Neaves v. Neaves , 2 Dem. Sur. 230 ( 1883 )

The Surrogate.

This is an application, under § 2717 of the Code, for the payment of a legacy.

The will of the testatrix provides that her brother George shall receive the interest on a certain investment of $7,000, “until his youngest child shall come of age,” at which time the principal sum is directed to be equally divided between her brother George and “his said children.”

The executor has interposed an answer to this petition, which is probably sufficient, within the decisions of Hurlburt v. Durant (88 N. Y., 121), and Fiester v. Shepard (92 id., 251), to necessitate a dismissal of this proceeding.

Even apart from this jurisdictional obstacle, there is another which would, of .itself, be fatal to the present application. It seems to be conceded that, when the testatrix died, in 1848, her brother George had but two children, of whom the petitioner was the younger; that he came of age more than twelve years since; that his father has now ten children, of whom the youngest is only ten months old. How many of these were living when the petitioner attained his majority is not disclosed. But if any of them were then in being, there is another question whose determination must precede distribution of the $7,000, besides the question whether the petitioner is the person whom the testatrix intended to indicate by the term “youngest child.” The children who were born after the death of the testatrix, and before the petitioner came of age, should be allowed opportunity, if they desire, to present their claims to a share of the fund in dispute.

Petition dismissed (Riggs v. Cragg, 89 N. Y., 479).