App. Div. 254]

Second Department, June, 1921.

six daughters of Oliver Pearsall who claims to have been the son of Anthony Pearsall.

Hallett Pearsall, the original ancestor, owned about eight acres of farm lands in Lynbrook, Hempstead, along the south side of the Old Jamaica and Merrick plank road. He died in 1830, intestate. But it does not appear that he died seized of this land. It is assumed that he left four sons, David, Anthony, Peter and Oliver, which inference is supported by a deed from Peter Pearsall and wife to David Pearsall, dated July 20, 1848, purporting to convey an equal undivided quarter interest in the premises in suit, described as formerly belonging to Hallett Pearsall, deceased.

The plaintiffs' theory depends on showing that a quarter interest passed to the son Anthony; that Anthony died intestate about July, 1859, seized of this quarter interest, leaving three brothers, David, Oliver and Peter, his heirs at law.

Plaintiffs as representing the heirs of Oliver Pearsall (who is claimed to have had one undivided twelfth) thus claim to have each an undivided one-seventy-second share in these premises.

The court found that since the 1848 conveyance above, David Pearsall occupied the premises and, up to January 7, 1891, lived thereon, and for a portion of that time had a store thereon.

During that period (1848-1891) David Pearsall rented portions of the premises to defendants Morris Mott, Julius Mott and others, and received the rentals thereof himself. Another finding is that the premises were inclosed by a fence during the period 1848-1891 also that in this period David paid the taxes assessed against said premises: There is also a negative finding that during this period Oliver Pearsall, plaintiffs' father, never claimed any interest in said premises nor exercised any dominion thereover; that during this time David Pearsall was generally reputed to own these premises.

On January 7, 1891, David Pearsall executed a full covenant deed to the defendants Mott of about four acres of these premises, which deed was recorded on January 8, 1891.

On February 12, 1891, David Pearsall conveyed to the Motts

Second Department, June, 1921.

[Vol. 197 by full covenant deed dated on that day, also duly recorded, another portion of these premises. About February 16, 1891, he conveyed to the Motts the remainder of these premises, which conveyance was recorded. Thus, on or before February 16, 1891, he had asserted acts of exclusive ownership as to all this property against any cotenants, which acts may be deemed to set running the Statute of Limitations. (See Code Civ. Proc. § 369 et seq.) Oliver Pearsall died in 1902. At that time all six plaintiffs were of full age, so there was no break in the running of the Statute of Limitations. The present action was begun October 10, 1919, over twenty-eight years after these conveyances.

Since 1904 streets have been laid out in the premises, fourteen or fifteen dwellings erected there. During these years the defendants, who have lived within a few miles of the property, have made no claim, and have asserted no rights or interest in same, until 1910, when actions were brought and dropped for lack of prosecution.

The court found that the defendants' possession and that of their predecessors in interest "since the year 1891, has been open, exclusive, hostile, notorious and adverse." The judgment and decision of the learned court at Special Term should, therefore, be sustained upon the following grounds, namely: 1. The failure to prove that Hallett Pearsall died seized of these premises. 2. The omission to show that either plaintiffs' father, Oliver Pearsall, or their grandfather, Anthony Pearsall, was an heir at law of Hallett Pearsall. 3. The open, notorious, adverse possession of defendants and their predecessors, maintained since 1891.

Hence I advise that the judgment be affirmed, with costs.

Present BLACKMAR, P. J., MILLS, PUTNAM, KELLY and JAYCOX, JJ.

Judgment unanimously affirmed, with costs.

App. Div. 257]

Second Department, June, 1921.

In the Matter of Proving the Last Will and Testament of ARTHUR HENRY GAFFKEN, Deceased.

MARY LOUISE GAFFKEN, Appellant; JOHN C. BORGES, Respondent.

Second Department, June 10, 1921.

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Wills - will made in 1914 with devises to woman whom decedent subsequently married and to another but with no provision as to issue death of testator in 1920 leaving widow and child — will not revoked by subsequent marriage — Decedent Estate Law, § 35, as amended by Laws of 1919, chapter 293, applicable. Testator executed his will in 1914 by which he gave one-third of his estate to the woman who two days later became his wife, and two-thirds to his mother, and in 1920 died leaving him surviving his widow and one son. Held, that section 35 of the Decedent Estate Law, as amended by chapter 293 of the Laws of 1919, providing that if after the making of any will such testator marries, and the husband or wife, or any issue of such marriage, survives the testator, such will shall be deemed revoked as to them unless provision is made for them, or they are mentioned in such way as to show an intention not to make such provision, applies in determining the meaning and effect of the will;

That the will may be read as having provided for the widow by the antenuptial bequest and, therefore, it was not revoked as to her by the testator's subsequent marriage.

