
    Mary Ann Kimbel, Appellant, v. Anthony Kimbel, Jr., and Charles F. Bauerdorf, as Executors, etc., of Anthony Kimbel, Deceased, Kespondents, Impleaded with Others.
    
      Dower—effect of a gift to others of the residuary estate — effect -of a power of sale-to executors,.
    
    A testator gave $50,000 to his executors in trust to pay over the income thereof to his wife. The rest, residue and remainder of his estate, real and personal,, he devised to his.-seven children, and gave his ^executors a power of sale “for the purpose of dividing my estate, to pay the legacies or devises hereinbefore mentioned, or for ¡the more conveniént managing of my estate, or for any other reason that may commend itself to my executors hereinafter named. ”
    
      Held, that the provision for the widow was not made in lieu of her dower,;
    That it was .not necessary, in order to establish the widow’s right to- take both her dower and also under the provisions of the will, to affirmatively show that the testator so intended, but in order that she should be. required to elect between the two; it must clearly and manifestly appear by implication that he intended that the widow should not take under the provision made: for her in the will otherwise than in lieu of dower;
    That the gift of the residuary estate to the children of the testator only affected the disposition of what was left of the estate after dower had been deducted ; That the power óf sale given to the. executors was not inconsistent with the-existence of a dower interest in the widow.
    Semble, that if the will had directed a sale free from incumbrances it would have been otherwise.
    Appeal by the plaintiff, Mary Ann Kimbel, from a judgment of the Supreme Court hi favor of the defendants, entered in the office of the clerk of the county of Westchester on the 5th day of December, 1896, upon the decision of the court rendered after a. trial at the Westchester Special Term.
    
      Sidney H. Stuart, for the appellant.
    
      Robert E. Deyo, for the respondents,
   Bradley, J.:

Action for dower. The plaintiff is. the widow of Anthony Kimbel, deceased. He left his will, which was admitted to probate and record. By it he gave the plaintiff §1,000, to be paid to her within sixty days after his death. By the following and third clause he bequeathed to her all his furniture in his Hew York residence.' By the fourth clause he bequeathed to her and his children all his engravings, pictures and books in that residence, to be divided equally between them. His children were seven in number. By the fifth clause he bequeathed to the executors of his will §50,000 in trust, to invest the same and pay the income to the plaintiff in quarterly or semi-annual payments during her life. By the sixth clause he devised and bequeathed all ‘the rest, residue and remainder of his estate, real and personal, to his children, share and share alike. And the following is the tenth clause of his will: “ For the purpose of dividing my estate to pay the, legacies or devises hereinbefore contained, or for the more convenient managing of my estate, or for any other reason that may commend itself to my executors hereinafter named, I hereby authorize and empower them, or the survivor of them, to sell all, or such part, of my real estate, at such time and upon such terms as they, or the survivor of them, may deem advisable, either at public or private sale, and to give good and sufficient deeds and conveyance thereof.”

Those above mentioned are the only provisions of the will requiring any attention for the purposes of the questions arising for consideration on this, review. The controversy presented by the issues is whether the plaintiff shall be put to her election to accept the provisions of the will in her behalf or waive the benefit of them and take her dower interest in the realty. In other words, the question is whether the bequests in the will to the plaintiff, andin her behalf, were made to her in lien of dower. The court at Special Term,, in an able opinion, reached a conclusion in the affirmative, of that proposition. We are unable to adopt that view of the provisions of the will.

In the early history of the common law dower was recognized as a right, and thereafter had its support, and dower has since become the subject of declaratory statute.in this State. (1 R. S. 740, § 1.) The statute provides that if provision be made for her by will in lieu of her dower, she shall make her election whether she will take such provision or will be endowed of the lands of her husband. (Id. 741, § 13.) The will in question does not in terms provide that the bequests to the plaintiff are.in lieu of dower, nor can such be the effect unless rendered so by clear’and manifest implication from the provisions of the will, and such implication must be founded on the fact that the claim of dower is inconsistent with or so repugnant to' the disposing provisions of the will as to defeat their execution. (Fuller v. Yates, 8 Paige, 325; Sanford v. Jackson, 10 id. 266 ; Konvalinka v. Schlegel, 104 N. Y. 125.)

