This appeal presents the question whether children, born after the making by their father of a will, which gave all of his estate to certain other designated persons, shall, upon his death, nevertheless, be entitled to such shares therein as would have been theirs had he died intestate. The testator, whose will has been judicially construed, died in 1907. In 1895, he had made a will, which, after making numerous bequests to relatives and for charitable purposes, and, among them, one to his wife of $50,000, in lieu of dower, gave to her the residue of his real and personal estate. At the time of the execution of the will, he was married and had no child. Subsequently, a son was born and, thereafter, he executed a codicil, which, after revoking certain legacies in the will and making some changes, immaterial here, gave to the son a legacy of $50,000 and provided as follows: "Ninth. 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 amounts each and every one of my legatees would have received under natural circumstances, and in that event I give, devise and bequeath all the rest, residue and remainder to the Armenian Hospital of the St. Saviour, in Constantinople, Turkey, absolutely."
In this clause occurs the only mention by the testator in will, or codicil, of the words "child," or "children." After the execution of the codicil, this son died and two daughters were born, who survived the testator. The testator, then, died and the courts below have held that the daughters were entitled to receive from the legatees, proportionately, so much of the legacies as would give them two-thirds of the personal estate of the father and, if the widow accepts the bequest of $50,000 in lieu of dower, to take all of the real estate, but, otherwise, subject to her dower right.
The statute, whose provisions have been held to cover the *Page 377 case of the children born after the making of the will, reads: "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 to them by such will." (R.S., part 2, ch. 6, title 1, art. 3, sec. 49, as amended by Laws of 1869, ch. 22, sec. 1.)
What difficulty may arise in the application of the statute is in the meaning to be given to the language "neither provided for, nor in any way mentioned in such will." These afterborn children are not provided for and if they are not mentioned, in the sense that their birth is referred to by the testator as an event comprehended within his testamentary provisions, then they will take their proportionate share of his estate. They would take under the provisions of the statute and not subject to any of the provisions of the will. (Smith v. Robertson, 89 N.Y. 555.) Is it possible to read, in a provision of the will, which "in the event of the death of myself, (the testator), wife and children at one and the same time, through some accident, or otherwise," doubles the bequests and gives the residue to a hospital, an intent not to provide for afterborn children? I think not. The mention of children is not such as to convey any idea of a purpose not to provide for those who might be born thereafter. We have approved of a construction of the statute, that "it is not sufficient that the will should show that the testator had in mind the possibility of children born after the making of the will. The child will take, unless it is mentioned in some way, or included in some class that is mentioned." (Stachelberg v.Stachelberg, 124 App. Div. 232, 234; affd. on the opinion below, 192 N.Y. 576.) This testator was contemplating the *Page 378 possibility of some disaster terminating the lives of his family simultaneously and it is quite plain that it was not the birth thereafter of children, which was in his mind, nor a provision, which was to exclude them from any share of his estate. The statutory provision was derived from a rule of the civil law, which, upon the subsequent birth of a child, unnoticed in the will, annulled the will. It is based upon the strong presumption of an oversight, or an unintentional neglect of the testator to provide for those who have a natural and moral claim to a provision for their support out of their father's property. It was not intended to contravene the policy of our law to give to every one, competent to make a will, the right absolutely to control the disposition of his estate; it was intended to provide a rule, by which an intent to disinherit must appear from the will itself. (Brush v. Wilkins, 4 Johns. Ch. 506.) As it was said by the chancellor in Brush v. Wilkins, so it may be said here, that, if this will was to prevail, it would be the case of the testator's only children left destitute and without any provision, under a will of a man of large fortune disposing of his whole estate.
If there were any doubt as to the construction to be given to this will it should be resolved in favor of the testator's children, upon the soundest principles of justice. I think that no doubt does arise, upon a fair consideration of the will, and that there is nothing to suggest an intention not to make provision for unborn children.
The judgment below was right and it should be affirmed, with costs to all parties appearing by counsel, to be paid out of the estate.
CULLEN, Ch. J., WERNER, WILLARD BARTLETT, HISCOCK, CHASE and COLLIN, JJ., concur.
Judgment affirmed. *Page 379