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Tavshanjian v. Abbott

Supreme Court of New York, Appellate Division

March 19, 1909

TAVSHANJIAN ET AL.
v.
ABBOTT ET AL.

Appeal from Special Term, New York County.

Action by Arax H. Tavshanjian and others, individually and as executors of Hovhannes S. Tavshanjian, deceased, against Harrison B. Abbott and others, for the construction of decedent's will. From a decree of the Special Term ( 59 Misc. 642, 112 N.Y.Supp. 583), defendants Nemzour Alyanakian and others appeal. Modified and affirmed.

[115 N.Y.S. 939] Charles W. Sinnott, for appellants.

George S. Kebabian, for respondent executors.

Edwin C. Dusenbury, guardian ad litem, for infant respondents.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, McLAUGHLIN, and SCOTT, JJ.

INGRAHAM, J.

The plaintiffs' 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 legacies 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 hold the same until his son arrived at the age of 21. 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 amount each one would have received under natural circumstances, and in that event I give, devise, and bequeath all the rest, residue, and remainder to the Armenia 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.

[115 N.Y.S. 940] By section 49, art. 3, tit. 1, c. 6, pt. 2 (1st Ed.) Rev. St., as amended by chapter 22, p. 40, 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 lifetime, 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 the 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 matter of doubt. Brush v. Wilkins, 4 Johns. Ch. 516.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 the basis 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 ninth 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 ...


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