131 N.Y.S. 197 | N.Y. Sur. Ct. | 1911
The State Comptroller appeals from the order fixing tax upon the ground that the appraiser erred in deducting from the taxable assets of the estate the value of the dower interest of decedent’s widow in all his real estate.
It is conceded that if the widow elected to take dower instead of the provisions contained in the will for her benefit, the value of such dower interest would not be taxable. But if she accepts the testamentary provisions in lieu of dower the transfer of the property passing to her by virtue of these provisions is taxable. Matter of Riemann, 42 Misc. Rep. 648; Matter of Barbey, 114 N. Y. Supp. 725. It is contended by the State Comptroller upon the appeal that the provisions made in the will for the benefit of decedent’s widow and the disposition made by the testator of his entire estate are inconsistent with the claim of dower in addition to the testamentary provisions for her benefit, and that she was, therefore, put to her election. The widow did not comply with any of the provisions of section 201 of the Real Property Law in regard to election. She will, therefore, for the purpose of this proceeding, be presumed to have elected to take under the will unless she is entitled to her dower in addition to the testamentary provision made for her by the testator.
It has been uniformly held by the courts of this State that, in the absence of express words declaring that the testamentary provision is made for the widow in lieu of dower, the widow is entitled to both unless there be such an incompatibility between the claim of dower in addition to the testamentary provision and the other arrangements made by the testator for the disposition of his estate as will indicate a manifest intention on the part of the testator that the widow was not to receive both. Lewis v. Smith, 9 N. Y. 502; Adsit v. Adsit, 2 Johns. Ch. 448; Horstmann v. Flege, 172 N. Y.
In Vernon v. Vernon, 53 N. Y. 351, the testator devised part of his lands to his wife in fee; the remainder he devised to trustees charged with the payment to her of an annuity for life out of the lands. It was held that the devise to the trustees, together with the power given to them to sell the real estate, was inconsistent with the widow’s claim of dower. In the matter under consideration the trustee has power and authority to alter, repair or rebuild the buildings and to dispose of the real estate in fee. Therefore, under the decision of Vernon v. Vernon, supra, these powers are inconsistent with the widow’s claim of dower.
In Asche v. Asche, 113 N. Y. 232, the decedent gave all his estate, both real and personal, to trustees to pay a certain amount of the income to his mother during her life, and the remainder of the income to his wife during her life. The
In Matter of Gorden, 172 N. Y. 28, the testator, after some bequests of minor importance, gave all the rest of his estate, both real and personal, to his executors in trust to collect the rents and profits, pay the expenses and keep the buildings insured until his youngest child should attain his majority. He directed his trustees to pay one-third of the net income to his widow, and to apply the remaining two-thirds to the support of his children. The court said: “ The vesting of title in trustees not only with power to sell and reinvest, but with special directions as to control and management and the payment over of the annual income to the widow and children, during the term of the trust, we regard as sufficient.” And at page Si the court says: “ In our opinion it is manifest from the carefully devised plan to invest the trustees with the continuous management of all the real estate for a long term of years, that the testator did not intend that one-third of his estate should be placed in the possession and under the control of the widow, and at the same time that she should receive one-third of the income derived from the two-thirds then remaining. He did not intend that five-ninths of the income should go to her, while only one-twenty-seventh went to each of his twelve children. Such a construction would be in contradiction of the will and would disappoint the intention of the testator. We think that the dispositions of the
In Horstmann v. Flege, 172 N. Y. 381, the testator divided all his real estate among his children, charging upon the portion devised to each a certain annuity which he required the devisees to pay to his widow during her life. The court distinguished this case from Matter of Gorden upon the ground that in this case the property was devised to the children upon consideration of their paying to the widow a certain annuity. In the Gorden case the property was devised to trustees. The court, in referring to the Gorden case, emphasizes the fact that in that case all the real estate was devised to trustees; but there does not seem to be any good reason for the contention of the respondents that the court intended by emphasizing the word “ all ” to mean that the decision was based solely upon the ground that all the real estate was devised to trustees and that the principle would not apply if only ninety-nine one-hundredths were so devised. The reasoning in the Gorden case shows that because all the real estate was devised to trustees there was none left from which the dower interest of the widow could be set apart and allotted to her. That this was the intention of the court is apparent from the following, which is taken from page 387: “ In the case before us, the widow is given no interests in the rent or income from the real estate. Her annuity is not pay
In Wilson v. Wilson, 120 App. Div. 581, the testator directed that one-half of his estate should go to trustees for the benefit of the widow during her life, remainder to the children; he also directed the trustees to divide the other one-half, share and share alike, among the three children. Justice Gaynor, in writing the opinion, held that the reasoning in the Gorden case applied to this case, saying: “ The power to divide it (the estate) into three equal parts, and assign one to the possession and control of each child, is as inconsistent with the widow being given possession and control of a part, i. e., of two-thirds thereof, as it would be in the case of a full trust.”
