In re the Probate of the Will of Marmor , 21 Misc. 2d 949 ( 1960 )

John D. Bennett, S.

The propounded instrument will be admitted to probate, it having been established that it was executed in the manner prescribed by section 21 of the Decedent Estate Law, and at the time of its execution the decedent was of sound mind and free from restraint.

Paragraph “ fourth ” of the will states: “ I am mindful of my children and make no provision for them in this my Last Will and Testament, knowing full well the love and affection that my wife franges has for our children, and that she will adequately provide for their maintenance and requirements, and for that reason make no bequest for my children.”

Apparently the child of the decedent born after the making of this will is mentioned within the requirements of section 26 of the Decedent Estate Law (Matter of Dooling, 158 Misc. 333; Matter of Green, 125 N. Y. S. 2d 278). Accordingly, no bond will be required for the protection of the after-born child at this time.

In view of the recent decision of the Appellate Division, Second Department, in Matter of Wenger (10 A D 2d 639), aside from preliminarily considering the question of the after born’s rights with regard to the necessity of a bond for his protection, any final determination under section 26 of the Decedent Estate Law must be relegated to such further proceeding as may be proper to adjudicate the rights of the after bom upon notice, and with an opportunity for all interested parties to be heard.

Settle decree on five days’ notice with three additional days if served by mail.