37 N.Y.S. 71 | N.Y. App. Div. | 1896
Huder the will the widow and children were entitled to an equal proportion of the property (R. S. part 2, chap. 1, tit. 2, § 98 [1 R. S. 731]), which provides that where a disposition under a power is directed to be made to or between several persons, without any specification of the share or sum to be allotted to each, all the persons designated shall be entitled to equal portions. Such being the construction of the will, the question raised here is settled by the authority of Konvalinka v. Schlegel (104 N. Y. 125), and the cases therein referred to. In that case the will, after providing for the payment of debts and some specific legacies, gave the residue of the estate to the execu tors to sell and dispose of the same and divide the proceeds equally between the widow and children, share and share alike. It was held that the widow was not put to her election, but was entitled to dower in addition to the provision made for her in the will; that the devise to the executors was void as a trust, but valid as a power in trust, and the lands descended to the heirs subject to the execution of the power, and that the execution of such power was not inconsistent with the dower interest, but the sale would be subject thereto. The appellant here is clearly entitled to dower as claimed by her, and provision should be made for it in the interlocutory judgment appealed from.
Van Brunt, P. J., Barrett and Patterson, JJ., concurred.
Judgment modified as directed in opinion and affirmed as modified, with costs to appellant from the fund out of which dower is payable.