
    Matter of the Estate of Henry Bostwick, Deceased.
    
      (Surrogate’s Court, Dutchess County,
    
    
      January, 1906.)
    Wills—Interpretation—Terms creating legacies and gifts of income —Interest on legacy—On legacy in lieu of dower.
    A legacy in lieu of dower does not draw interest until one year-from the issuance of letters testamentary.
    Where a testator by an ante-nuptial agreement has agreed that his. executors should pay his wife within six months after his death four thousand dollars, with interest thereon from the date of his death,, to release her dower and to make no claim of any nature against his. estate, a direction to his executors to pay such sum is unnecessary except for their information as to the existence of said agreement; and, where, in addition thereto, he directs the payment of six thousand dollars, the words “ which sums aggregating ten thousand. (10,000) dollars are to be accepted by my wife in full satisfaction and in lieu of dower in my real estate, as agreed between us in said ante-nuptial agreement,” are surplusage and of no legal importance, and the six thousand dollars is a general legacy which draws interest from one year after letters testamentary are issued.
    Modified, 116 App. Div. 455.
    Proceeding for the judicial settlement of the account of an executor.
    O. W. H. Arnold, for W. M. Bostwick, executor; Allison Butts and John Hackett, for Emma F. Bostwick, widow of testator.
   Hoysradt, S.

On the 13th day of March, 1899, Henry Bostwick and his intended wife, Emma E. Davis, entered into an ánte-nuptial agreement, which provided, among other things, that within six months after the death of Mr. Bostwick his executors should pay $4,000, with interest from the date of Ms death, to-her; and in consideration of this provision she agreed to release her dower and to make no claim of any nature against the estate of her husband.

After the execution of this agreement the parties were married. Mr. Bostwick executed his last will September 17, 1904, and died October 3, 1904. The will contains this provision:

“ Eirst, whereas I made an ante-nuptial agreement with my wife, Emma F. Bostwick, by which I agreed to give her and she agreed to accept the sum of four thousand (4,000) dollars in full satisfaction of any claim she might have against my estate and in lieu of dower, and whereas I have decided to increase the amount to be given her to ten thousand (10,000) dollars,
“ How, therefore, I direct my executor hereinafter named, to pay the said sum of four thousand dollars to my wife as provided in said agreement, and in addition thereto the further sum of six thousand (6,000) dollars, which sums aggregating ten thousand (10,000) dollars are to be accepted by my wife in full satisfaction and in lieu of dower in my real estate, as agreed upon between us in said ante-nuptial agreement.”

The widow has claimed interest on $10,000 from the death of the testator on the theory that the will is a modification of the agreement, or should be construed with it, and, further, because the whole provision was made in discharge of her dower. Considering the latter point first, it would seem that the widow had, by the ante-nuptial agreement, obligated herself to accept $4,000 in lieu of her dower, and, as the testator’s real estate was valued at $14,092, it will be seen that its terms were very favorable to her. The payment to her of the further sum of $6,000 provided! for by the will could not, therefore, form .any of the consideration for the discharge of her dower, and she has no legal claim for interest on that contention from the death of her husband.

In addition, it is now well settled that an absolute legacy to •a wife in lieu of dower does not draw interest until one year from the issuance of letters testamentary, and it is only where the interest of a trust fund is given in lieu of dower that it runs from the testator’s death. Matter of Barnes, 7 App. Div. 13, affd., 154 N. Y. 737.

I think a proper consideration of the other question requires that the ante-nuptial agreement should be regarded, by itself, ■■as giving the widow more than she was entitled to by law, capable of enforcement in equity and irrevocable except by mutual covenant or release. The husband could not add to or detract from its effectiveness in terms by any provision in his will. He chose to direct that his executors pay her the “ further sum of :$6,000.”

In Washburn v. Weeks, 44 N. Y. St. Repr. 922, a testator ■had obligated himself by a marriage settlement to give his wife by will $4,000 and the use of $4,000 more. He left her the use of $4,000 with power to use the principal. The General Term, Second Department, Justice Barnard writing the decision, held that payment of the obligation was not established even if the wife said she was satisfied. Her rights were independent of the will. Hothing but payment or release, with full knowledge of the facts, would satisfy.

In Peck v. Vandemark, 99 N. Y. 29, the testator sought to evade his ante-nuptial agreement to leave one-half of his estate to his wife by a provision in his will, and the court held that the agreement was unaffected.

Construing the provision in Mr. Bostwick’s will, the fair and reasonable deduction is that the testator, fully realizing that he had provided $4,000 for his wife in full satisfaction of any claim she might have against my estate and in lieu of dower,” directs the payment of this Bum and, in addition thereto, the further sum of $6,000. I regard the direction to pay the $4,000 as unnecessary, except for the information of the executors as to the existence of the agreement. The words, which sums aggregating $10,000 are to he accepted by my wife in full satisfaction and in lieu of dower in my real estate as agreed upon between us in said ante-nuptial agreement,” are surplusage and of no legal importance, as the testator had purchased his wife’s dower for the original $4,000 more effectively than he could bind her by his will.

For these reasons I have concluded that the provision in the will, directing the payment of $6,000, is a general legacy which draws interest from one year after letters were issued, and was so intended by the testator.

Decreed accordingly.  