In Re Faber\u27s Estate, 305 N. Y. 200, 11I N. E. 2d 883 (1953)

Manuele, Robert

English

Digital Commons @ University at Buffalo School of Law

Buffalo Law Review Volume 3 Number 1 Article 40 12-1-1953 Decedent Estates—Settlement for After-born Children Robert Manuele Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Estates and Trusts Commons Recommended Citation Robert Manuele, Decedent Estates—Settlement for After-born Children, 3 Buff. L. Rev. 111 (1953). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol3/iss1/40 This The Court of Appeals Term is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. THE COURT OF APPEALS, 1952-53 TERMwith foreign countries, and as such it must fall as unconstitu-tional.22 But it has been held that each state possesses the powerto control the manner in which property within its own jurisdic-tion passes by last will and testament.? Along with this power thestate may direct how both the procedure for the probate of the willand the process of administration is effectuated.24  Actually theexecutive freezing order could be terminated without altering theconditions for which § 269 was enacted; for there would still be noguarantee that the distributee would receive the bequest and thisuncertainty would frustrate New York's attempt to safe guard thetestatrix's desires to protect the legatee's property. 5  Further-more, the court overlooked the possibility of Executive Order No.8389 which provides that such funds may be in the alternativedeposited "in a blocked account or with a public officer, agency, orinstrumentality designated by a court having jurisdiction of theestate."126 This could have well been- interpreted as giving thestate courts the express power to direct where the money shouldbe deposited. Thus the question of constitutionality might havebeen avoided.Settlement For After-born. ChildrenThe Court of Appeals has finally in a 5 to 2 opinion settled thequestion of what constitutes a settlement for an after-born childnot provided for in the last will and testament of his parent. Theholding of In re Faber's Estate7 was that a settlement is de-pendent upon the intent of the testator and the facts of the indi-vidual case. In the instant case the testator left a net estate of$54,000 in trust for his wife and father with a weekly amount tobe paid to both of them, and in the case that the wife's weeklyamount was not sufficient, then additional amounts of any sizewere to be made from the principal. The principal was to go tothe older child upon the death of the testator's father's and wife'sdeaths. The only other child, after-born, was the co-beneficiary,with her sister, of insurance policies which amounted to $14,500for each child. The executors brought an action to determine ifthe amount of insurance policies constituted a settlement for theafter-born child. The court found that they did constitute a set-tlement.22. U. S. CoNsr. Art. I, § 8.23. Mager v. Grima, 8 How. 490 (U. S. 1850) ; see also Rocca v. Thompson, 223U. S. 317 (1912).24. Lyeth v. Hoey. 305 U. S. 188 (1938).25. Matter of Wcidberg, 172 Misc. 524, 15 N. Y. S. 2d 252 (Surr. Ct. 1939).26. See note 18 supra [italics added].27. 305 N. Y. 200, 11I N. E. 2d 883 (1953).111BUFFALO LAW REVIEWIn New York it has been held that parenthood in itself con-stituted a revocation of any existing will in so far as the after-born child is concerned, - following the English rule that eventhe intent of the testator that his will should not be revoked isinsufficient to override the presumed revocation.2 9 However,other New York courts have decided cases in accordance withand in opposition to the English rule.30 By the instant casethe law of New York is held to be contra to the English doctrine.Although the gift given in settlement must be absolute, itcan be made contingent on the testator's life.31 It is also requiredthat the settlement be in written form.2 Thus an insurance policyon the life of the testator can be a proper settlement.The court reasons in the present case that if they were toaward the after-born child her intestate share, then there wouldbe a disappropriate division of the estate. The after-born childwould receive a total of $32,000 while her sister would only receive$14,500 with only an expectancy of receiving the corpus of thetrust which the court' said would practically be naught, in thelight of the unlhnited power given to the trustee to give to thetestator's wife any amount that she -might need above her weeklypayments. The money payable out of the insurance policies wasthen held to constitute a settlement and would provide for thechild's education: and maintenance in the future in the same man-ner as a