The reason for the strict‘rule of construction and interpretation of the provisions of a will, bearing, upon the question of intent of a testator in such case, is in the fact that dower is favored in the law, and the necessity of the widow to elect whether she will relinquish or ' retain her right to it is not permitted to rest upon doubt or uncertainty. And, although, there has been some apparent conflict in its •application by the courts, the principle has with substantial uniformity been such in England and' in this country. In the early ■case in this State of Adsit v. Adsit (2 Johns. Ch. 448) maybe found •an interesting and instructive review by the chancellor of English cases on the subject, and he said that, to permit such implication as to require the widow to elect, the claim of dower must be inconsistent with the will and repugnant to its dispositions, or some of them.”

It cannot be assumed from the extent of the pecuniary provision made by the will of a husband to his wife that he intended it in lieu of dower. The view on that subject, as expressed by the chancellor in Fuller v. Yates (8 Paige, 325), was : “ Taking the whole disposition which the testator has made of his property into consideration, it can hardly be said he intended to give her dower in addition to the testamentary dispositions in her favor; and probably if the question of dower had occurred to him, he would have inserted a provision in the will declaring that the dispositions in her favor should be in lieu of dower in the residue of his estate. But it is not sufficient to bar her dower that he did not think on the sub ject; as that would only indicate a want of intention either one way or the other.” The provisions of the will in the present case relied upon to support the alleged intent of the testator, that the bequests to the plaintiff were made in lieu of dower, are those of the sixth and tenth clauses, ■ to the effect that he gives all the residue of his estate, real and personal, to his children, and gives to the executors power of sale for the purposes mentioned, and expresses the grant of power “ to give good and sufficient deeds and conveyance thereof.”

The gift of the rest, residue and remainder .of his estate, real and personal, to his children, was not inconsistent with the right of dower" of his widow in the real estate. Her interest, inchoate until the death of the testator, ffien became consummate in the real property as to- which there was a concurrence of his seisin and the marriage relation of- the testator and the plaintiff, except so far as she had barred her dower during his life. The gift of the residue of his estate, after making some provision for her, does not purport to include her dower interest in such residue, but only such estate as was his to give. And this would be so if she had been included as one of the beneficiaries of the' gift and devise of the residue. In Konvalinka v. Schlegel (104 N. Y. 125) the testator, by the terms of his will, gave all the rest, residue and remainder of his estate to the executors to sell and divide the proceeds equally among his wife and children. The question there was whether the widow was required to elect. The court, in holding that she was not put to her election, remarked that the dower is never excluded by a provision in a will for a wife “except by express words or by necessary implication,” and that the only sufficient and adequate demonstration which, in the absence of express words, will put the widow to her election, is a clear incompatibility, arising on the face ■ of the will, between ia claim of dower and a claim to the benefit given by the will.” This is the accepted and settled doctrine of the adjudicated cases on the subject.

•The provisions of the tenth .clause created no trust, but a mere power of sale, and nothing’ is added to the effect of it as bearing upon the question under consideration by the expression of power to give good and sufficient deeds and conveyance. The power to sell would, by implication, include the power to convey by deed all the estate which he could authorize' the executors to sell. This is not necessarily inconsistent with the existence of the incumbrance of the dower interest of the widow, and, therefore, the allowance of her •claim of dower in the real property will not necessarily defeat any of its provisions. ( Wood v. Wood, 5 Paige, 896; Lewis v. Smith, 9 N. Y. 502, 510; Matter of Accounting of Frazer, 92 id. 239, 249; Konvalinka v. Schlegel, supra.)

