Bahr v. CooperBahr v. Cooper
The decedent died seized of three parcels of improved real estate situate in Hudson County. His wife survived him and had the right to elect whether to accept the bequest made by his will or claim dower in his real estate, but she is an incompetent and has been confined in a county institution for the treatment of mental diseases continuously since July 5th, 1945. A few months after the will had been admitted to probate the bill of complaint herein was filed by her duly appointed guardian setting up two causes of action, by the first of which complainant seeks the direction or instruction of this court whether she should accept for the incompetent widow the bequest given her by the will, in lieu of dower in the lands of which decedent died seized.
No election could be made until the will had been admitted to probate which was two and a half years after decedent‘s death. I note that the bill of complaint contains no claim on behalf of the widow for a share of rents which have accrued on decedent‘s real estate between the date of his death and the filing of the bill, or any prayer for accounting for rents either by way of dower or quarantine but such claims are argued in the briefs submitted and I deem it necessary that it should be determined whether any money is due the widow from those sources and all parties seem to desire that that should be done. Besides the matter of rent and quarantine has a bearing on the question of election.
Under the circumstances here present this court has the power and duty to instruct the complainant guardian to make
The extent of a widow‘s right of dower is the one-half part for her life of all real estate of which her husband died seized.
Pending contest over probate of decedent‘s will management of decedent‘s real estate was in the hands of an administrator pendente lite for 27 months and after the will was admitted to probate he paid over the balance in his hands to the executor and the executor took over the management. They as managers of the property and collecting rent therefrom are to be regarded as bailiff or trustee for the widow and against their receipts of rents they are, for the purpose of ascertaining the value of the widow‘s dower, entitled to credit for one-half of taxes, interest and payments on account of principal on a mortgage covering one of the parcels, repairs and other proper expenses. Shields v. Hunt, 39 N.J. Eq. 485; Lloyd v. Turner, 70 N.J. Eq. 425; Alt v. Kwiatek, 128 N.J. Eq. 469. Reports of rent receipts and of disbursements by the administrator and the executor (the latter covering a period of ten months) are in evidence in the cause.
One of the properties, 426 57th Street, West New York, is a two-family dwelling in which decedent and his wife occupied the first floor at the time of decedent‘s death and thereafter the widow remained in occupancy of that floor until she was removed to the county institution and that floor was then rented to a tenant who paid rent first to the administrator pendente lite and thereafter to the executor. By the statute,
To determine the question directly presented by complainant‘s first cause of action, namely the question of election between dower and bequest, it is necessary to ascertain what net rents will probably be derived from the land and the buildings erected on the three parcels of real property of which decedent died seized. The evidence shows that the rent from the second floor of 426 57th Street, West New York, from the time of decedent‘s death, was insufficient to pay the carrying charges of that property. When an election is made
The general rule applied in this court has been that a general legacy ordinarily does not draw interest until a year after testator‘s death, but the time was extended by
Having determined in favor of an election on behalf of the widow for the bequest under the will in lieu of dower, I cannot find that she is entitled to any of the net income from decedent‘s real property accruing between the date of his death and the present time because I think such an allowance could be made only by way of dower and therefore inconsistent with acceptance of the bequest in lieu thereof, and that brings me to the question of what interest, if any, should be allowed on the bequest, or in other words, from what date the bequest should take effect.
The widow‘s inchoate right of dower became consummate and vested immediately upon her husband‘s death and was likely to produce a profit for her at once. She was unable to elect to exchange or sell her estate for the amount of the bequest until the will was admitted to probate, which did not occur until two and a half years after decedent‘s death. I do not think the rule or statute as to the date from which interest should be allowed on a legacy should be applied to a legacy given in lieu of dower and certainly not in this case where testator stated in his will that the bequest was made “because of her unkind and inhuman treatment” of him, thus showing that the bequest was not made as a gratuity or bounty
I am aware that in Dutch Church v. Executors of Ackerman, 1 N.J. Eq. 40, this court held that the widow was entitled to interest on the legacy given her in lieu of dower by her husband‘s will only from one year after his death, although that cause was heard more than a year after his death and the will provided that the legacy be paid her “as soon as conveniently might be.” That opinion was followed by this court in Howard v. Francis, 30 N.J. Eq. 444, notwithstanding that cases holding to the contrary were cited and the Dutch Church Case was again cited with approval by this court in Camden Trust Co. v. Wolfe, 131 N.J. Eq. 437, although the question of interest on a legacy in lieu of dower was not therein discussed and, as was stated, was not before the court. I think those cases should not be taken as controlling on the facts here present.
If, under the statute, the executor can defer payment of the legacy for 18 months after probate of decedent‘s will, the time has not yet arrived when payment of the bequest can be demanded and perhaps four years will have elapsed since decedent‘s death before the legacy is legally demandable. In the meantime the $3,000 has probably drawn interest and rents of real property have been and will be received by decedent‘s legal representatives, which interest and rents become part of decedent‘s estate for the benefit of his residuary legatees or devisees which I consider unfair and inequitable toward the widow if she is not compensated by allowance of interest on her legacy and therefore I shall award her interest thereon from the date of decedent‘s death, but because of the cited statute the rate of such interest cannot exceed 3%.
The second cause of action seeks to recover from decedent‘s estate money loaned decedent by said Emma Foellner, with interest. The proofs establish that about a month prior to her marriage to decedent she gave him $2,860 to invest on mortgage; that he did invest that sum with money belonging to himself in a mortgage on property both had inspected and