child who would have been born at the time of the makingof the will.While the majority opinion appears to be equitable in itsresults, it does not set up a clear standard for future litigation.Judge Desmond in his dissent attempts to set up a standard thatcould be excellent if applied in moderation. The three principlesthat he sets up are: first, that a gift or transfer to constitute asettlement should be made in writing; second, that it should beabsolute and not contingent; and third, that there be weighty evi-28. Matter of Del Genovese's Will, 169 App. Div. 140, 154 N. Y. Supp. 806 (2dDep't 1915).29. Marston v. Roe and Roe v., Marston, 112 Eng. Rep. 742 (1838), "And weall concur in the opinion that the revocation of a will takes place in consequence of arule or principle of law, independently altogether of any question of intention of theparty (testator) himself, and consequently that no such evidence (as to his intent) isadmissible".30. In re Kennedy's Will, 167 N. Y. 163, 60 N. E. 442 (1901); In re Stern'sEstate, 189 Misc. 639, 56 N. Y. S. 2d 631 (Surr. Ct. 1945). Contra: Matter of Stone'sWill, 200 Misc. 639, 107 N. Y. S. 2d 775 (Surr. Ct. 1951) ; Matter of Froeb's Estate,143 Misc. 660, 257 N. Y. Supp. 851 (Surr. Ct. 1931).31. Matter of Backer's [Vill, 148 Misc. 318, 266 N. Y. Supp. 47 (Surr. Ct. 1933);Matter of Froeb's Estate, supra note 34; Matter of Kirk's Estate, 191 Misc. 473, 80N. Y. S. 2d 378 (Surr. Ct. 1948).32. Matter of Snopek's Estate, 249 App. Div. 369, 292 N. Y. Supp. 359, aff'd, 275N. Y. 606, 11 N. E. 2d 778 (1937).112THE COURT OF APPEALS, 1952-53 TERMdence, inside or outside the writing, that it is intended to be asettlement by which his child would be provided for after hisdeath. The first two requirements are concurred in by the ma-jority. It was only -with his third requirement that they differed.Judge Desmond's application was too strict and in cases such asthe instant one the results would prove inequitable. His term"weighty evidence" should include the surrounding circumstancesso that testator's intent may be shown by the relationship of theamount of his estate and the amount given to each legatee underthe will. Only in this manner will it be possible to avoid the injus-tice of providing the after-born child with a sum out of proportionto that received by the other children living at the time of theexecution of the will. This inequitable result surely would not bethe intent of a testator.Substitution of Executor for TestatorIn Humbeutet v. HumbeuteZ,3 the testator, who had been theplaintiff in the action, had recovered a judgment from her son di-recting him to pay over to her certain amounts of cash and securi-ties in his possession. After the testator's death, her executormoved to amend the final judgment requiring the son to deliverthe cash and securities to the executor. The nunc pro tunc amend-ment made to substitute the executor for the testator was heldvalid by the Court of Appeals.There should be no reason, in the light that the executor isthe continuing personality of the testator 34 and that a judgmentmay be amended to conform to the actual state of facts,35 that acourt should not be justified in allowing the amendment nunc protunc so that the executor can settle the estate of the deceased inthe most expedient manner possible. There would be little reasonin holding that the executor must establish his right to possessionof the property when the right of the deceased has been alreadyestablished and he is that person in the eyes of the law.33. 305 N. Y. 159. lII N. E. 2d 429 (1953).34. C. P. A. § 84, "In the case of the death of a sole plaintiff or a sole defendant,if the cause of action survives or continues, the court, upon a motion, must allow orcompel the action to be continued by or against his representative or successor in inter-est"; see also § 557 (3), "Where the adverse party has died since the making of theorder or the rendering of the judgment appealed from or where the judgment appealedfrom was rendered after his death, in a case prescribed by law, an appeal may be takenas if he were living, but it cannot be heard until the heir, devisee, executor or adminis-trator, as the case requires, has been substituted."35. Herpe v. Herpe, 225 N. Y. 323, 122 N. E. 204 (1919); followed in Core v.Hoffman, 256 N. Y. 254, 176 N. E. 383 (1931) ; see also, C. P. A. § 105.113

Decedent Estates—Settlement for After-born Children

https://digitalcommons.law.buffalo.edu/cgi/viewcontent.cgi?article=4389&context=buffalolawreview

Decedent Estates—Settlement for After-born Children

Abstract

Similar works

Full text

Available Versions

Digital Commons @ University at Buffalo School of Law