
    George Orth, as Executor, etc., of Mary Bowen Orth, Deceased, Respondent, v. William Bowen Haggerty and Others, Appellants, Impleaded with John J. Haggerty and Others, Defendants.
    Fourth Department,
    May 6, 1908.
    Will construed — bequest in lieu of dower.
    When the real estate of a testator is devised so as to indicate clearly that he did not intend the use of one-third thereof to belong to his widow, she is put to her election as between a bequest for her benefit and her claim for dower.
    Where a will does not expressly state that a provision for the wife is in lieu of dower, but it is clearly the testator’s intention that his entire real estate be held in trust until his youngest great-grandson becomes of age; that his executor shall manage, repair and improve it as a whole, and that the whole of the realty shall go to his great-grandchildren on their coming of age, a bequest to the wife will be deemed in lieu of dower, and if she elects to have the former she cannot take the latter.
    Appeal by the defendants, William Bowen Haggerty and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Livingston on the 1st day of August, 1907, upon the decision of the court, rendered after a trial at the Livingston Trial Term, a jury having been waived, awarding damages against the defendant Fitch M. Davis, as administrator, etc., of William Bowen, deceased, for withholding dowez-, with notice of an intention to bring up for review upon such appeal an interlocutory judgment entered in said clerk’s office on the 15th day of Februazy, 1906, which adjudged that Mazy Bowen Orth was at the time of the death of William Bowen, and thereafter during her lifetime, entitled to dower in the lands described in the complaint, and designated a referee to determine the damages which plaintiff was entitled to recover from the defendants, or aziy of them, for withholding such dower.
    The action was commenced on the 26th day of June, 1902, by Mazy Bowen Orth (since deceased), then the wife of plaintiff and the widow of William Bowen, who died on the 25th day of August, 1899, leaving a last will and testament, which was duly adznitted to probate, to recover dower in the lands which he owned in his lifetime. The defenses set up were: First, that the provision for the said Mary Bowen Orth in the will of her husband was intended to be and was in lien of all dower in the lands owned by him; and, second, the Statute of Limitations. The action was begun against William Bowen Haggerty and John J. Haggerty, Jr., the great-grandsons of the testator, then infants under the age of fourteen years, and his only heirs at law, and John J. Haggerty, individually and as executor and trustee under the will of the testator, William Bowen. Edward Haggerty, George Swingle and Cynthia Burdoff were also named as defendants, because, as alleged, they were in the possession of real estate described in the complaint, or some portion thereof, and were occupying the same as tenants.
    On the 25th day of January, 1904, an interlocutory judgment was granted and duly entered against said defendants by default, which was practically the same as the one which is sought to be reviewed upon this appeal.
    During the pendency of .the hearing before the referee designated by such interlocutory judgment, so entered upon default, and on the 27th day of May, 1904, said Mary Bowen Orth died, leaving a will and testament by which this plaintiff, George Orth, was named as executor, and thereafter letters testamentary were duly issued to him and by order of the court made on the 27th day of March, 1905, he, as executor, was substituted as plaintiff and authorized to continue the action in the place of Mary Bowen Orth, deceased. Thereafter and on the 1st day of April, 1905, the then defendant, John J. Haggerty, was removed by the surrogate of Livingston county as executor and trustee and the- defendant, Fiteli M. Davis, was duly appointed administrator with the will annexed, and by order of the court made on the 17th day of April, 190&, said Davis, as such administrator, was duly substituted as defendant in the place of said John J. Haggerty, removed.
    On the 3d day of May, 1905, on motion of the defendant Fitch M. Davis, as administrator, the default taken against the defendant, upon which the interlocutory judgment had been entered, was opened, and such interlocutory judgment was vacated and set aside, upon condition; however, that the right of the plaintiff to recover damages for the withholding of the dower of his testatrix should be held not to be affected in any manner by the death of said testatrix, but that if it should be determined that she was entitled to dower at the time of the commencement, of the action, then the plaintiff might recover the damages for withholding the same, precisely as if such interlocutory judgment had not been vacated, and upon the further condition that said Davis, as administrator, pay certain costs and expenses, which conditions were accepted by defendants. Thereupon the plaintiff served the amended complaint herein upon the defendant Davis, as administrator with the will annexed, and also upon William A. Sutherland, guardian ad litem, for the infant defendants William Bowen Haggerty and John J. Haggerty, Jr. Answers were served for and on behalf of said infants and said defendant Davis, as administrator, setting forth practically the same defenses that were interposed to the original complaint.
    The estate of William Bowen, deceased, consisted of $43,000 of personal property and real estate valued at $8,547.96. The chief question presented by this appeal is whether plaintiff’s testatrix, the widow of William Bowen, deceased, .was entitled to dower in the lands of which he died seized, she having concededly accepted during her lifetime the fruits of a provision contained in the will of William Bowen, made for her benefit. The answer to the question depends solely upon the interpretation which should be given to the language of the will, there being no conflict of evidence as to the facts.
    
