86 N.Y.S. 448 | N.Y. App. Div. | 1904
The appellant urges that the language of this will is effective to give the widow an implied alternative legacy in addition to the ordinary provision in lieu of dower, which entitles her in case she rejects the provision for her benefit in the will, to the same distributive share in his personal estate as if he had died intestate. The language in giving the legacy is that it is “ to be accepted and received by her, in lieu of dower and of all rights statutory and otherwise on her part against my estate.” She relies in support of her contention upon Matter of Vowers (113 N. Y. 569). That was a case where a legacy by implication was upheld. In the will under consideration there the provision for the benefit of the testator’s wife was followed by this clause: “ This provision to be accepted by my wife in lieu of her dower right and distributive share in my estate. She to make her election whether she accepts this provision
The real question to be determined is what was the intention of the testator, and that must be found from the will itself and the surrounding circumstances. Here there was no provision that the bequest to the testator’s wife was in lieu of a distributive share of his' estate and requiring her to make an election, but instead the bequest to her was.“in lieu of dower and of all rights statutory and otherwise on her part ” against the testator’s estate. There was, of course, no intestacy, and in such case the widow had no statutory or any other right to a distributive share of the testator’s personal estate. The words employed must be construed in the light of the facts as they exist. Where a will is made, effectually disposing of the testator’s personal estate, there is no right-under the law, statutory or otherwise, in the widow to have a share of such personal estate under the Statute of Distributions. The testator does not say the bequest is in lieu of “ all rights ” as in case of intestacy, and there is nothing, as there was in the Vowers case, upon which to uphold a legacy by implication.
The decree should be modified by striking out the provision respecting a debt in favor of the wife and as so modified affirmed, without costs.
All concurred.
Decree modified by striking therefrom the provision respecting a debt in favor of the widow and as so modified affirmed, without costs.