
    Allrich Jurgens, Pl’tf, v. Wilhelmina Rogge et al., Def’ts.
    
      (Supreme Court, Kings Special Term,
    
    
      Filed February 6, 1896.)
    
    2. Dower—Devise n<r lieu of.
    
      A. husband's testamentary provision for his wife is not to be deemed as intended in lieu of dower, unless the will makes it so by express words, or a claim of dower will be inconsistent with other parts of the will or with its general plan. " ,
    S, Same.
    
      A devise to the widow for life or until she shall remarry, with the further provision that in the latter event the widow shall retain one-third of the then remaining estate, and that the balance shall he equally divided among the four children, is inconsistent with the claim of dower.
    Action for partition of real estate under provisions of a will
    J. R Soley, for pl’ff; S. T. Maddox, for def’ts.
   GAYNOR. J.

—A husband’s testamentary provision for his wife is not to be deemed as intended to be in lieu of dower, unless the will makes it so by express words, or a claim of dower would be inconsistent with other parts of the will or with its general plan. In either case, the widow is put to her election. By this will, the testator left all of bis property, real and personal, to his widow, so long as she remained his widow, for her sole use and benefit, and then added, viz.: “In case my widow should marry again, she may retain one-third of my then remaining estate; the balance to be divided share and share alike between my four children.” He died in 1877, and the widow was remarried. I£ the devise had been to the widow far life or until she should remarry, with remainder to the children upon the happening of either event, it would not be in lieu of dower, Bull v. Church, 5 Hill, 206; 2 Denio, 430 ; and the same would be true of a devise for life simply, with remainder to the children. Lewis v. Smith, 9 N. Y. 502. But the present case is different. It is a devise to the widow for life or until she should remarry, with the further provision that in the latter event the widow should retain one-third of the then remaining estate, and that the balance should be equally divided among the four children. Provision is made for her out of the remainder; so that the case is the same as though the will had provided for a like division upon the testator’s death, there being no life estate. I think this provision is inconsistent with a claim of dower. If the widow is to take one-third of the real estate under the will, and also have one-third set off by metes and bounds for her dower, only one-third remains for present division among the children. The language of the testator did not intend this, and1 the intention must govern. It must not be disturbed or disappointed. Adsit v. Adsit, 2 Johns. Ch. 448. The manifest, intention of a testator overrides rules of construction. They may be resorted to only when the intention is not manifest from the language of the will, naturally construed. They are never resorted to except out of necessity, namely, to spell out an intention. In re James; 144 N. Y. 7,8; 62 St. Rep. 855. I have not overlooked the Konvalinka v. Schlegel Case, 104 N. Y. 125 ; 5 St, Rep. 562. There was there a peremptory power of sale of the real estate, with a direction to divide the proceeds equally among the wife and children; so that the impossibility of dividing the land among them “equally,” by metes -and bounds, if the widow was also entitled to first have one-third of it set off to her by metes and bounds for her dower, was not presented. In Havens v. Havens, 1 Sandf. Ch. 324, the vice chancellor supposes a case (page 331) something like the present one, in which he says the widow would be entitled to her dower in addition to the devise to her, but his remarks are obiter. The devise of the one-third to the widow upon her remarriage is not for life, but absolutely. The words are that “she may retain one-third of my then remaining estate.” I do not see how this can be construed to mean that she might retain only one-third of her life estate. Besides, if she was only to take the one-third for life, there would be partial intestacy as to which third, and the presumption is against such an intention in the testator. Schult v. Moll, 132 N. Y. 122; 43 St. Rep. 484. It is manifest from the will that the testator meant to make thereby a complete disposition of his entire estate. Judgment accordingly.  