SCOTT, J.:
The plaintiff acquired from defendant, by a full covenant and warranty deed, a plot of land in the city of New York, and now seeks under the covenant for further assurance, either a further conveyance or a return of a part of the purchase price.
The defendants derived their title through deeds from Charles C. Nichols, as administrator with the will annexed of Prosper L. Gilbert, deceased, and from Mary R. Gilbert, the widow and sole devisee of said Prosper L. Gilbert. The basis of plaintiff's claim is that after Prosper L. Gilbert had made his will two children were born to him; that they were not provided for or in any way mentioned in his will, and consequently were entitled to succeed to the same portion of their parent's estate as would have descended or been distributed to them if he had died intestate.
If this claim is sustained Mary R. Gilbert, the widow, to whom all the real estate was devised, took only one-third of it, and the other two-thirds passed to the after-born children and was not included in the deed from defendants to the plaintiff.
Prosper L. Gilbert made his will in 1862, when he had living his wife, Mary R. Gilbert, and one child, Frederick L. Gilbert. Two other children were subsequently born, Samuel V. Gilbert in 1864 and Arthur E. Gilbert in 1868. The significant clauses of the will read as follows:
"Know all men by these presents that I, Prosper L. Gilbert, of the city of Albany, mindful of the uncertainty of life and being desirous of making a just distribution of my property among the members of my family, do make, ordain and declare my last Will and Testament as follows:
" First. Having full confidence in the discretion and justice of my beloved wife Mary, I give, devise and bequeath all my estate, real and personal, of every description whatsoever to my said wife Mary, to have and to hold the same to her and to her heirs and assigns forever, subject, however, to the payment of all my just debts and liabilities."
He appointed his wife executrix, and gave her power to sell, lease or mortgage his real estate. The statute in force at the time this will was made provided as follows: "Whenever a testator shall have a child born after the making of his will, either in his life-time or after his death, and shall die leaving such child, so after born, unprovided for by any settlement and neither provided for nor in any way mentioned in his will, every such child shall succeed to the same portion of the father's real and personal estate as would have descended or been distributed to such child if the father had died intestate, and shall be entitled to recover the same portion from the devisees and legatees, in proportion to and out of the parts devised and bequeathed to them by such will." (2 R.S. 65, § 49.)
At common law a revocation was generally effected by subsequent marriage and the birth of issue, but not by the subsequent birth of a child only. ( Brush v. Wilkins, 4 Johns. Ch. 506; Smith v. Robertson, 24 Hun, 210.) The civil law, which was much more disposed to find implied revocation, applied a different rule, which seemingly rested upon the presumed oversight of the parent ( Brush v. Wilkins, supra), for it also obtained when living children were left unprovided for, although any provision, however slight, was deemed to rebut the presumption of inadvertent omission. It was, as we consider, the principle of the civil law that was intended to be engrafted upon our law by the statute above quoted, the object being not to secure equality of distribution, but to guard against inadvertent or unintentional disinheritance, or, as the revisers expressed it in their notes, a "probable oversight." Therefore, it was provided, in order to sustain a will against the claims of after-born children, that provision must have been made for them, or that they must have been in some way mentioned in the will, either provision or mention being sufficient If, therefore, it can be seen or reasonably presumed from the terms of the will itself that the testator had in mind the probability that children might be born after the will was made, and provided with that contingency in mind, the statute will be satisfied and the will sustained. We think it apparent that Prosper L. Gilbert made his will with a view to the possibility that there might be after-born children, and that in a legal sense he must be considered as having mentioned them in his will. It is as if he had said: "Because I have full confidence in the discretion and justice of my wife I leave all my estate to her to the end that there may be secured a just distribution of my property among the members of my family." He knew, of course, that his will would become effective only upon his death, and it was a just distribution at that time which he wished to insure. The word "family" which the testator uses to designate those to whom distribution is to be made includes, by every definition, children. Hence the meaning and effect of his will were to give the property to his wife to insure its just distribution at his death among those who should then constitute his family, that is, the children then surviving whether born before or after the execution of the will. Indeed the very method adopted by the testator to insure a just distribution after his death implies an expectation on his part that his "family" might then be differently constituted from the manner in which it was constituted when the will was made, for if he had had in mind no probability or possibility of after-born children he could himself have made a "just distribution" and not have left it to his wife to make. Our conclusion is that the after-born children were "mentioned" by the testator in his will, and consequently that the wife took the whole estate under the devise to her.
It follows that there must be judgment for the defendants, with costs.
McLAUGHLIN, LAUGHLIN and HOUGHTON, JJ., concurred; PATTERSON, P.J., dissented.
Judgment ordered for defendants, with costs.
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