
    Arax H. Tavshanjian and Haroutyoun Tiryakian, in Their Individual Right and as Executors, etc., of Hovhannes S. Tavshanjian, Deceased, Respondents, v. Harrison B. Abbott and Others, Impleaded with Nemzour Alyanakian and Krikor M. Alyanakian, Appellants, and Arpinee Tavshanjian and Others, Respondents.
    First Department,
    March 19, 1909.
    Will — failure to provide for after-born children—when such children entitled to portion of estate — costs — extra allowance.
    Where a testator being without children executed a will leaving the residuary estate to his wife, and after the birth of a son added a codicil wherein he directed that a certain sum. be invested and held for the son until he should arrive at his majority, with a further provision that in case the testator, his wife, and child or children should all die through accident or otherwise, the specific legacies should be doubled and the residue go to a hospital, and after the execution of the codicil other children were born and no change made in the will, the after-born children, by virtue of the statute, are entitled to so much of the testator’s estate as would have come to them had he died intestate.
    This, because there was no provision for the after-born children and no indica tion of an intention to disinherit them.
    Legatees whose contention that their legacies should not he cut down by an allowance to after-born children is not sustained, should not be given an extra allowance payable out of the estate.
    Scott, P. J., dissented, with opinion.
    Appeal by the defendants, Hemzour Alyanalcian and another, from a judgment of the Supreme Court in favor of the plaintiffs and certain of the defendants, entered in the office of the clerk of the county of Hew York on the 3d day of July, 1908, upon the decision of the court rendered after a trial at the Hew York Special Term.
    
      Charles W. Sinnott, for the appellants.
    
      George S. Kebabian, for the plaintiffs,Respondents.
    
      Edwinn C. Dusenbury, guardian ad litem, for the respondents Arpinee Tavshanjian and Ardemis Tavshanjian.
   Ingraham, J.:

The plain tiffs’ testator died on July 22,1907, leaving a last will and testament executed the 6th day of April, 1895, and a codicil thereto' executed May 15, 1899. At the time of the execution of the will the testator was married but had no children, and after making certain Specific bequests he left all the rest, residue and remainder of his property to his wife absolutely! There was no mention made of any expected child or children in this will. After the execution of the will a son was born and by a codicil dated May 15, 1899, the testator made provision for this son by directing his executors to invest the sum of $50,000 and hpid the same until his son arrived at the age of twenty-one. This codicil also contained the following clause: “ In the event of the death of myself, wife and child or children at one and the same time, through some accident or otherwise, I direct my executors to give to each and every one of my legatees double the amounts each and every bne would have received under natural circumstances, and in that event I give, devise and bequeath all the rest, residue and remainder to the Armenian Hospital of the St. Saviour in Constantinople, Turkey, absolutely.” Subsequent to the making of this codicil the testator had two daughters; one born August 20, 1902, and one June 18, 1904. The son who was provided for -in the codicil died prior to the testator. The testator thereafter died, leaving his widow and two daughters as his heirs at law and next of kin, and the question presented is whether the daughters born subsequently to the execution of the codicil are entitled as next of kin of the testator to the interest in his estate which they would have taken if he had died intestate, or whether all the property goes’ under the residuary clause in the will to the testator’s widow.

By section 49 of article 3 of title 1 of chapter 6 of part 2 of the Revised Statutes, as amended by chapter 22 of the Laws of 1869, it is provided : “ Whenever a testator shall have a child born after the making of a last will, either in the life-time 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 tho devisees and legatees in proportion to and out of the parts devised and bequeathed them by such will.” In the revisers’ note in relation to this section it is said: “ Whether the birth of a child, after marriage, is a revocation, seems yet a mattér of doubt. Tide 4th Johns. Oh. Hep. p. 51'6., &c. Some legislative declaration seems expedient, and while the consequences of an entire revocation are avoided by the above section, a just provision seems to be made for a probable oversight, as it is placed on the condition that the child is not mentioned or referred to in the will.” There is certainly no provision made for the daughters born after making this codicil. After the birth of his son, the testator made the codicil to the will in which the son was provided for, but there is no provision in the will or codicil which indicated that the testator intended that no provision should be made for children subsequently born. There is no mention in the portions of the will that make provision for his wife and child as to any child or children that should subsequently be born. After making provision for his child and giving the remainder of his estate to his wife, there was presented the question as to what would become of his estate in case he and his wife should die together leaving no descendants, and by the 9th clause of the codicil he provides for that contingency. While the will itself was drawn by a lawyer, it is quite evident that the codicil was written by the testator without legal assistance. He had provided for his wife and child and was desirous of disposing of his estate in case his wife was dead and he had no living issue at the time of his death. It is evident that the 9th clause of the codicil was inserted for that purpose. He there says: In the event of the death of myself, wife and child or children at one and the same time, through some accident or otherwise, I direct,” etc. He provides for a contingency that might happen, but it seems to me that these two children subsequently born could not be said to be mentioned in the codicil,, because he provided that if he himself and his wife and child or children should die at the same time, there should be substituted for his wife and children other beneficiaries. As stated by the revisers’ notes, the object is to prevent a child being disinherited by reason of a “ probable oversight.” Of course, if the will makes provision for an unborn child, or indicates that the testator did not intend to make provision for such unborn child, or had in his mind the possibility of having unborn children and then made' no-provision for them, his intentions would be carried into effect and an unborn child disinherited. But until such mention is made of an unborn child in the will as indicated that the testator had in mind the possibility of having other children, and' that notwithstanding that possibility he still wished the will to be carried out as expressed, then it seems to me the section should apply and a child subsequently given its distributive share of the estate.

