
    Otto Kirchner and Charles Kirchner, as Executors of the Last Will and Testament of Charles Kirchner, Deceased, Plaintiffs, v. Philip Kirchner et al., Defendants.
    (Supreme Court, Dutchess Trial Term,
    February, 1911.)
    Life estates—Liabilities as between life tenants and remaindermen — Assessments for local improvements; Insurance premiums.
    Trusts: Execution and administration of trusts — Creation of charges, mortgage and lease of estates — Creation of charges on estate: Termination and abrogation of trust — Fulfillment of purpose — Widow’s election to take dower.
    Where a testator made provision for the dower of his widow by a trust of his entire estate, one-third of the income to be paid to her during life in lieu of dower, and at her death, after several pecuniary legacies, devised a certain valuable piece of real property to a nephew and the residue of the testator’s estate to several
    
      nephews and nieces to whom the remaining two-thirds of the income was payable during the widow’s life to be divided among them equally, but the widow elects to take her dower and brings suit for its admeasurement, held:
    The trust is not terminated as to the personal estate and the real property specifically devised by the widow’s election to take her dower, but continues during her life for the the benefit of the others entitled to share in the income of the trust estate; and the pecuniary legacies are not payable until the termination of the trust.
    The election of the widow, however, terminates the trust as to the residuary legatees, who are entitled to enter into immediate enjoyment of their shares, except so much thereof as is required to secure payment of the pecuniary legacies on the death of the widow.
    The real property specifically devised continues to be subject to the trust until the death of the widow.
    A new cement sidewalk laid in front of one parcel of the testator’s real property is a permanent improvement whose cost should be apportioned between the life tenant and the remainder-men. The same rule is applicable to insurance on the buildings.
    Action by executors for accounting and construction of a will.
    John E. Mack, for plaintiffs.
    William A. Mulvey, for defendants.
    John Hackett, guardian ad litem.
    
   Morschauser, J.

The will of Charles Kirchner, deceased, was duly admitted to probate in the Surrogate’s Court, in Dutchess county. Otto Kirchner and -Charles Kirchner qualified as executors and trustees.

The scheme of the will was that, after making certain bequests, all the rest of the real and personal property was devised and bequeathed to the executors in trust, they to pay one-third of the net income to the widow during her life, and the remaining two-thirds of the net income to be paid equally to the seventeen nephews and nieces, mentioned in article if of said will, during the widow’s life.

After the death of the widow, $1,000 "was given to each of the legatees, Belle Hey and Caroline Eckert. A valuable piece of real estate, known as the Kirehner Hall ” property, subject to the trust provision of the will, was given to Otto Kirehner, Wilhelmina Kirehner and Philip Kirehner absolutely. The remainder of the estate was given to the testator’s seventeen nephews and nieces mentioned in article 11 of the will equally.

The widow having elected to take her dower instead of the property devised by the will brought an action for ad-measurement thereof; and she has been paid, as provided by the decree, out of the residuary estate, and no part was taken from the property known as Kirehner Hall;” and the residuary estate was thereby diminished.

The persons entitled to the remainder, pursuant to the terms of the will at the termination of the widow’s life estate, are ascertainable, and the devisees under the will are determinable.

The following questions are submitted for determination:

(1) Are the legatees Belle Hey and Caroline Eckert entitled to be paid their legacies now, or are the legacies payable upon the death of the widow?

(2) Does the election of the widow terminate the trust as to the property known as Kirehner Hall,” and are the remainders accelerated so as to entitle the devisees, Otto Kirehner, Wilhelmina Kirehner and Frederick Kirehner, to immediate possession; and, if it does, shall there be any deduction or charge made against this property, either for dower or for life use ?

(3) Does the election of the widow terminate the trust as to the remainder of the estate; that is, are the remainders accelerated by the refusal of the widow to accept the provisions of the will for her benefit; and shall such remainder of the estate be distributed at this time, or shall distribution be delayed until the death of the widow? -

(4) Is the assessment for the new cement sidewalk upon the' Kenyon property to be paid out of the life use of the widow, or to be paid out of the residue ?

The same rule applies to the questions first and second.

Where a trust is created, for the benefit of the widow and others, her share to be in lieu of dower, it is held that her election not to take under the will does not defeat the operation of the trust for the benefit of other parties in interest. Page Wills, 874; Portuondo Estate, 185 Penn. St. 472.

As the dower of the widow has been paid out of the residuary estate, as directed by the decree, it would he manifestly inequitable to terminate the trust without charge for dower and to deprive the residuary legatees of the use of the Kirchner Hall ” property during the widow’s life, and of the use of the $2,000 given to the Hey and Eckert legatees; while, if the trust is continued until the death of the widow, the legatees and devisees mentioned in questions one and two will receive the same benefits intended by the testator, while the residuary legatees receive, not only the two-thirds provided by the will, but an additional one-third, being the net income from the Kirchner Hall ” property. They will, in effect, receive the same benefits intended for them by the testator, and the additional one-third of the income'compensating for the widow’s dower, which has been paid from' their residuary.

Where the widow by her election causes a diminution of the estate devised to others, determinable under the will, then, whatever she renounces by her election of necessity results to the indemnity and inures to the benefit of those who are injured by her acts.

Justification for the foregoing construction and disposition is found in some of the cases in this and other jurisdictions.

