65 N.J. Eq. 116 | New York Court of Chancery | 1903
Henry C. Miner, domiciled in New York, by his will, dated March 29th, 1897, after specific bequests of personal property to his four sons and also to his wife, devised the residue of his estate, real and personal, and wherever situate, to his executors in trust (among other tilings), 'to manage his real estate, collect the rents, &c., and to divide four-fifths of the net income between his four sons, and to pay annually the remaining one-fifth to his wife during the trust. The trust was to terminate-on the arrival of his son- George at the age of thirty-two, or his death under that age; and on such termination the executors were directed to divide the residuary estate with accumulations of interest or income into five equal parts, one of which was devised and. bequeathed absolutely to testator’s wife. To' each of his four sons was also given one-fifth of the residue, with limitations over in case of the death of either. These
‘‘shall succeed to the same portion of the father’s estate-as such child * * * would have been entitled to if the father had died intestate, towards raising which portion the devisees and legatees, or their representatives, shall contribute' proportionately out of the .part devised and bequeathed to them by the same will and testament.” ■
, On, the application of the infant’s general guardian,, his interest in a tract of land in Newark has -been sold, in connection with a sale by the executors under the will. Of-the whole purchase-price ($20,000), one-fifth has been paid into court, and the question now is whether, under the statute, the infant is entitled to the whole amount paid in, or whether this amount must be decreased by the value of the widow’s estate in dower. The widow, by documents duly executed and filed in New York, elected to accept the provisions of the will in lieu of-her dower, and the sale in this case is free of the widow’s dower, but reserving her rights, if any, in the proceeds paid into court.
Two questions arise in applying the statute — first, is the infant’s interest-in the proceeds of its sale to be ascertained without making any allowance for the value of the widow’s dower? second, if such allowance is made, to whose benefit does it enure —that of the widow, or of all the devisees proportionately? Upon the first question the language of the statute creating the
'Second. This sum deducted from the proceeds of sale, to represent the widow’s dower, must be held by the executors for the benefit of all the devisees of the land under the will, and in the same’proportion as they were entitled to the balance of the purchase-money. The present deduction from the proceeds of sale is made solely because it was necessary in order to ascertain the statutory “portion” of the estate to which the afterbom child was entitled, and the existence of the widow’s dower or its value in the lands, cast on the infant by the statute,- is not to be assumed for the purpose of giving such estate to- the widow; as if the testator had died intestate, if she be not other