
    Matter of the Estate of Henry Knabe, Deceased.
    
      (Surrogate's Court, New York County,
    
    
      February, 1916.)
    Dower—When widow entitled to testamentary provisions in addition to dower—Wills—Devise to trustees op real and personal property WITHOUT POWER TO SELL OR MORTGAGE.
    A widow is entitled to dower ip addition to testamentary provisions in her favor unless it is clear from the will that she should not have both.
    Where testator gave his real and personal property to trustees without power to sell or mortgage the realty, but directed them to pay the net profits of the estate to his widow during her life or until her remarriage and the will expressly provides that in the event of her remarriage her interest in testator’s estate shall be limited to dower, she is entitled .both to dower and the testamentary provisions for her benefit.
    Appeal from an order assessing .transfer tax.
    Amend & Amend (John E. Donnelly and Alfred J. Amend, of counsel), for executrix.
    Lafayette B. Gleason (Schuyler C. Carlton, Alexander Otis, with him on the brief, of counsel), for state comptroller.
   Fowler, S.—

The question presented by the appeal of the executrix is whether the widow of the decedent is entitled to dower in addition to the provisions contained in the will for her benefit.

The testator gave his real and personal property to trustees and directed them to pay the net rents and profits to his widow during her natqral life, or until such time as she remarried. He also provided: “ In case she remarries^ I hereby limit her to the dower right granted to her by law.”

The widow is entitled to dower in addition to the testamentary provisions for her benefit unless it is clear from the terms of the will that the testator did not intend that she should have both. It has been held that if a testator gives all his real estate to trustees, with power to make repairs and to sell or mortgage the real estate, the widow is not entitled to1 dower in addition to the testamentary provisions for her benefit. (Asche v. Asche 113 N. Y. 334 ; Matter of Gordon, 172 id. 25.) In this matter however, the -testator does not give his trustees the power to sel' or mortgage. The reference to “ dower right granted her tu law ” shows that he differentiated between the right of dowewhich the law gave to his widow and the right to the rents and profits of the remainder of the estate which he gave to her so long as she remained his widow. He was evidently aware that he could not deprive her of dower even- if she remarried, but he expressly provided that she should be deprived of the rents and profits of the remainder of his estate upon the happening of that event.' He could not give her dower by his will, neither could he deprive her of it; and his expressed intention of limiting her to dower in the event of her remarriage shows that until such remarriage he intended that she should have dower in addition to the other provisions contained in the will for her benefit. To hold that the widow is not entitled to dower in addition to the testamentary provisions for her benefit would necessitate her making an election, as provided in section 201 of the Real Estate Law. If she elected to take the testamentary provisions and afterwards remarried she would be deprived of all interest in the estate of -the testator, because he has provided that in the event of her remarriage she would be limited “ to the dower right granted to her by law,” and having elected to take the testamentary provisions she could not thereafter claim dower. But the testator expressly provides that in the event of her remarriage her interest in his estate will be limited to dower; consequently a construction of the will which would put her to an election, would result in nullifying the express terms' of the testator’s will.

As the appraiser failed to deduct the value of the widow’s dower from the taxable assets of decedent’s estate, the order fixing tax will be reversed and the appraiser’s report remitted to him for correction.

Order reversed.  