Cooper v. Cooper

| New York Court of Chancery | Aug 11, 1897

Pitney, V. C.

Three points are made by the defendants in opposition to this bill for dower.

First. That by the third section of the will a devise for life or during widowhood was made to the complainant of the Broadway premises, which bars her dower under the sixteenth section of the Dower act, unless she dissented therefrom within six months after the probate of the will, which she has not done.

Second. That the claim of dower is inconsistent with the terms of the will, and will disturb the disposition thereby made, and hence that the widow is put to her election between benefits under the will and her dower at the common law. And

Third. That she has already made such election by accepting bequests of personalty under the will and six months’ payment of her annuity.

The first question depends upon the true construction of the third clause of the will. The complainant contends that there is no devise to her of any estate at law, either for life or during widowhood, in the Broadway premises, but that they are either devised in trust to the executors, and hence within the rule in Vanarsdale v. Vanarsdale, 2 Dutch. 404, or that the benefit taken by the widow is a mere duty of care and management of the estate, for which she is to have the net proceeds of its income.

I cannot adopt this view. The gift to the executors is expressly in trust for the term of one year, “ to hold the same, receive all the rents, issues and profits and paying all the demands against the said premises, and the profits to go into and become a part of the residue ” of his estate.

iSTow it seems to me that that language limits the gift in trust to his executors for the term of one year. Then follows this clause:

“At the end of the said one year after my death (my wife still living and remaining my widow) then I order and direct my said executors hereinafter named to turn the said Broadway premises over to her, to have full care and charge of said premises, during the term of her natural life or so long as she remains my widow, she also to receive all collectible back rents due on the said premises.”

Then follows an order and direction to his executors to sell the same, and the proceeds to go into and become a part of the residue of his estate. The language “ to have full care and charge of said premises,” confirms the idea that the trust ceased at the end of one year, and it is to be observed that a continuance of the trust is not at all necessary to the power of sale.

It was admitted by the counsel of complainant that the result of the bequest was to give to the wife the beneficial use of the premises, but it was earnestly argued that such provision did not result in giving her a legal estate.

In my opinion, the direction to his executors “ to turn the said Broadway premises over to her [his wife], to have full care and charge of said premises,” &c., was, in effect, a gift of the premises to her for life. It put her in possession, and gave her the. right to the possession and use during her natural life. And such a gift, according to all the authorities, is an estate for life. The fact that it is limited to her widowhood, does not prevent it from operating as a bar, in the absence of dissent. Such was clearly the decision of Chancellor Vroom in Stark v. Hunton, Sax. 216, a leading case on this topic; Den v. Manners, Spen. 142; Hance v. West, 3 Vr. 233; Morgan v. Titus, 2 Gr. Ch. 201; White v. White, 1 Harr. 202, where the provision was, as here, for life or widowhood; Thompson v. Egbert, 2 Harr. 459; Thomas v. Thomas, 2 C. E. Gr. 356; Wooster v. Cooper, 8 Dick. Ch. Rep. 682; Kearney v. Kearney, 2 C. E. Gr. 59. I have no doubt that the complainant can maintain ejectment for the premises in question.

This result is, of course, fatal to the complainant’s claim.

Second. I think, also, though it may not be necessary to-express any opinion upon it, that the second point must be-resolved against the complainant, and that if I am wrong in my first position, she should be put to her election between benefits-under the will and her claim for dower, and that she cannot have both, on the plain ground that the assertion of her right of dower will interfere and be inconsistent with the disposition the-testator has made of his property.

The testator, in point of fact, disposed of all his real estate,, most of it by specific devises, and where there was no specific devise he disposed, of it by the direction and power of sale in his disposition of the residue of his estate; and in every instance it is plain, where there is a direct specific devise, that the testator intended that the devisee should take an absolute and full estate. He uses the word “ absolute ” in two or three cases. By the term “absolute,” I think, he intended a full and complete estate.

Then, when he directs a sale, he directs his executors to give “ good and sufficient deeds.”

How, I think that by that language the testator intended to direct his executors to give good and sufficient title. The will was not prepared by a skilled draftsman, and, in common parlance, to give a “ good and sufficient deed ” means to give a good and sufficient title; and I think that was the force of the language here used.

Some of the older English cases, and perhaps a few in this country, have held that a direction to executors to sell and convey real estate, did not necessarily indicate that they were to sell free and clear of the dower of the widow. But the modern decisions, which, in my judgment, are more in accordance with common sense, tend to hold that a power and direction to sell and convey necessarily includes the idea of conveying the title free and clear of dower. Except sales of real estate by sheriff on common-law judgments, the cases where a sale of real estate is made by a husband without his wife joining him are very rare indeed. Ordinary purchasers will not accept a title with an outstanding inchoate dower upon it, much, less one that has dower fastened upon it by the death of the husband. Such a title is not marketable, in the ordinary sense of that word. On this subject I refer to the cases already cited, and to Colgate v. Colgate, 8 C. E. Gr. 372, and the cases there cited; Stewart v. Stewart, 4 Stew. Eq. 399; Norris v. Clark, 2 Stock. 51" court="None" date_filed="1917-02-17" href="https://app.midpage.ai/document/wright-v-keasbey-7318523?utm_source=webapp" opinion_id="7318523">2 Stock. 51; Griggs v. Veghte, 2 Dick. Ch. Rep. 179.

The provision in the codicil .that his daughter shall have the proceeds of the sale of a certain house free from any legacy or claim of the widow is made to except this bequest from the effect of the general charge in the widow’s favor found in the twentieth item. This provision in the twentieth item covers his whole estate, and of itself shows that the testator did not intend that his widow should have any other claim upon it.

The proofs show that the provision by the will is much larger than would be her right as dowress; so that it is not probable that she would choose the latter.

On the third question submitted, laying out of view the failure to file her dissent, I do not think the widow has made any such election as will prevent her from making her election to take dower instead of benefits under the will.

I will advise that the bill be dismissed, with costs.