Opinion
June 21, 1907.
Edgar Jackson, for the appellant Wilson.
Henry E. Heistad, for the appellant Mott.
Gormly J. Sproull, for the respondent Wilson.
Herbert H. Kellogg, for the respondent Yarrington.
Where the provisions of a will for the widow are inconsistent with her taking dower, although it be not made in terms in lieu of dower, as is the case here, she is nevertheless put to her election whether she will take dower instead of such provision, for she cannot in such case have both, and cannot in any case be deprived of her dower without her consent. The widow here claims that there is no inconsistency, and that she is therefore entitled to both.
The will puts one half of the estate in trust with the executors for the widow for life, remainder to the three children; and confers a power in trust on the executors in respect of the other half, i.e., to divide it share and share alike among the three children. Now it is a plain thing that after one half of the land is set off by metes and bounds to the widow's trust, the remaining half cannot be divided by metes and bounds into three parts among the children, and each be put into possession of his part, if one third of the whole (which would be two thirds of a half) has first to be set off by metes and bounds out of the children's half, and put into the widow's possession for her dower; and that is the test of inconsistency. Such test always was and is the physical one whether the setting off by metes and bounds of one third of the land to the widow would make the carrying out of the devise of the will, i.e., the present physical division which it directs, impossible (1 Roper on Hus. W. 576; Closs v. Eldert, 16 Misc. Rep. 104; Jurgens v. Rogge, Id. 100; Matter of Zahrt, 94 N.Y. 605). To admeasure and set off one third in dower in the present case would "disturb and defeat the will," which is the test ( Adsit v. Adsit, 2 Johns. Ch. 448). The suggestion to be found in an opinion here or there that the claim of dower may be considered as a lien on all the realty, like a mortgage, and that in that way it does not enter into or frustrate the physical division directed by the will, is an inadvertence. Dower is not a mortgage or a lien of any kind, but an estate (4 Kent's Com. 35). It is an "encumbrance" — it encumbers the title — but an encumbrance is not always a lien, although a lien is always an encumbrance.
But even though there be no physical difficulty in the way of carrying out a will and setting off one third of the land in dower, the intention of the testator to be fairly gathered from the words and the scheme of the whole will controls on the question whether the widow is to take dower in addition to the provision made for her, the same as on all other questions. The intention of the testator has to be followed if it be at all expressed. It is not permissible to use artificial rules of construction to spell out the meaning, except where it cannot be arrived at by ordinary interpretation of the words used in the light of the whole scheme of the will. This is the cardinal rule ( Matter of James, 146 N.Y. 78).
Moreover, it has long been settled by our decisions that where all of the realty is left in trust, such trust is "inconsistent with the right of the widow to manage or control any part of the realty," i.e., inconsistent with her right of dower ( Matter of Gorden, 172 N.Y. 25; Savage v. Burnham, 17 id. 561; Tobias v. Ketchum, 32 id. 319; Vernon v. Vernon, 53 id. 351). The same principle for the very same reason must extend to a power in trust like that given by the present will over the half of the realty left to the children. The power to divide it into three equal parts, and assign one to the possession and control of each child, is as inconsistent with the widow being given possession and control of a part, i.e., of two thirds thereof, as it would be in the case of a full trust.
The case of Konvalinka v. Schlegel ( 104 N.Y. 125) may seem a stumbling block until you perceive that there the realty was converted into personalty by an imperative power of sale, and that therefore no physical difficulty of the division of land was presented. In the case of Lewis v. Smith ( 9 N.Y. 502), where the devise was of the whole estate to the widow for life, with remainder over, it is manifest that the widow was not put to her election, for her claim of dower, as is there pointed out, could not conflict with the interest of any one who took under the will. There was no one to put her to an election; and if the husband's debts were sufficient to consume the estate, so that her dower estate in a third was worth more than a life estate in the whole, she had the right to hold her dower estate away from the creditors.
The judgment should be reversed, and judgment given in accordance with the foregoing.
WOODWARD, JENKS, HOOKER and RICH, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the final award of costs.