of the deceased ; that defendant Marie Drischler Van den Henden purchased certain real estate, paying for said property with the bonds or other property of said Franz Drischler deceased, and that said defendant had no property other than her interest in the estate of said Franz Drischler deceased ; that said real estate was subsequently conveyed to the defendants Marie Van den Henden and Richard Van den Hen-den ; that the contents of a certain drug-store and good will thereof, part of the estate of the deceased, were sold and delivered by said executrix to said Richard Van den Hen-den, before the marriage of said executrix to said Van den Henden for an alleged consideration of seven hundred dollars, which was an inadequate and insufficient consideration therefor ; that the transfers of said real estate and drug store, to said defendant Richard Van den Henden were made with the intent to defraud the infants, plaintiffs, and to deprive them of their rights in their father’s estate, and that said Richard Van den Henden was cognizant of the fraudulent character of the transfer of said property and a party thereto.
    And as conclusions of law: that plaintiffs are entitled to recover the same portions of the estate of their father, Franz Drischler, deceased, as they or either of them would have been entitled to if their said father had died intestate ; that the said real estate and drug store were conveyed to defendants with the intent to defraud the plaintiffs ; that a trustee should be appointed to convey the said property to the plaintiffs subject to the rights of the defendants ; that the defendants account for all the property, and the rents, incomes, interests and profits of said real estate that came into their hands, and the full value of the drug-store before a referee.
    Judgment was entered in conformity therewith, from which defendants appeal.
    The court at General Term said: “I have carefully •
    examined the testimony given on the .trial and am of the opinion that the findings of facts are sustained by the evidence. i
    “ The defendants claimed that the complaint should have been dismissed, because it appears that the guardian ad litem for the infants, plaintiffs, was appointed without notice to the defendant, who was the mother of the plaintiffs, and with whom they were residing at the time of his appointment. I do not think that such an objection could be taken at the trial where the court has jurisdiction of the cause of action and the persons of the parties. A failure to appoint a guardian ad litem for an infant plaintiff, is-simply an irregularity, and such an omission does not deprive the court of jurisdiction (Rutter y. Puckhover, 9 Bosw. 638). In this case the court appointed a guardian, and having jurisdiction to make such an appointment, it cannot be questioned collaterally, but only by a motion to set aside such an appointment as irregular". It appears that such a motion was made and denied and from the order denying it no appeal was taken. This I think concluded the parties here as to any alleged irregularity.
    “The appellant also moved to dismiss the complaint on the ground that it did not appear in evidence that no other settlement had been made for the children of the testator. The will of deceased gave to the defendant all his real and personal property, of whatever nature or kind of which he was possessed, at the time of his death. It was alleged in the complaint, and it appears by the evidence, that the defendant had taken possession of all the assets and property left by the deceased, and there were no allegations in the pleadings, and no evidence offered at the trial, that the plaintiffs were provided for by any settlement. This I think is sufficient to bring the case within the statute. The will was made several years before the plaintiffs were born; it gave all the property of the deceased to his wife; on the1 death of the testator the wife took possession of all the property and assets of the deceased ; and the infants were at the time of the testator’s death under the age of fourteen years. These facts are entirely inconsistent with the idea that the testator had provided by any settlement for the plaintiffs, and were I think sufficient to put the defendants to the proof of such a provision by settlement if one had. been made.
    “The real estate of the testator therefore, descended to the plaintiffs, and they were entitled to the same share of the personal property as if the testator had died intestate (Smith v. Robertson, 89 JV. T. 555).
    
    “ The fact that at the time of the execution of the will in question, the defendant made a will leaving all her property to the testator, does not of itself make the wills mutual wills. In order to make a mutual will the instrument, or instruments, must be executed by both parties under an agreement to make such a disposition of the property of each, that the survivor will be entitled to the property of the one first dying, or the disposition of the property must be in the instrument executed by both of the parties. There is no evidence in this case that the defendant made her will under any such agreement or understanding, or in fact that the testator ever knew that she had made a will in his. favor, except the fact that he signed the defendant’s will as a witness.
    ‘‘The evidence was not sufficient to establish a gift of the $18,800 of United States bonds by the testator to the defendants; the most that can be said is that there was some evidence from which such a gift might have been, found. The burden of proving a gift is on the party alleging it, and the mere manual possession of a deceased husband’s property by his widow is not prima facie evideuce of a change of title to her (Conklin v. Conklin, 20 Hun, 278).
    “ The exclusion of the examinations of the defendant taken before trial, was not error. The defendant had been examined on her own behalf, the plaintiff had then rested their case on rebuttal, and it was within the discretion of the trial court whether to allow the defendant to be recalled or not, and under the circumstances, I do not think that there was such an abuse of that discretion as would justify a reversal. Under any circumstance no harm could come to the defendant, as after the rejection of the evidence, the court allowed her to be recalled and testify.”
    
      William C. Clifford, for appellant.
    
      John P. Pannes, for respondent.
   Opinion by Ingraham, J.; Sedgwick, Ch. J., and O’Gorman, J., concurred in result.

Judgment affirmed with costs.  