4 Johns. Ch. 9 | New York Court of Chancery | 1819
The charge of a “ comfortable Support and maintenance,” falls, probably, upon the real estate as well as the personal. But the latter ought to be first applied ; and as the executors were directed to render the maintenance from time to time, and as no authority is given to them over the real estate, it would seem that the testator had a particular reference to the personal estate, in making that provision for his wife. I do not perceive, however, that the provision destroys the right to dower. There is no inconsistency between the two claims, even supposing the charge for maintenance to rest upon the real estate. From the large and valuable real estate set forth in the pleadings, and admitted, it is quite apparent that the real estate is much more than adequate to furnish the support and the dower. There is nothing repugnant in the operation of the two claims; and the assertion of the right of dower, will not disturb or defeat any provision in the will. A comfortable maintenance is a provision of a very modest pretension, and it can easily be supposed to have been intended to aid the right of dower, and to secure, in' every event, comfort and competence to the wife.' But whether the testator had any thought, at the time, of the claim of dower, cannot be certainly known. It is sufficient that he has not made any declaration of his will on the subject, and, therefore, the doctrine in Adsit v. Adsit will
I shall accordingly declare, that the widow is not to be put to her election.
Decree accordingly.
