209 A.D. 1 | N.Y. App. Div. | 1924
This court, upon the appeal from the decree, has held that the limitations beyond the-life estate of the widow under paragraph " fifth ” of the will, are invalid, in that they offend against the Statute against Perpetuities by a possible suspension of the power of alienation or the absolute ownership for more than two lives in being at the death of the testator. (Matter of Trevor, 207 App. Div. 673.) We are asked upon this reargument for an adjudication as to the devolution of the fund.
It is urged by the appellant Trevor that the widow, having consented to accept and having accepted for more than thirty years the provision of the will “ in lieu of her dower in my estate,” her estate is not entitled to share in the distribution of the corpus of her trust, as to which we have held testator died intestate. It is urged by the respondents, however, that as the cross-remainders and limitations upon the children’s trust were the provisions which moved this court to declare invalid the widow’s trust, if the widow’s trust be invalid, then the children’s trust is likewise invalid, and as the children have received the full shares they would have had in intestacy, the remaining third share of the residuary estate should pass to the widow or her estate, but in the event the widow’s estate be held not entitled to the whole of the fund, that her estate is entitled to one-third, but that the next of kin should only be entitled to participate in the remaining two-thirds of the fund on bringing the respective shares which they have already received from the estate into hotchpot.
The respondents’ contention that the widow is entitled to the whole of the fund, or in the event that it is held that she is entitled to but one-third, then the next of kin must bring their respective shares already received into hotchpot, presupposes an adjudication that the children’s trusts are also invalid. It appears that as to the children’s trust testator accomplished what he set out to do without offending against the statute, that it has been carried out, and three of his children together with the children of one who has died, have received their respective shares of the corpus d this trust. The question of the validity of the children’s trust,
Testator provided in the “ ninth ” paragraph of his will that “ The provisions hereinbefore made in this my will for my wife, I intend to be in lieu of her dower in my estate.” The precise question presented for decision, therefore, is whether or not by this provision testator has barred his widow from otherwise sharing in his estate. I am of the opinion he did not so intend, and that this provision of his will is not susceptible of the construction sought to be placed upon it by the appellant Trevor. (Matter of Kelsey, 184 N. Y. Supp. 68.) The word “ dower ” must be construed in its primary sense as indicating an interest in real property (Sink v. Sink, 53 How. Pr. 400.) The cases where it has been held that a widow was barred of further interest in testator’s estate present a different situation from that which exists in the case at bar, from which they are clearly distinguishable. They all, as stated by Surrogate Foley in the Kelsey case, contain language expressly providing that the provisions for the widow were not only in lieu of dower, but of all other interest in testator’s estate. Such is not the language of the will in the case at bar.
The corpus of the fund in which the widow enjoyed a life estate passes, two-thirds thereof to the children of testator living at the date of his death, and the children of those who have since died, and one-third thereof to his widow, and upon her death, to her estate.
The order of January 29, 1924, should be resettled accordingly.
Kelly, P. J., Jaycox, Manning and Young, JJ., concur.
On reargument, order of January 29, 1924, resettled in accordance with opinion. Settle order on notice.
