157 N.Y.S. 488 | N.Y. Sur. Ct. | 1915
The will under which the accountants were appointed, in its second paragraph, contains a devise of a certain house and premises to the wife for life, and a gift in trust of $8,000, to he invested and held for the benefit of the wife during her life. It is then provided that after the death of the wife the premises and the principal of the said sum of $8,000 are given to the testator’s children equally.
The will appoints executors, and then provides as follows: “ And I hereby authorize and empower (the executors) to sell and dispose of the whole or any part of my real estate, if, in their judgment, it shall appear to be for the best interests of my estate to do so, and to make, execute and deliver good and sufficient deeds of conveyance to the purchaser or purchasers thereof.”
The testator died seized of several parcels of land besides the premises mentioned in the second paragraph of his will.
It becomes necessary to determine whether the testator intended that his widow should have the benefit of the provisions in her favor contained in the will, in addition to her dower.
Where, in the absence of an express provision in the will, this question is provoked by a devise of lands in trust, the rule is that the dower is preserved unless there is an obvious incompatibility between the actual assignment of dower and the complete operation of the trust. It is held that the trust is not
In the case at bar no such indication appears. Here, nothing of the devise in trust will fail of effect if the right of dower be recognized and assigned. The operation of the trust, and the assertion of dower may coincide without offense to any purpose which the testator discloses.
In this view, the accountants have proceeded properly in their payments to the widow from the income of the lands which were the subject of the trust, and the objection in that behalf is overruled.
The objection to the renewal of the lease of which the decedent died possessed is overruled. It was within the duty of the-executors to avail themselves- of the privilege of renewal, not only as an incident to the exercise of the power given them to continue the testator’s business in the premises which he held under the lease, but generally as a prudent means of retaining the interest of the estate in the buildings erected upon the leased premises. The decree should conform to these views.
Decreed accordingly.