Opinion
June, 1914.
DeGroot, Kenyon Huber and Frank W. Harris (Franklin M. Tomlin, of counsel), for accounting executors.
Alexander S. Bacon, for Mary F. Springsteen, individually and as executrix.
Thomas H. Troy, special guardian.
Dispute arises as to whether the widow of the testator was put to her election between dower and the provisions of the will.
The material parts of the will are as follows:
" Second. I direct my executors hereinafter named to pay to my beloved wife Mary F. Springsteen $5,000 in cash.
" Third. I hereby give, devise and bequeath to my beloved wife Mary F. Springsteen the use of the house and lot number 49 Halsey Street, Brooklyn, N.Y., together with all the furniture during her natural life.
" Fourth. I hereby give, devise and bequeath to my executors hereinafter named, in trust, all the rest, my property of whatsoever name and nature in trust the income to be equally divided between my said wife and son Walter Springsteen. I direct that in the event of the death of my said son during the life of my said wife the one-half income of my said property to go to my son's child or children him surviving share and share alike. I direct that upon the death of my said wife that all my property to go to my said son, Walter Springsteen and in the event of my son's death then upon the death of my wife all my property to go to the child or children of my said son Walter Springsteen."
Where "there is a manifest incompatibility between the provisions of the will and the claim of dower by the widow" she must choose between them. Matter of Gordon, 172 N.Y. 25. If the third and fourth paragraphs quoted were respectively found in the wills of different testators they would, under the principle stated supra, receive diverse constructions.
The gift to the wife of the use of the house for life could be fulfilled without impairing the operation of her claim as doweress and both would, therefore, persist in the testamentary scheme. Lewis v. Smith, 9 N.Y. 502, 511; Matter of Zahrt, 94 id. 605; Konvalinka v. Schlegel, 172 id. 125, 129; Purdy v. Purdy, 18 A.D. 310; Wilson v. Wilson, 120 id. 581.
The trust in the fourth paragraph contemplates a possession and control of the lands involved and a distribution of the income thereof which would be impossible if the claim of dower should be in operation, and if that clause were found alone the wife would be put to her election as to such lands. Matter of Gordon, 172 N.Y. 25; Wilson v. Wilson, 120 A.D. 581; Matter of Stuyvesant, 72 Misc. 295.
The cases last cited deal with wills in which all the lands of the testator were devised upon trusts which could not coöperate with the dower if assigned, but the rule in its reason and its practical application is obviously fitted to a like devise of a specific piece of the testator's lands. As to one tract as well as to all, the testator's intention in the use of the same words must mean the same thing.
A will may properly contain one provision as to specific lands which is not intended to avoid or commute the dower and another provision as to other lands which is tendered in lieu of dower. Each would prevail in its separate effect if affirmatively expressed. They should receive no less force if they appear only by plain implication.
The wife's dower in the house mentioned in the third paragraph is preserved. While the gift in the will apparently involves all that is valuable in the dower, her right to separately assert the latter is still important to her for a more favorable adjustment of the transfer tax and in the possible case that she shall find that the claims of creditors may intervene between her husband's gift and its enjoyment.
As to the other lands she must elect.
The sums paid to counsel for the executrix and for the executors are properly chargeable against the estate. The executors contend for their allowance. The executrix — the only person interested in the estate other than her son, who is one of the executors — contracted in writing that these payments should be made in consideration of such services as might be required in the conduct of the estate. Counsel have continued their services to completion in reliance upon such contract and have at no time been warned to discontinue their activities. Hence the executrix cannot avoid the agreement which she has made and which has been performed without her repudiation, and equally as to the part of the estate which beneficially belongs to her is she forbidden to complain.
Decreed accordingly.