I have been unable to obtain much light upon the construction that should be given to this clause of the statute from the reported- eases. In Wormser v. Croce (120 App. Div. 287) this court said: “ If, therefore, it can be seen, or reasonably presumed from the terms of the will itself that the testator had in mind the probability that children might be. born after the will was made, and provided with that contingency in mind, the statute will he satisfied and the will sustained.”

In this case it seems to me that the testator in making the provision disposing of the estate to his wife and child did not have this contingency in mind. Tlieré is certainly nó indication that the testator had that contingency in mind when he made the original will. He then had no children and gave all his residuary estate to his wife. It was an absolute bequest without condition and referring to the existing conditions. ITpon the birth of his son it: is evident that this provision was not satisfactory. He then made provision for his child by the codicil. He did not interfere with the bequest of the residue of his estate to his wife but carved out of it provision for his then only child. Thus the disposing part of the will and codicil, Which, if conditions had remained as they were, would have disposed of all of his estate, was without mention of children, that should be subsequently born and without indication that the testator had in mind the possibility of the birth of other children and disposed Of his property considering that contingency.

•It cannot be' presumed that the testator would have made a codicil to provide for the son after his birth and intended to make no provision for other children thereafter born, and there is nothing in the Will to indicate such an intention.

The statute provides that whenever a testator shall- have a child born after the making of the last will,,and shall die leaving, such child so after-born neither provided for nor in any way mentioned in said will, that the particular child born after the making of the will is entitled to share in the estate.

The statute does, not provide that mentioning the possibility of after-born children should prevent the application of its provisions, but the after-born child itself must be mentioned or provided for. In Wormser v. Croce (supra) the testator clearly expressed liis intention that provision for his children should be made by his widow in case she survived him, and that intention applied both to children born before the making of the will and after; but we have nothing to show in this case that such was the intention of the testator. On the contrary, the fact that lie made a codicil to make provision for a son born after the making of the original will would negative such an intention. Therefore, I think neither of these children born after the making of the codicil was mentioned in the will or codicil, and that they were entitled to the share of the testator’s estate 'that they would have been entitled to had he died intestate. The judgment excludes from, the effect of this statutory provision the legacy of $50,000 to the testator’s wife given in lieu of dower, and also provides that the bequest contained in the 16th paragraph of the will is invalid and void. ¡Neither the plaintiff nor any of the parties to the action appealed from this provision of the judgment and they are not, therefore, considered.

The court below granted an extra allowance of $1,000 to the appellants who are legatees whose legacies will be cut down if. this statute applies. The principal question presented upon the trial was in relation to their right to .the entire legacies, which claim has not been sustained, and this question was the only one presented to the court in which they were at all interested. The court granted to such appellants the costs of the action and also an allowance of $1,000. This seems to me to have been unauthorized, compelling the estate to pay the expenses of prosecuting an unfounded claim against it. The infant defendants appealed from each and every part of that judgment and will have to pay two-thirds of the amount of the allowance. The allowance to the plaintiffs and the guardian ad litem was proper, but I do not think that the allowance to these defeated claimants was justified.

The decree is, therefore, modified by striking out the allowance of $1,000 granted'to the defendants ISTemzour Alyanakian and Krilcor M. Alyanakian, and as thus modified the judgment is affirmed, with costs to the guardian ad Utem to be paid out of the estate.

Patterson, P. J., McLaughlin and Laughlin, JJ., concurred;, Scott, J., dissented.

Scott, J. (dissenting):

I find myself unable to concur in the prevailing opinion, although I freely concede that the point upon which I differ from it is exceedingly close. I, therefore, express my dissent with diffidence. There are few decisions to guide us in determining what constitutes such a “ mention ” of an after-born child in a will as was contemplated by the section of the Revised Statutes quoted by Mr. Justice Ingraham. We had occasion to consider the question in Wormser v. Croce (120 App. Div. 287) and'there concluded that the object of tlife statute was not to secure equality of distribution, but to guard against inadvertent or unintentional disinheritance, or what the revisers termed “probable oversight.” This view is adopted by the prevailing opinion in the present case wherein it is said that if it appears from the will that the testator had in mind the possibility of having unborn children and then made no provision for them, his intention would be carried into effect and an unborn child disinherited. It seems to me that this is precisely what the codicil does indicate. When the will was made the testator had no child. When the codicil was made a child had been born to him, and the use of the word children ” seems to me to clearly indicate that when lie prepared the codicil he contemplated the probability, or at least the possibility that he might have other children. One of the purposes of the codicil was to provide for the disposition of his property in case his whole family should die at one and the same time, and the form of words used to express this idea was: “ In the event of the death of myself, wife and child or children at one and the same time.” The use of these words seems to me to clearly indicate that the testator contemplated that, if the specified event ever happened, his family might comprise, not only the child then born, but also other child or children not born when the codicil was made. Otherwise there would be no significance in the use of the ■ word “ children.” I think, therefore, that it must be said that the testator when he executed the codicil contemplated the possibility that children might be subsequently born to him, and distinctly “ mentioned ” them.

Judgment modified as indicated in opinion,, and as . modified affirmed, with costs to guardian ad litem to be paid out of the estate. Settle order on notice. 
      
      
        Brush v. Wilkins.— [Rep.
     