132 Misc. 274 | N.Y. Sur. Ct. | 1928
The questions raised in this construction proceeding are disposed of as follows:
(1) Testator, by the 2d paragraph of his will, devised and bequeathed his entire residuary estate, real and personal, to his executors and trustees, in trust, to pay the income derived therefrom to his widow during the term of her natural life, with remainders over. No express direction that the provisions for the widow were to be in lieu of dower was contained in the will. The widow*275 claims to be entitled to dower in addition to the benefits provided for her therein. It is well settled that dower is favored unless it appears that the provisions in a will for the benefit of a widow are clearly incompatible with a claim of dower. (Konvalinka v. Schlegel, 104 N. Y. 125.) In the latter event she must elect to take either the one or the other. The provisions for the widow in this will are in my opinion clearly incompatible with the right of dower. The legal title to the real property is given to the trustees. They are granted “ full power and authority to sell, mortgage and lease, or otherwise dispose of my estate, real and personal, and to give complete title thereto.” Thus by this language the management, operation and control of the real property is vested in the trustees. It has been long settled by our decisions that where real estate is devised in trust, with the right to sell, mortgage and lease the same, such provisions are inconsistent with the right of the widow to manage or control any part of the real estate, and are, therefore, inconsistent with the claim of dower. (Savage v. Burnham, 17 N. Y. 561; Tobias v. Ketchum, 32 id. 319; Vernon v. Vernon, 53 id. 351; Matter of Gorden, 172 id. 25; Matter of Lakner, 125 Misc. 654; Matter of Walsh, 126 id. 479.) Moreover, the power granted to the trustees by the will 11 to give complete title ” to the real estate, and the use given to decedent’s nephew by paragraph 1 of the will, of the premises located at 50 West Fifty-second street, New York city/1 free of rent ” for five years, are provisions entirely inconsistent with the claim of dower, and further evidence testator’s intention that the benefits for the widow under the will were to be in lieu of dower. Complete title to the real estate could certainly not be conveyed by the trustees nor could the above-mentioned premises be occupied by the testator’s nephew 11 free of rent ” if attached to the real estate was the widow’s right of dower. The widow must, therefore, be put to her election.
(2) Paragraph 1 of the will reads as follows:
11 First. I give and bequeath to my nephew, Dr. Algernon B. Reese, the contents of my house 50 West 52nd Street, New York City, my medical practice, the sum of Twenty thousand ($20,000) and all sums for which he may be indebted to me. For five years after my demise my nephew, Algernon B. Reese, shall have the house at 50 West 52nd Street, New York City, free of rent, but must pay taxes, interest on mortgage and upkeep. He shall pay to my beloved wife Louise del ’Aigle Reese, Twenty per cent (20%) of the net proceeds of practice of medicine until her death.”
It is claimed by the petitioners, the executors of the will, that the legacy of $20,000 bequeathed to testator’s nephew, Dr. Algernon B. Reese, is conditioned upon the payment to testator’s widow of
Submit decree on notice construing the will accordingly.