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Smith v. Robertson

James M. G. Smith, as General Guardian, Etc., Respondent, v. Jonathan C. Robertson Et Al., Appellants

Smith v. Robertson, 89 N.Y. 555 (1882)
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Court
New York Court of Appeals · State Highest Courts
Decided
October 10, 1882
Judges
Bapallo
Citations
89 N.Y. 5551882 N.Y. LEXIS 257
Cited by 21
Headnotes
Where a testator, whose will authorized his executor to sell all his real and personal estate, and dispose of the proceeds, after the making thereof, had a child born, and thereafter died leaving said child his only heir at law, and “ unprovided for by any settlement, and neither provided for nor in any way mentioned in his will,” held, that under the statute (2E. S. 65, § 49), the whole real estate descended to the child the same as if the father had died intestate ; that he did not take under the will or subject to any of its provisions ; and that where the executor sold the real estate, the remedy of the child was not confined to a pursuit of the proceeds of sale, but that she could maintain ejectment to recover the same. Where, however, it appeared that the real estate was at the time of the testator’s death subject to a mortgage which the grantee paid, held, that the judgment should be without prejudice to his right to a lien for the amount so paid, or to be subrogated to the rights of the mortgagee.
Summary
Appeal from order of the General Term of the Supreme Court, in the second judicial department, made February 15, 1881, which reversed a judgment in favor of defendant, entered upon a decision of the court on trial without a jury, and granted a new trial. (Reported below, 24 Hun, 210.) This action was brought to recover possession of two lots in the village of Middletown, Orange county, of which John J. Scott died seized. In 1862 he made a will by which his executor was authorized to sell all his real and personal estate, and pay the proceeds to his widow. In April, 1864, he had a child born, a daughter in whose interest this action was brought. In May, 1864, the testator died. The daughter “ was unprovided for by any settlement, and neither provided for, nor in any way mentioned in such will.” Defendants claimed the premises under a deed from the executor; they purchased subject to a mortgage which they subsequently paid.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Bapallo

Bapallo, J.

We are of the opinion that on the death of John J. Scott, the testator, the real estate in controversy descended to his infant daughter, under the provision of 2 R. S. 65, § 49, in the same manner as it would have descended if the father had died intestate, and that the infant does not take under the will, or subject to any of its provisions.

The statute, instead of declaring the entire will revoked by the subsequent birth of issue for whom no provision is made, renders, it inoperative as to that portion of the testator’s estate which, if he had died intestate, would have descended, or been distributed to the after-born child. When, as in this case, there is no other heir, the whole of the real estaté descends to the child, as it would have done had there been no will, subject only to the dower of the widow, and the power of sale contained in the will fails. The remedies given by the statute against devisees, to recover a portion of the property where only a portion descends to an after-born child, do not operate to subject the estate of such child to a power of sale contained in the will, or to confine his remedies to a pursuit of the proceeds of sale. He is entitled by the plain terms of the statute to recover the same portion of the corpus of the estate which he would have been entitled to had his father died intestate.

The order should be affirmed, and judgment absolute rendered against the defendants on their stipulation; but as it appears that, at the time of the death of the testator, the real *559 estate was subject to a mortgage which the purchaser discharged, the judgment should be without prejudice to his rights to a lien for the amount paid to discharge the mortgage, or to be subrogated to the rights of the mortgagee.

All concur.

Order affirmed and judgment accordingly.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 21 cases

View all citing references →
1885–1886: 21891–1892: 11893–1894: 11895–1896: 11899–1900: 11907–1908: 11911–1912: 21913–1914: 21915–1916: 11919–1920: 11925–1926: 11931–1932: 11937–1938: 11951–1952: 21953–1954: 11961–1962: 12003–2004: 118852026peak 1885 · 2

Relies on it most ⓘ

  1. In re the Estate of Smith202 Misc. 64 (N.Y. Sur. Ct. 1951)
  2. Obecny v. Goetz116 A.D. 807 (1907)
  3. Newman v. Waterman23 N.W. 696 (Wis. 1885)
  4. In re Murphy39 N.E. 691 (N.Y. 1895)
  5. Van Wickle v. Van Wickle44 A. 877 (N.J. Ct. of Ch. 1899)
  6. Chicago, B. & Q. R. Co. v. Washerman22 F. 872 (U.S. Cir. Ct. 1885)

Most recent

  1. In re the Estate of Nelson195 Misc. 2d 652 (N.Y. Sur. Ct. 2003)
  2. In re the Estate of McGraw29 Misc. 2d 555 (N.Y. Sur. Ct. 1961)
  3. In re the Accounting of Vicedomini285 A.D. 62 (1954)
  4. In re the Estate of Smith202 Misc. 64 (N.Y. Sur. Ct. 1951)
  5. In re the Probate of the Will of Heckel200 Misc. 52 (N.Y. Sur. Ct. 1951)
  6. Conroy v. Conroy110 S.W.2d 568 (Tex. 1937)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

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