11 Mills Surr. 522 | N.Y. Sur. Ct. | 1914
The special guardian of Loring R. Gale, Jr., and Lucile Bentley Gale, the two surviving children of the decedent, has appealed from the order assessing a tax upon decedent’s estate, and alleges that the appraiser erred in finding that the widow of decedent was entitled to dower in his real estate in addition to the provisions contained in the will for of decedent. Loring R. Gale, the decedent herein, had his ground and upon the further ground that the appraiser erred in deducting the sum of $10,000 as administration expenses in his valuation of decedent’s real estate and in his failure to include in the taxable assets of the estate the household furniture of decedent. Loring R. Gale, the decedent herein, had his domicile in Pennsylvania. He died on the 4th day of February, 1913, leaving real estate in this state. The value of this real estate was ascertained by the transfer tax appraiser to be the sum of $449,500. He left no tangible personal property in this state. He was survived by his widow, Elizabeth B. Gale, and by two infant children—Loring R. Gale, Jr., and Lucile Bentley Gale, aged nine years and seven years respectively. The will of Loring R. Gale was admitted to probate bj^ the register of Potter county, Penn. The appeals have been admirably presented and most clearly argued by the special guardian, and, indeed, on the part of all the counsel engaged before me in this matter. The arguments have not left me in doubt concerning the disposition which ought to be made of this matter.
The appraiser found that the widow of Loring R. Gale had dower in his fee simple estates in addition to the provisions for her contained in her husband’s will. The special guardian and the comptroller severally appeal from this conclusion; the comptroller on technical grounds affecting the appraiser’s mode of determining the value of the widow’s dower, and the special guardian on substantive grounds, denying the existence of the widow’s dower estate in view of the accepted provisions of the will.
The special guardian contends that the provisions of the will for the widow exclude her right to dower. The legal question then here is, was it the testator’s intention that his widow should, in addition to the provisions of the will made for her benefit, also have her dower? If not, the appraiser erred in deducting the value of her dower estate.
The question how far a testamentary provision in favor of a wife operates to exclude dower by necessary implication has often been before the courts, and the general principle and its modifications and reservations are too plainliy laid down to justify extended rediscussion. Whenever the claim of dower is so inconsistent with the terms of a will as to break up, or be incompatible with, the testator’s entire dispositive scheme, as evidenced on the face of the will itself, it is held that the testator is to be presumed, by necessary implication, to manifest an intention that the provision for the widow shall be in lieu of her dower, although the will does not so declare in express words. What was the testator’s intention in this instance is the primary question, and such intention is to be gathered from the will itself, and not from extrinsic circumstances.
The testator having devised all his real estate to a trustee, together with possession thereof and the right to receive and collect the rents of the same, and having imposed the duty on the trustee to make all the necessary repairs to the buildings and to pay all premiums of insurance, taxes and the assess
The character of the future management of the estate devised is regarded as significant of testator’s real intention. Where a trustee of the legal estate is directed by the will, as here, to keep the house devised in repair and to pay taxes, insurance, etc., such directions are regarded by the courts as inconsistent with an intention that the widow should have her dower estate therein. The direction, for example, to the trustee to repair, gives him a right of entry on the whole estate, and such direction to repair necessarily applies to the whole house and all the buildings, and not to two-thirds thereof.» Such provisions and powers as those given by Mr. Gale to the trustee are incompatible with an intention, on the part of testator, that the widow should take her dower estate in addition to the other provisions made for her in the will. Birmingham v. Kerivan, 2 Sch. & L. 444, cited with approval in Tobias v. Ketchum, 32 N. Y. 319, 380; Matter of Zahrt, 94 N. Y. 605; Asche v. Asche, 113 id. 232; Matter of Gorden, 172 id. 25, 33, where the New York cases generally are reviewed; Wilson v. Wilson, 120 App. Div. 581; Orth v. Hagerty, 126 id. 118, 124; Matter of Stuyvesant, 72 Misc. Rep. 295. It is therefore evident that the appraiser erred in excluding the value of tlv dower estate.
The comptroller’s contention that the appraiser erred in his valuation is the next point for our consideration. The affidavits upon which the appraiser’s valuation of Mr. Gale’s real estate was based recited that the affiant had been engaged in the business of buying and selling real estate in the borough of the Bronx for the past fifteen years and that he was familia ■
It is clear also that part of the estate situated in this state should bear its proportionate share of expenses of administration, and the sum of $10,000 allowed by the appraiser is a reasonable deduction.
Enter decree accordingly.