In re Proving the Will of Gaffken

Will — marriage and birth of issue after making of will — law in effect at death of testator controls — where provision has been made for widow will is valid as to her.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 10, 1921, admitting to probate the will of Arthur H. Gaffken, deceased, subject to the rights of testator’s son born after the making of said will. On June 12, 1914, testator made the will probated, in which he gave one-third of his estate to Mary Louise Krom, and the remaining two-thirds to his mother, Adelheid Gaffken, and appointed executors. On June fourteenth he married Mary Louise Krom, to whom on February 3, 1916, was born a son.. Testator died December 10, 1920, leaving as surviving his mother, wife and son. Under the law in force when the will was made revocation was inferred by subsequent marriage and birth of issue. Under the law in effect at. testator’s death revocation was inferred only as to wife or issue for whom no provision was made unless the will showed intention not to make such provision. The question was as to which law applied, the one in force when the will was executed or that in force at testator’s death. The Appellate Division held that the meaning and effect of a will was governed by the law in force at testator’s death and that the will was valid as to the wife for whom provision had been made.