In the case of Sarles v. Sarles, 19 Abb. N. C. 322, this question was carefully considered by Lawrence, J.; and it was held, where the widow of a testator declined to accept the provisions of the will in lieu of dower, and elected to take her dower in the real estate of which her husband died seized, the devisees of the real property upon which such dower interest became charged might have recourse to the property rejected by the widow to indemnify them against their loss by reason of their devised property being subject to the charge for dower.

The renunciation of the widow could not defeat the gift of the remainder, hut the latter becomes immediately accelerated, but charged, however, with the equity in favor of disappointed devisees. .See also author’s notes at the end of this case.

The Sarles case was cited with approval in Tehan v. Tehan, 83 Hun, 368—371, citing:

In Gallagher’s Appeal, 87 Penn. St. 200, the testator devised certain lands to his sister; and, after making provisions for his widow, left the remainder of his estate to nephews and nieces. The widow refused to take under the will, and it was held that the sister was entitled to have the assets marshaled and a sufficient amount set apart to relieve the land devised to her from the burden of the widow’s dower.

In Sandoe’s Appeal, 65 Penn. St. 314, the widow refused to take under the will. It was held that a court of equity would sequester the devises and bequests intended for her to secure compensation to those whom her election disappointed. Citing also McCallister v. Brand, 11 B. Mon. (Ky.) 370; Firth v. Denny, 2 Allen (Mass.), 468; McReynolds v. Counts, 9 Gratt. (Va.) 242; Dean v. Hart, 62 Ala. 308; Worth v. Atkins, 4 Jones Eq. (N. C.) 272; Story Eq. Juris. (13th ed.) 415, 465; Pom. Eq. Juris., § 1083; Jarman, Wills, 683.

In Firth v. Denny, 2 Allen (Mass.), 468, where a testator by his will, after absolute devises and bequests, directed a certain sum to be invested and the income thereof to be paid to his wife during life and after her death to be distributed among various legatees in certain specified sums and gave the rest of his estate to his residuary legatees; and where he left no issue and his widow waived the provisions in the will in her behalf and thereby became entitled to a larger estate than the will gave her, it was held that the residuary legatees were entitled, during the life of the widow, to the income of the fund provided for her and, after her death, the principal should go to the legatees named in the will, in like manner as if the widow had accepted the provisions therein made for her. Plymton v. Plymton, 6 Allen (Mass.), 178.

In the case of Matter of Lawrence, 36 Misc. Rep. 276, it was held that where a widow’s election to take dower, rather than the provisions of the will, makes it necessary to appropriate to the satisfaction of her .dower proceeds of the sale of real estate given by the testator to others, the parties benefited should contribute in proportion to their benefits to make up the losses of those who have been disappointed by the widow’s election. Citing the Sarles and Toban eases, supra, and other cases.

As to the third question, the widow and the seventeen residuary legatees are the only persons interested in the residuary estate.

The rights of the residuary legatees as between themselves are equal and determinable.

The estate devised to the residuary legatees has been depleted to the extent of the widow’s dower.

An immediate distribution of the residuary estate among the residuary legatees will be equitable and just; the election of the widow to take under the law accelerates these remainders and the beneficiaries enter into immediate enjoyment.

The authorities seem unanimous that, in the absence of a controlling equity or an expressed or implied provision in the will to the contrary, the renunciation of a life estate accelerates the remainder. Sarles v. Sarles, supra; Holden v. Holden, 18 L. N. S. 272.

The “ Kirchner Hall ” property should be held in trust during the life of the widow. All of the net' income shall be paid to the residuary legatees mentioned in article 11.

On the death of the widow, the property shall belong to Otto Kirchner, Wilhelmina Kirchner and Philip Kirchner absolutely, free from all liens and charges except the mortgage thereon at the time of the decease of the testator.

The legatees Belle Hey and Caroline Eckert shall each be paid their legacy of $1,000 upon the death of the widow. •

The premises known as the Kenyon property, valued at $10,000, which, upon the death of the widow under the provisions of the decree in the action for admeasurement of dower, is directed to be sold and the proceeds to be distributed among the residuary legatees, is sufficient security for the legacies of these two legatees; and, upon the sale after the death of the widow, these legacies shall first be paid from the proceeds of sale, and the remainder shall be distributed to the residuary legatees.

There is no injustice done to the devisees Otto Kirchner, Wilhelmina Kirchner and Philip Kirchner, because they obtain just what the will gives to them and because their devise is not changed in any particular by the election of the widow; as, under the terms of the will, the income of this property'was to be shared by the legatees mentioned in paragraph 11 of the will and the widow until her death.

By this construction the residuary legatees are entitled to the" income until the death of the widow, and upon her death the provision of the will for the benefit of these three legatees takes effect, there being no difference to them whether the widow takes under" the will or by election.

The fourth question is as to the payment of the assessment for the new cement sidewalk on the Kenyon property.

This is a permanent improvement. It is well settled that a municipal assessment for a sidewalk is not in the nature of an annual tax, to be paid entirely by a tenant for life of the premises assessed. Kor is it such a permanent improvement as that the tenant for life should not contribute to its payment, but it should be apportioned between the life tenant and the remaindermen. Peck v. Sherwood, 56 N. Y. 615; Chamberlain v. Gleason, 163 id. 214.

This rule also applies to the expense for insurance on the building. The widow’s portion of the assessment may be computed according to rule 70 of the General Buies of Practice.

An intermediate account may be presented in accordance herewith.

Judgment accordingly.  