In re the Estate of Faber

Kimball, J.

This appeal presents the question of the rights of an after-born child in the estate of her father and an interpretation of section 26 of the Decedent Estate Law. The testator died April 6, 1950. His will was executed July 30, 1946. By this instrument he made certain provisions for his wife and his daughter, Adell Faber. Nearly three years after the making of the will and on June 27, 1949, another daughter, Sandra, was born. Sandra was neither provided for nor mentioned in the will and no further will or codicil was executed by the testator. On September 17, 1949, however, the testator executed an instrument by which he made his two daughters equal beneficiaries in certain policies of life insurance, all but one of which he had secured prior to Sandra’s birth. One policy, in the amount of $5,000, had been taken out by him on August 1, 1949, and the sole beneficiary of such policy had originally been his after-born daughter, Sandra. The question then is whether the testator has left Sandra, the after-born child, “ unprovided for by any settlement ” as this clause is used in said section 26 of the Decedent Estate Law or whether, on the other hand, Sandra may demand and receive her intestate share of her father’s estate. The Surrogate has held that Sandra, the after-born daughter, has no right to take her intestate share as against the will. With this determination we agree.

We are all in agreement with the view expressed in the dissenting opinion that the “ settlement ” mentioned in section 26 is not to be considered as only one made by a testator prior to or contemporaneous with the execution of the will. We- disagree with the learned opinion of the Surrogate in Matter of Stern (189 Misc. 639) and hold that the “ settlement ” referred to in the section may be a settlement provided by a testator for an after-born child subsequent to the execution of his will. We think also that a provision made by a testator by means of policies of life insurance, payable to the after-born child is within the definition of the settlement required by the section and within the intendment of the Legislature. It is well to point out that the analogy between section 26 and section 35 of the Decedent Estate Law, prior to the 1932 amendment, is far from complete and that authorities construing the latter section may not be controlling as to section 26.

The point of departure between the views of the majority and the views of the minority in the instant case is narrow. We all agree that the courts may determine whether a certain transaction entered into by the testator was, in fact, the ‘ ‘ settlement ” provided in section 26 or whether some donation was merely a gift or expression of parental affection. However, when, as here, the father of the after-born child has provided for such child by a settlement in the way of life insurance benefits accruing upon the death of the testator and in a substantial amount, we cannot say that it was not his intention to so provide in lieu of making a new will or codicil in which he had merely to mention the child to deprive her of her intestate share. Whether the settlement is “ adequate ” is for the testator to say, not the • court. Section 26 uses the words “ any settlement ”. Nothing is said about the adequacy of the settlement. The child, Sandra, was not left “unprovided for by any settlement”. (See McLean v. McLean, 207 N. Y. 365; Matter of Froeb, 143 Misc. 660, and Matter of Stone, 200 Misc. 639.)

Were the courts to decide whether a settlement is adequate or not according to their conception of what is just or equitable under a certain set of circumstances would result in the making of a new will for a testator. We agree with the conclusion reached by the Surrogate in this case. The decree should be affirmed.