Summary
In Smith v. Robertson (supra) it was held that such a child might maintain ejectment, and upon the reasoning and force of that decision I think it clear that she can maintain this action.
Summary of this case from Obecny v. GoetzOpinion
Argued June 15, 1882
Decided October 10, 1882
William H. Stoddard for appellants. Charles H. Winfield for respondent.
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 estate 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 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.