In Orth v. Hagerty, 125 App. Div. 118, the decedent left the income of certain personal property to his wife, and he gave to his grandchildren all the real estate of which he died seized. He directed his executors to hold the real estate until his youngest grandson should become twenty-one. The court held that the testator intended that all his real estate should be held for the benefit of his grandchildren and not two-thirds thereof, and that the widow should elect.
In the matter under consideration the testator directed his executors to divide his estate (with the exception of some inconsiderable bequests and devises) into six equal parts; two of these parts he gave to his wife in fee, the remaining four parts or two-thirds of his estate he gave to trustees and empowered them to alter, repair or rebuild the buildings, to lease any part thereof, to sell and convey in fee simple any part of the real estate. As the court said in Wilson v. Wilson, supra, the vesting of two-thirds of the whole estate in
But if we assume the validity of the contention made by the executors in this proceeding, that the testator in directing that all the rest and remainder of his estate be divided into six equal parts intended to exclude from this division the one-third of his estate to which his wife would be entitled because of her dower right, we have the following disposition of the estate: One-third of the real estate is set apart for the widow as her dower, and the remaining two-thirds is divided into six portions in accordance with the directions contained in the will. Two of these portions are given to the wife absolutely; three of them are given in trust, the income to be paid to the wife during her life, remainder to the children, and one of them is given in trust, the income to be paid to the children until they reach their majority, after which they are entitled to the principal. But there is no disposition made of the remainder in the one-third set apart to the widow for her dower. It cannot be contended that the clause of the will in which the testator directs that all the rest and remainder of his estate be divided into six portions includes the remainder after the life estate of the widow in the one-third set apart as her dower, because that remainder is directed to be divided into six portions and part of it given to the wife absolutely and a part given to her for life. Therefore, to hold that the wife is entitled to dower as well as the testamentary provisions for her benefit would necessitate a construction of the will which would result in the testator’s dying intestate as to the remainder after the life estate of his widow in that portion of his estate set apart for her dower. But the court will not adopt a construction of the will which would result in partial intestacy. Schult v. Moll, 132 N. Y.
Besides, the testator’s will was drawn with great skill and with much elaboration of detail. The language is direct, precise and explicit; provision is made for the disposition of the estate in almost every conceivable contingency. The conclusion is therefore almost irresistible that if he had intended that his widow should have dower in addition to the testamentary provisions for her benefit he would have made a proper disposition of the remainder after her life estate in the premises set apart for her dower. His failure to do so shows a manifest intention on his part that the widow was not to receive dower in addition to the testamentary provisions for her benefit.
Therefore, as the contention of the executor that the widow is entitled to dower as well as the testamentary provisions made for her benefit is incompatible with the manifest intention of the testator in disposing of his entire estate, and would subvert the whole scheme of the testator in the disposition of his estate, and would result in the testator dying intestate as to the remainder after the life estate of his widow in the one-third set apart for her dower, it must be held that the widow is not entitled to her dower and the provisions made for her benefit in the will, and that it was incumbent upon her to make her election. As she has not made an election under section 201 of the Real Property Law the appraiser erred in deducting the value of her dower from the taxable assets of decedent’s estate.
Decreed accordingly.