8 Paige Ch. 325 | New York Court of Chancery | 1840
The right of dower being a legal right, the wife cannot be deprived of it by a testamentary
In the present case, although the testator has expressly directed village lots to be laid out and sold, as they may be wanted, it is not necessary that each lot should be sold subject to the widow’s right of dower. For a portion of the lots thus laid out may be assigned to her for her dower in the whole, and the rest may be sold free from any claim of dower. Or she may be endowed of other portions of the real estate, leaving all that is wanted for village lots during her life entirely free and unincumbered. I therefore conclude that upon the settled principles of law on this subject, the widow is entitled to dower in the testator’s real estate, notwithstanding the devises and bequests in her favor in the will. Taking the whole disposition which the testator has made of his property into consideration, it can hardly be said he intended to give her dower in addition to the testamentary dispositions in her favor ; and probably if the question of dower had occurred to him, he would have inserted a provision in the will declaring that the dis
I think the language of the will clearly indicates that the defendant was only to have a life interest in the Walnut Grove farm. Under the provisions of the revised statutes, the term heirs, or other words of inheritance, are no longer necessary to pass a fee ; but every grant or devise of real estate, or any interest therein, passes all the estate or interest of the testator in such lands, unless the intent to pass a less estate or interest shall appear by express terms, or be necessarily implied in the terms of such grant. (1 R. S. 748, § 1.) If therefore there had been a direct devise of the Walnut Grove farm to the defendant, although without words of perpetuity, the subsequent provision for an annual allowance to her to keep it in repair, would not be evidence of an intent to limit the devise to the continuance of her life merely. But the language of the will is peculiar. There is no direct devise to her of the farm ; and she takes a life estate therein by implication only. This farm, together with all the testator’s other real estate, is devised in the first place to his executors and trustees ; and her interest in the farm is carved out of that devise, by language which clearly indicates that he did not intend to give to her an estate commensurate with that which he had previously conveyed to the trustees. The language of the testator, after giving to his wife an annuity which is in terms limited to the duration of her life, is that she shall have the possession and direction of the Walnut Grove farm. And in order to keep up the. garden and improve the property, he gives her a further annuity of $500, in addition to the income of the farm.
I think there can be no reasonable doubt that the specific bequest of the household furniture, carriages and harness, waggons, sleighs, farming implements and horses, &c., is an absolute bequest to the wife of the whole property and interest therein, and not merely a life interest in the use thereof. There is nothing in the will to indicate an intention to thus limit the bequest. And the next clause of the will, which gives her the use of the library during her natural life, shows that the testator clearly understood the distinction between an absolute bequest of personal property, and the bequest of a mere life interest in property which would not probably be consumed in the using.
A decree must therefore be entered declaring the construction of the will of the testator according to this decision and directing the complainants to assign to the defendant her dower in the real estate of which the testator died seized, and to permit her to take and enjoy the property specifically bequeathed to her accordingly, and to pay to her the annuities out of the testator’s estate according to the directions of the will. The costs of both parties to be paid out of the personal estate not specifically bequeathed.