Legal Opinion

Holbrook v. Holbrook

Appellate Division of the Supreme Court of the State of New York

Decided July 27, 1920PublishedCited by 11 opinions

Appeal by the defendants, Warren Holbrook and others, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 10th day of April, 1920, overruling defendants’ demurrers to the complaint. The issue of law herein was brought on and tried as a contested motion pursuant to section 976 of the Code of Civil Procedure..

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Appeal by the defendants, Warren Holbrook and others, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 10th day of April, 1920, overruling defendants’ demurrers to the complaint. The issue of law herein was brought on and tried as a contested motion pursuant to section 976 of the Code of Civil Procedure.. This suit was for a partition of certain real estate of the late Elliot H. Holbrook, who died on March 8, 1919, leaving a widow, Elizabeth M. Holbrook, who gave birth to the plaintiff on August…

1Opinion of the Court

Putnam, J.:

To maintain this suit plaintiff has to show that she, as an afterborn child, has been “neither provided for, nor in any way mentioned ” in her father’s will. The case of Stachelberg v. Stachelberg (124 App. Div. 232; affd., 192 N. Y. 576) apparently influenced the disposition of this motion. In that case the will made no provision for any child unless the mother should die before the father, and leave issue, which necessarily excluded a child born after the father’s death. Mr. Holbrook, however, here provided for his leaving lawful issue. If his wife should survive him she was to…

2Cases cited3 opinions

  1. McLean v. . McLeanNew York Court of Appeals · 1913
  2. Stachelberg v. . StachelbergNew York Court of Appeals · 1908
  3. Stachelberg v. StachelbergAppellate Division of the Supreme Court of the State of New York · 1908

3Cited by11 opinions

  1. In re the Probate of the Last Will & Testament of DickNew York Surrogate's Court · 1922
  2. In re the Re-Probate of the Last Will & Testament of JonesNew York Surrogate's Court · 1929
  3. In re MulqueenAppellate Division of the Supreme Court of the State of New York · 1925
  4. In re the Estate of DoolingNew York Surrogate's Court · 1936
  5. In re the Probate of the Will of RadtNew York Surrogate's Court · 1957

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