It would have been otherwise if the ¡power had been given to the executors to sell and convey free from incumbrances. Then the power would have clearly manifested an intent of the testator to ' ' deny to his widow ■ dower in the land if she elected to accept the provisions made for her by the will. The case would then have come within the rule applied in Vernon v. Vernon (53 N. Y. 351).

The views above expressed lead to a.conclusion contrary to the .assumption of the learned counsel for the defendants, to the effect that the fee of the real estate was devised to the children of the testator free from incumbrance, and that such was the character of the power of sale given to the executors. It is not necessary to the right of the widow to take both the testamentary provision made in her behalf and dower that the testator so intended, but to require her to elect it must clearly and manifestly appear by implication ’ that he intended that the provision made in the will for the plaintiff should be in lieu of dower. In the view taken of the cases cited on-the defense, they do not seem to support the contention to that effect. In Savage v. Burnham (17 N. Y. 561) all the real estate of the testator was devised to the trustees with direction that his wife receive one-third part of the clear rents and profits, and that the other two-thirds should he deemed part of her personal estate and be disposed of in the manner provided. By this devise the trustees took title for the purpose's of the trusts expressed in the will.- It may be observed that by this means he had given the legal title to the trustees and one-third of the rents and profits to his wife during her life. It was held that the claim of dower was inconsistent with the provisions of the will and could not stand with them. It is unnecessary to refer specifically to the provisions of the will, which were treated as inconsistent with the claim of dower in the real property, further than to call attention to the reasons expressed by Judge Andrews in the Konvalimika case, who delivered the opinions of the court in that and the Yernon case. He says of .the Savage case, that “ the widow was put to her election, not because the vesting of the title in trustees was, per se, inconsistent with a claim for dower, but for the reason that the will made a disposition of the income, and contained other provisions which would be in part defeated if dower was insisted upon.” This was an adequate reason for the result in that case.

In Tobias v. Ketchum (32 N. Y. 319) the testator gave one-third of the income of all his real estate to his wife and directed the executors to carry out such provision. It was held that the executors as trustees took the legal title, and, upon the authority of the Savage case, that the provisions of the will were inconsistent with the claim of dower, and consequently the widow was put to her election. The reasons for such conclusion do not very clearly appear in the opinion there delivered, nor are they for its support entirely in harmony with other cases. In referring to it in the Konvalinka case, Judge Andrews said: There is language in the Tobias case “ which, disconnected with the context, may'give color to the contention of the appellant ” in that case. “ But it is the principle upon which adjudged cases proceed which is mainly to be looked to, because a correct principle is sometimes misapplied. * * * It has frequently been declared that powei’s of, or in trust for sale, are not inconsistent with the widow’s right of dower,” some of which cases are cited by the learned judge. Those remarks aré somewhat suggestive of Ms view of the Tobias ease, and nothing further need be added on this subject.

In Le Fevre v. Toole (84 N. Y. 95) the testator by his will gave several legacies and then gave all of his residuary estate, real and personal, to his wife. It was clear, on the face of the will, 'that there was a manifest implication of intent of the testator that the provision made for the wife was in lieu of dower.

In The Matter, etc., of Zahrt (94 N. Y. 605) it also clearly appeared on the face of the will that the intention of the testator, as expressed by the testamentary disposition of his property, could not be fully accomplished if the widow made and effectuated her claim for dower.

The view taken of the principle and the rule of its application deduced from the multitude of cases on the subject is that it does not appear by implication, on the face of the will, that the testator-intended that the plaintiff could not take the testamentary provisions made for her otherwise than in lieu of dower, for the reason that there is no necessary or clear repugnancy between such provisions and the continuance of her existing dower estate in the real property of the testator.

There is no occasion to refer to the oral evidence given on the trial in relation to the extent of the real and personal property left by the testator, as it has no essential bearing upon the question presented for consideration. • •

The judgment should be reversed and á new trial granted, costs to abide the final award of costs.

All concurred.

. Judgment reversed and new trial granted, costs to abide the final award of costs.  