Opinion
January, 1916.
Hardy, Stancliffe Whitaker (Noah A. Stancliffe, of counsel), for appellants.
Lafayette B. Gleason (Schuyler C. Carlton, Alexander Otis, with him on the brief, of counsel), for state comptroller.
The executors of decedent's estate contend that his widow is entitled to dower in addition to the provisions contained in the will for her benefit. The transfer tax appraiser refused to deduct the value of the widow's dower from the assets of the estate, and the executors have appealed from the order entered upon his report. The decedent gave his wife a life estate in all his real estate after the payment of taxes, insurance and repairs. His executors and trustees were also authorized to mortgage the real estate in certain contingencies. The courts have held that when a testator gives all his real estate in trust and the trustee has power to insure the property, to make repairs or to mortgage it, such control over the real estate is inconsistent with the right of the widow to one-third of it during her life. Asche v. Asche, 113 N.Y. 232; Matter of Gordon, 172 id. 28. I have had occasion in a recent case ( Matter of Gale, 83 Misc. 687) to examine this question at some length, and the reasons given for my conclusion in that case apply with equal force to the matter now under consideration. I will therefore hold that the widow is not entitled to dower in addition to the provision made for her in the will of the testator. Order fixing tax affirmed.
Order affirmed.