37 Misc. 702 | N.Y. Sur. Ct. | 1902
In passing upon the provisions of the decree submitted for settlement further consideration of the questions to which they relate has led to the modification of some of the views I previously expressed (see 36 Misc. Rep: 275). These modifications will appear in connection with the other matters which I now proceed to dispose of. I have concluded that no»' acceleration of the remainders in the Fifty-seventh and Seventy-second street property, devised after the death of the widow, was effected by her election to take dower, as the persons entitled to such remainders, pursuant to the terms of the will, could be ascertained and determined only upon the death of the widow. And this is so in the case of the disposition in favor of the issue of the son who died after the testator as well as that made for the benefit of the other devisees. The persons who at the time of the death of the widow shall be entitled to'the net proceeds of the sale of the properties would, if the widow had accepted the provisions of the will for her benefit, be entitled to receive such proceeds without abatement or reduction. But the widow having elected to take her dower, and having been paid the value thereof out of the proceeds of sale, the amount taken therefrom should be restored from the income received and to be received from such proceeds during the lifetime of the widow. When that has been done the income of the fund so constituted should be applied, as long as
Decree modified.