In re the Estate of Perry

38 Misc. 167 | N.Y. Sur. Ct. | 1902

Reynolds,S.

It is conceded that the widow received in articles enumerated in subdivision 4 of section 2713, Code of Civil Procedure, the value of only twenty-two dollars and ninety-five cents, for the reason that none other of the articles was in existence. That under Subdivision 3 of said section she received nothing, and that under subdivision 1 she did not receive the-sewing machine, for the reason that no such article was owned' by the deceased, and the attorney -for the widow asks this courfito order the administrator to pay to the widow in cash, the value-of these articles, and to substantiate his claim he cites Matter of Williams, 31 App. Div. 617, 52 N. Y. Supp. 700, and Matter of Hembury, reported in 37 Misc. Rep. 454, 75 N. Y. Supp. 933.

It is perfectly clear that both eases cited by the counsel for the widow are directly in point and warrant his contention if they are to be followed, but from a careful reading of section 2713, it seems clear to this court that it was not the intention of the Legislature to give to the widow the value in money of any of the articles enumerated in this section, under subdivisions 1, 2, 3, and 4, and unless the deceased owned those articles at the time of his death the widow gets nothing under these subdivisions. For it will be observed that, under subdivision 5, the express direction is given to the appraisers, to set apart “ Other necessary household furniture, provisions or other personal properly. * * * to the value of not exceeding $150.” Under that subdivision they have the right to set apart money for the widow’s use and benefit, but under no other subdivision do we find that direction, “ other personal property,” which may include money.

Under subdivision 1, all spinning-wheels shall be set aside. If there are none, who is to say how many spinning-wheels the widow should be paid for and what their probable value would be, and by what system of proof are we to arrive at the value of the several and various articles enumerated in this section ? It would seem that the Legislature in enacting this law, could not have been so blind as to the difficulties that would arise in proving the value of these articles. If it had intended that the widow should receive their cash equivalent, it would have fixed the amount under’ each subdivision of this section that the widow would receive if she did not take the articles enumerated.

And again, following subdivision 5, the said section provides: ‘ Such articles and property shall remain in the possession of the widow,” referring to the articles contained in the various subdivisions in this section.

I cannot follow the law as laid down in the William’s Matter, 52 N. Y. Supp. 700, or Matter of Hembury (supra). In the case of Baucus v. Stover, 24 Hun, 109, it was held, “ that the statute authorizing the setting apart of sheep and swine to the widow only applies where the deceased had such ownershp- at the time of his death, as would permit of their delivery.” This case was reversed on appeal, hut on other grounds than here considered, and the question under consideration was not discussed by the appellate court, and is some authority for the conclusion here reached. Therefore, the motion is denied.

Motion denied.