      Edwin A. Nash, W. A. Sutherland and George W. Atwell, for the appellants.
    
      William De Graff, for the respondent.
   McLennan, P. J.:

The sole provision for the benefit of Mary Bowen Orth, the widow of William Bowen, deceased, expressed in his will was a gift of the income during her life of a fund of $1.0,000, with the further direction that she should have the right to use the whole or any part of the principal of such fund if at any time “ necessary for the comfortable support and maintenance of my said wife.” Between the time of the probate of the will and the death of plaintiff’s testatrix, there had been paid to her at different times by the executor and trustee, as income of said $10,000 trust fund, the sum of $1,875, and the same was accepted by her as such income.

The clause of the will which disposes of the real estate of which William Bowen died seized is as follows:

“ First. After the payment of all my debts, if any there shall be, my funeral expenses and the costs of administering my estate, I give, devise and bequeath unto my two great-grandchildren all of the real estate of which I may die seized and possessed, and wheresoever situate, to be divided equally between them ; the two great-grandchildren hereinbefore referred to, and to whom this devise is made, being William Bowen Haggerty and John J. Haggerty.
“ Upon my decease before said children arrive at the age of twenty-one years, said real estate shall remain in the hands of my executor hereinafter named until the youngest of said children shall arrive at the age of twenty-one years, said executor to accumulate the rents and profits thereof and at the arrival of said youngest child to the age of twenty-one, said executor shall account to and pay over said 'accumulation to said great-grandchildren, less his expenses for necessary repairs and improvements which he is authorized to make, and also a liberal allowance for his services in executing such trust. Also all expenses and disbursements of conducting said trust.”

It is the appellants’ contention that from the language employed by the testator in disposing of his real estate and providing for the support and maintenance of his wife during her life, it ought to be held that he did not intend that the widow should enjoy the fruits of the legacy given to hen and be entitled to demand in addition dower in the real estate. The will does not, in express terms, state that the provision for the support and maintenance of the wife shall be in lieu of dower and there are no facts disclosed by the record which, independent of the will itself, throw any light upon the testator’s intention.

The language, however, we think is not ambiguous and, if not, it should be given its ordinary meaning in ascertaining the testator’s intention which, in such cases, is always the essential thing to be determined. The only legacy given by the testator to his wife was the income of $10,000 during her life, with the right to demand the whole or any part of the principal sum if necessary for her comfortable support and maintenance. We are not informed and it would not be proper to inquire whether or not the provision thus made was suitable and ample, although it does appear that her necessities did not require her to use the entire income of the fund. Of course, if there was no other provision in the will indicating a contrary intention, the widow would be entitled to her dower, wholly irrespective of the amount of the bequest to her. The rule is well settled that to bar a widow’s dower the testator must have intended such a result and such intention must clearly appear. To bar a claim of dower because of the acceptance of a legacy, such claim must be inconsistent with and repugnant to the provisions of the will respecting the disposition of the real estate. (Adsit v. Adsit, 2 Johns. Ch. 450.) And if there is a reasonable doubt as to the testator’s intention in that regard, the widow takes both dower and the legacy. (Matter of Gorden, 172 N. Y. 25, 28.) But it is equally well settled that where the real estate of a testator is disposed of by will in such manner as to clearly indicate that he did not intend that the use of one-third of it should belong to the widow, she is put to her election as between -a bequest for her benefit and her claim for dower, and, if she elects to take the former, she cannot have the latter.

