37 N.Y.S. 249 | N.Y. Sup. Ct. | 1896
A husband’s testamentary provision for his wife is .not to be deemed as intended to he in lien of. dower, unless the . will make it so. by express words, or a claim of dower would be inconsistent with other parts of the will, or with its general plan. In either case the widow is put to her election. By. this will, the testator left all of his property, real and personal, to his widow - so long as she remained his."widow, for her-sole use .and.benefit, and. then added, viz.: “ In base my widow should marry again, she may retain one-third of my then remaining estate; the balance to be divided share and. share alike between my four children.” He died in 1877' and -the widow has remarried. If the devise had been to .the widow for life or until she should remarry, with . remainder to the children upon.,the happening of either .event, it would not be in lieu, of dower (Bull v. Church, 5. Hill, 206; 2 Den, 430); and the same would be- true of' a devise for life simply, with remainder to the children'.. Lewis v. Smith, 9 N. Y. 502... But the present cáse is different. It is a devise to the widow for life, or until she. should remarry, with the further provisidh that in the latter event the widow' should retain one-third of the then remaining estate, and that the balance should be equally divided among the four children. Provision is made for ■her out of the remainder; so that the, case is the same as though the will had provided for a like division upon the testator’s death,
' The devise of the one-third to the widow upon her remarriage is not for life, but absolutely. The words are that “ she may retain one-third of my then- remaining estate.” I do not see how this may be construed to mean that she might retain only one-third of her life estate. ' Besides, if she was only to take the one-third for life, there would be partial intestacy as to such third, and the presumption is against such an intention, in the testator. Schult v. Moll, 132 N. Y. 122. It is manifest from the will that, •the testator meant to make thereby a complete disposition of his entire estate. . . ' ,
Judgment accordingly.