McLean v. McLean

• Decision Date: 25 February 1913
• Citation: 101 N.E. 178,207 N.Y. 365
• Parties: McLEAN et al. v. McLEAN et al.
• Court: New York Court of Appeals Court of Appeals

207 N.Y. 365

101 N.E. 178

McLEAN et al.

v.McLEAN et al.

Court of Appeals of New York.

Feb. 25, 1913.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Henry G. McLean, an infant, and another as administratrix, against Mary McLean and others. From an order of the Appellate Division (152 App. Div. 479,137 N. Y. Supp. 341) reversing a judgment overruling a demurrer to the complaint, plaintiffs appeal. Order of Appellate Division as to the first cause of action affirmed, and, so far as it reverses judgment overruling demurrer to second cause of action, reversed, and judgment ordered for plaintiff on demurrer.

William H. Good, of Brooklyn, for appellants.

M. F. McGoldrick, of Brooklyn, for respondents.

HISCOCK, J.

This action is brought for the partition of two pieces of real estate situate in the borough of Brooklyn; one being known as 101 Sixth avenue and as the ‘first parcel’ herein involved, and the other piece being known as 453 Pacific street and as the ‘second parcel.’ The defendants challenge the sufficiency of the complaint on the ground that it appears from the allegations thereof that the plaintiff has no interest whatever in said lands. The justification for this challenge is to be found, if at all, in the construction and effect of two wills of which only one affects the first piece of real estate and of which both affect the lastmentioned piece. In the end all other questions and considerations lead to the decisive one whether an infant known as Henry McLean, Second, and who died at the age of four days, acquired either by devise or by inheritance a descendible interest in these pieces or either of them. It is conceded that, if he did, such interest passed by inheritance to a surviving sister, Marie McLean, and from said sister by inheritance to the plaintiff, who was her half-brother by a common father. If said infant did not acquire any such interest in said premises, it is equally conceded that plaintiff has no interest on which he can bring this action, for in that case, as will more fully appear, whatever interest plaintiff's half-sister, Marie, acquired, came directly through an ancestor on her mother's side, and this plaintiff having a different mother would come under the provision of the Decedent Estate Law (Consolidated Laws, c. 13, § 90), which reads as follows: ‘Relatives of the half blood and their descendants, shall inherit equally with those of the whole blood and their descendants, in the same degree, unless the inheritance came to the intestate by descent, devise or gift from an ancestor; in which case all those who are not of the blood of such ancestor shall be excluded from such inheritance.’

[1] I shall take up first the consideration of what has been known as the ‘first parcel,’ situated on Sixth avenue.

Catherine Maher McLean, mother of Marie and the infant Henry, already mentioned, acquired by purchase and died seised of said premises. She executed a will which in time was duly probated, and which contains the following provisions of importance in this controversy:

‘First. I give, devise and bequeath after the payment of my lawful debts and funeral expenses, all my estate both real and personal of every nature and kind soever and wheresoever situate to my beloved husband Henry C. McLean, M. D., to have and to hold the same and to use and enjoy the rents, income, issues and profits thereof during his natural life; on his death, I give, devise and bequeath the same to my issue him surviving.

‘Second. In case at the death of my beloved husband there shall be no issue of mine him surviving or no descendants of such issue, then I give, devise and bequeath all of my estate both real and personal to my cousins Sarah Maher, Annie Maher, Margaret Maher and Mary Maher of Washington, D. C.’

After the execution of said will, the two children, Marie and Henry, Second, were born. They were ‘after-born’ children, although the mother was pregnant with the older one when the will was executed. The testatrix died leaving her surviving both of them and also her husband mentioned in the will. The child Henry, Second, as already stated, died four days after his birth and of course intestate. Next in events of consequence, the husband married a second wife by whom was born the plaintiff, and, after the latter's birth, first the said father died, and then the other child of the testatrix, Marie, died, unmarried and intestate. As already outlined, the question is whether the infant son of the testatrix, Henry, Second, took an interest in this parcel of real estate which passed by inheritance to his sister Marie, and on the latter's death to her half-brother, the plaintiff.

It is undisputed that the infant Henry, Second, took no descendible interest under the terms of the will, for that clearly provided for a life estate in the husband, Henry C. McLean, with remainder to such issue of the testatrix as should survive him, and which contingency of survival did not befall the child Henry. If we should assume that each child of the testatrix took a vested remainder subject to the father's life estate, this remainder was divested by death during the father's life.

Moved by this failure of any provision of practical value in the will for the child Henry, the appellant insists that there is no sufficient mention of or provision in the will for him as an after-born child, and that therefore he took an interest in said lands by inheritance under the familiar provisions now found in section 26 of the Decedent Estate Law, and which read as follows: ‘Whenever a testator shall have a child born after the making of a last will, * * * and shall die leaving such child, so afterborn, 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.’ There was no settlement, and consequently the inquiry is whether the testatrix in her will ‘neither provided for nor in any way mentioned’ him, and in the discussion of that question I shall take that view of the will which appellant regards as the more favorable to him, namely, that it created for the testatrix's children merely a contingent remainder rather than a vested remainder subject to divestment by death during the life of the father.

The fundamental object of the statute which has been quoted is to guard and provide against such testamentary thought-lessness and lack of vision as prevent a testator from contemplating the possibility of after-born children and taking such possibility into account in framing a scheme for the testamentary disposition of his property. For reasons which at once commend themselves to our sense of justice it has been determined, and by statute provided, that if a testator does thus overlook and fail to consider the possibility and claims of those who, if born, will be the natural objects of his bounty, the law will provide for them in the distribution of his estate outside of the terms of his will. But, on the other hand, it has never been held or assumed, in this state at least, that it was the intention of the Legislature by this statute to compel, regulate, or control testamentary provision even by a parent for children, provided that in the disposition of his property he looked into the future and foresaw and took into account its possibilities in the way of after-born children, and the only proof necessary or permitted to establish sufficient testamentary conception in any case is the requirement in the alternative of mention or provision which has been quoted. While there are surprisingly few decisions in the appellate courts of this state interpreting these requirements, these have nevertheless directly settled some...