In Asche v. Asche (113 N. Y. 232, 235) the court said: “ Although there is no express language providing that the bequest to the widow shall be in lieu of dower, yet where there is a manifest incompatibility between such provision and dower, it is held that she cannot take both, and is put to her election between them.” (Citing Vernon v. Vernon, 53 N. Y. 351; Konvalinka v. Schlegel, 104 id. 125; Matter of Zahrt, 94 id. 605.)

The provision of the will which is here the subject of controversy relating to the disposition of the testator’s real estate should be considered as a whole, and if so considered it seems to me that the intention of the testator respecting it is plain and absolutely free from doubt. I interpret the language of the provision to be that in case the testator survived the period when his youngest great-grandson should reach the age of twenty-one years, then upon the testator’s death all his real estate should immediately go to his two great-grandsons, share and share alike. But in case he died before his youngest great-grandson should become twenty-one years of age, then such real estate went to the executor in trust, to be held by him until such time, and in such event the execqtor was directed “ to accumulate the rents and profits thereof and at the arrival of said youngest child to the age of twenty-one, said executor shall account to and pay over said accumulation to said great-grandchildren, less his expenses for necessary repairs and improvements which he is authorized to make, and also a liberal allowance for his services in executing such trust. Also all expenses and disbursements of conducting said trust.” .

The purpose of the testator which, as it seems to me, is very clearly expressed, was to prevent his great-grandsons from coming into the possession of the real estate until the youngest of them became twenty-one years of age. In case he survived such date no trust was necessary; but if he did not, then he considered it prudent to create a trust and to name a trustee, who should be charged with the duty of taking possession of and of controlling, managing and improving such real property, collecting the rents and profits and then to turn it all over to such great-grandsons when the youngest should reach the age of twenty-one years.

By the provision in question the trustee was directed to take possession of, control, manage and improve the entire real estate of which the testator should die seized, not two-thirds of it, or any less than the whole. The trustee was directed to take possession of all of the real estate, to manage, keep in repair and improve the whole of it and to accumulate the income arising from it all during the minority of the youngest great-grandson. To hold that the widow in such case was entitled to the possession and use of one-third of such real estate during her natural life, or, in case it could not be divided, to compel a sale to the end that she might receive the value of her dower, would interfere with and practically nullify the' scheme of the testator respecting the disposition of his real property.

In Tobias v. Ketchum (32 N. Y. 319) the testator empowered his executors to rent, lease, repair and insure his real estate until sold or divided and out of the rents and profits to pay the provision made for the widow, and it was held a devise to them of the legal estate, in trust, and inconsistent with the claim of dower therein. The widow was accordingly put to her election.

In the Zahrt Case (supra) the obligation imposed by the testator, to keep the buildings insured, pay all taxes and keep the estate in good repair, was held inconsistent with the assertion of a dower right.

As was said in Matter of Gorden (supra, 33): “ Furthermore the direction ‘ to keep the real estate in repair and to insure against loss by fire,’ manifestly meant the entire estate, not -two-thirds thereof, for no division in the management, possession or control was in contemplation.”

We conclude that it was clearly the intention of the testator that his' entire real estate should be held in trust by'the executor until his youngest great-grandson should become of age; that such executor should manage and control it all, repair and improve it as a whole, and when such youngest child reached the age of twenty-one that the whole of such real estate should be turned over to him and his brother, share and share alike, together with the accumulated income therefrom, after deducting the amount expended for repairs, improvements and expenses and a •“ liberal allowance for his services in executing such trust,” and-that such intention thus clearly expressed by the language of the will was incompatible with and repugnant to the idea that the widow should be entitled to the possession of one-third of such real estate during her natural life, or the value of such use in case it could not be divided.

The interpretation of the will contended for by the respondent . would, as it seems to me, nullify the intent and scheme of the testator in the disposition of his real property as manifested by his will, and we conclude that plaintiff’s testatrix, having accepted the legacy bequeathed to her, was not entitled to dower in the premises of which her husband died seized. Having thus concluded, we deem it unnecessary to consider the other questions raised by the appellants upon this appeal.

It follows that the final and interlocutory judgments should be reversed and a new trial granted, with costs to the defendants to abide event.

All concurred, except Robson, J., not sitting.

Final and interlocutory judgments reversed and new trial ordered, with costs to appellants to abide event.  