Van Voorhis v. Brintnall , 30 N.Y. Sup. Ct. 260 ( 1880 )

■Gilbert, J. :

The question respecting the validity of the marriage of the parents of the infant defendant, Rose Yan Yoorhis, was decided in Marshall v. Marshall (2 Hun, 238). Upon the principle of stare decisis we cannot do otherwise than follow that decision. [Harris v. Clark, 2 Barb., 101; People v. Tredmay, 3 Id., 470; Loring v. United States Vulcanized, &c. Co., 30 Id., 644; Barnes v. Ontario Bank, 19 N. Y., 165.) The consequence is that said infant is not included in the term “children” in the second clause, nor in the term '“ child ” in the sixth clause of the testator’s will.

The death of Barker Yan Yoorhis, in the life-time of the widow of the testator, leaving issue, has left the income from that portion ■of the testator’s property which was devised to the executors in trust for his benefit (except $400) undisposed of, and such income belongs to the persons presumptively entitled to the next eventual •estate in such property. (1 R. S., 726, § 40 ; Id., 773, § 2.) Those persons are his widow and legitimate children. The judgment, we think, correctly determined their interests. It is objected that Elizabeth Van Voorhis is not entitled as widow to anything besides dower in her former husband’s real estate. She is still, in contemplation of law as respects this controversy, his widow, notwithstanding the decree of divorce in her favor and her subsequent re-marriage. [Wait v. Wait, 4 N. Y., 95.) Consequently the statute of distributions applies to her in like manner as the statute of dower. The former statute gives one-third part to the widow, .and the latter provides that a widow shall be endowed of one-third part. The estate devised to Barker Yan Yoorhis was a vested remainder. Upon his deatli his widow became entitled to dower in that estate and to one-third of his personal estate. One-third of the income from each description of property, therefore, belongs to her.

The judgment should be affirmed, with costs to all parties to this' .appeal, to be paid out of the trust estate.

Dykman, J., concurred; Barnard, P. J., not sitting.

Judgment affirmed, costs to all parties out of trust estate.