APPEAL by the contestant, Mary Louise Gaffken, from a decree of the Surrogate's Court of Kings county, entered in the office of the clerk of said court on the 21st day of February, 1921, admitting to probate the paper propounded as the last will and testament of Arthur Henry Gaffken.

The main question turns on the change in the Decedent Estate Law (§ 35, as amd. by Laws of 1919, chap. 293) as to the effect of a marriage of the testator and birth of a son after execution of a will.

Herbert Parsons, for the appellant.

Harry W. Kouwenhoven, for the respondent.

PUTNAM, J.:

On June 12, 1914, testator made the will probated, in which he gave one-third of his estate to Mary Louise Krom, and APP. DIV.- VOL. CXCVII.

17

Second Department, June, 1921.

[Vol. 197 the remaining two-thirds to his mother, Adelheid Gaffken, and appointed executors. On June fourteenth (two days later) he married this Mary Louise Krom, to whom on February 3, 1916, was born the son, William Eugene. Testator died December 10, 1920, leaving as surviving his mother, wife and son. No question is made as to the son, since he stands with the full rights as if the father died intestate.

Before September 1, 1919, there survived in New York an old distinction between husband and wife as to revocation of wills. As to a man, his marriage with birth of issue, worked an inferential revocation of a will executed before marriage. (Decedent Estate Law, § 35; re-enacting R. S. pt. 2, chap. 6, tit. 1, art. 3 [2 R. S. 64], § 43.) As to an unmarried woman, marriage alone revoked a prior will. (Decedent Estate Law, § 36; re-enacting R. S. pt. 2, chap. 6, tit. 1, art. 3 [2 R. S. 64], § 44; Forse & Hembling's Case, 4 Coke Rep. 61.) This disparity was removed in England by the Statute of Wills (7 Wm. IV & 1 Vict. chap. 26, § 18, taking effect in 1838). (See 3 Jarman Wills [Am. ed. 1881], p. 783.) This sex equality as to revocation did not have full recognition in New York until 1919. The essential difference, however, is the effect of this inferential revocation. The earlier authorities regarded marriage and issue (or without issue, in case of a woman) as countermanding the entire will. Thus in Forse & Hembling's Case (supra) the court said: "This taking of husband being, in the case at bar, her proper act, shall amount to a countermand in law." (61 b.)

The history of the gradual recognition of the doctrine of a presumed revocation is shown in Brush v. Wilkins (4 Johns. Ch. 506).

By the law in force in 1912 (Decedent Estate Law [Consol. Laws, chap. 13; Laws of 1909, chap. 18], § 35), which took effect on February 17, 1909, revocation was inferred from marriage and birth of issue "unless provision shall have been made for such issue by some settlement, or unless such issue shall be provided for in the will, or in such way mentioned therein, as to show an intention not to make such provision." The 1919 amendment with more exact discrimination left only a partial revocation. (Laws of 1919, chap. 293.) It read:

1

App. Div. 257]

Second Department, June, 1921.

"§ 35. Revocation by marriage. If after making any will, such testator marries, and the husband or wife, or any issue of such marriage, survives the testator, such will shall be deemed revoked as to them, unless provision shall have been made for them by some settlement, or they shall be provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and such surviving husband or wife, and the issue of such marriage, shall be entitled to the same rights in, and to the same share or portion of the estate of said testator as they would have been, if such will had not been made. No evidence to rebut such presumption of revocation shall be received, except as herein provided." This act of 1919 also repealed section 36 of the Decedent Estate Law, which provided that "A will executed by an unmarried woman, shall be deemed revoked by her subsequent marriage."

Mrs. Gaffken, the appellant, would naturally benefit under the earlier wording of section 35, in force when the will was executed. The will did not provide for issue, and made no mention thereof, and showed no intention to disinherit. This would lead to a complete revocation according to the earlier statute.

By act of 1919 this is otherwise, because the will may be read as having provided for the widow, by the ante-nuptial bequest. Which law prevails -the statute in force at time the will is executed, or that at testator's death?

Although a will is ambulatory, so long as the testator lives, and only becomes effective at his death (Voluntas est ambulatoria usque extremum vitae exitum), there is respectable authority for the view that the law in force at time of execution controls the requirements of formalities and attestation. (Packer v. Packer, 179 Penn. St. 580.)

But for the meaning and effect of the will we are to look to the law at time of the testator's death. (Wynne's Lessee v. Wynne, 2 Swan [Tenn.], 405 [1852]; Price v. Taylor, 28 Penn. St. 95, 107; Obecny v. Goetz, 116 App. Div. 807, 808; Matter of Cutler, 114 Misc. Rep. 203; Matter of Schuster, 111 id. 534; Lorieux v. Keller, 5 Iowa, 196.) Otherwise new legislation would never begin to take effect until after the prior wills had been outlived.