54 N.Y.S. 652 | N.Y. App. Div. | 1898
This case has been before us on a previous appeal, •and the facts showing the nature of the controversy are sufficiently recited in the opinion then delivered by Mr. Justice Goodrich. Shanley v. Shanley, 22 App. Div. 373, 48 N. Y. Supp. 32. On the present trial no evidence was given tending to show that the land the title to which stood in the name of the testator’s widow- was in reality his and under his control, nor of any parol agreement between the testator and his wife by which the latter agreed to convey the land to the plaintiff. Still, as we held on the first appeal, the will itself put the testator’s widow, through whom the defendant claims title, to an election whether she would accept the provisions of the will made in her favor, and convey her own property to the plaintiff, or exercise her unquestionable right to keep her own.
To avoid the effect of the will, one of the subscribing witnesses to it, and the counsel who drew the instrument, was allowed to testify, -over the objection and exception of the plaintiff, that, at the time
There was evidence tending to show that the widow received no part of the testator’s personal estate except his household furniture, and even contributed her own funds to pay the testator’s debts, to discharge the mortgages on the property, and to make some payments to her children as directed in the will. At least $4,200 of the insurance money accruing on the testator’s decease was payable to the widow personally. All this was turned over to the husband’s estate, and the only benefit she seems to have derived from the personal estate was the payment of a $2,000 mortgage on her o'wn property. There is no proof in the case as to the value of the household furniture bequeathed to the widow absolutely, or of the rental value of the real estate devised to the widow for life. It may be that, as stated by the learned counsel for the respondent, these were of little value, but we cannot indulge in such a presumption; and if, in fact, the widow gained nothing by her husband’s will, it was incumbent upon the defendant to show it. Here, however, it is necessary to examine the claim of the plaintiff that the testator’s widow made her election when she entered into the possession of the real estate and personal property specifically bequeathed, and that, having then made her election, she was bound by it, and was obliged to convey her land as directed by the will, whether in fact she got any substantial property under the will or not. We do not assent to this claim. Though the widow took possession of the land devised to her for life, she refused to convey away her own land. She just as much disclaimed the will as she adopted it. Under our view of the law and our construction of the will, she could not consistently assume both positions; nevertheless, in fact, she did. “The fact of a person not having been called upon to elect, and entering into the receipt of the rents and profits of both properties, as it affords no proof of preference, cannot be held an election to take one and reject the other.” 1 Jarm. Wills, § 435. In this respect the case is distinguishable in principle from that of a widow who accepts provisions of a will in lieu of dower, and subsequently discovers that her right of dower would have been more valuable, or one who accepts" a devise subject to the payment of a legacy, and afterwards finds out that the subject of the devise is not worth the charge on it. The plaintiff’s grantor could not, in a case like the present one, be devested of her land by mere estoppel. It required affirmative action in a court of equity to compel her to part with her title. Beal v. Miller, 1 Hun,
The judgment should be reversed, and a new trial granted; costs to abide the event All concur.