
    Mary Jane Gray, Individually and as Executrix and Trustee, etc., of William H. Gray, Deceased, Appellant, v. William H. Gray, Jr., as Executor and Trustee, etc., of William H. Gray, Deceased, and Others, Respondents.
    
      Will —election as to clower — sale of property devised in lieu of dower — additional provision for the widow —an intention to put the widow to her election must appear with certainty — a trust estate is not inconsistent with dower m the subject thereof— bequest by implication not presumed.
    
    An action was brought lo obtain a judicial construction of the will of William II. Gray, the third clause of -which was as follows: “I give and devise to my beloved wile, Mary Jane Gray, in lieu of dower and thirds, and all right and interest in my estate (and in addition to the other and further provisions for her hereinafter made), the house and lot of land in -which we now reside, and known hy the present street number 180 West Eleventh street in the city of New York, to her and her heirs absolutely forever by the same clause the testator ■ also devised his jewelry, h usehold furniture, hooks, pictures and ornaments to his wife, and directed that his executors should pay from his estate the mortgages upon the house devised to her.
    After making the will, the testator sold the West Eleventh street house, and moved into another house owned hy him on West Seventy-second street, in which he died.
    By tlie fifth clause of his will the testator devised all the rest and residue of his estate to his executors in trust, to receive the rents, income and profit thereof, and to apply one-sixth of them to the use of his wife during her life, and the remainder in other ways mentioned in his will.
    
      Held, that it was the intention of the testator to give his wife, in lieu of dower, only tlie house in West Eleventh street, and that the expression “ and in addition to the other and further provisions for her hereinafter made ” must he disregarded in construing this clause;
    That it was not the intention of fl'« 1 estator that all the provisions in his will intended for her benefit were to bo in lieu of dower;
    That as tlie sale of the house in West Eleventh street operated as a revocation of tlie devise, the widow could not thereafter he compelled to elect between the specific devise and her right of dower;
    That the widow was entitled to dower in all the real estate, in addition to the provision made for her hy tlie fifth clause of the will under which she was to • receive one-sixtli of the rents, income and profit during her life;
    That the right of dower was favored and was never excluded hy a provision for a wife except hy express words or by necessary implication;
    That a widow could not he put to an election between a testamentary provision and her dower, unless it was clear to a demonstration that the testator intended that she should elect;
    
      That the creation by the will oi' a trust estate was not inconsistent with a right of dower in the wife in the subject of the trust;
    That the fact that the West Eleventh street house was devised in lieu of dower and thirds, and had been sold, did not create a bequest by implication to the widow of one-third of the personal property in addition to the bequest of one-sixth of tlie income given by the will;
    That in order to uphold a devise by implication the inference from the will of the testator’s intention to give it must he such as to leave no hesitation in the-mind. of the court and permit of no other inference;
    That there was nothing in the will from which it could he inferred that it was the intention of the testator to substitute the house in West Seventy-second street for the house in West Eleventh street as a provision for the widow in lieu of dower.
    Appeal by the plaintiff, Mary Jane Gray, individually and as executrix and trustee, etc., of William H. Gray, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the comity of New York on the 10th day of February, 1896, upon the decision of the court rendered after a trial at the New York Special Term.
    
      Moses Weinman, Samuel Untermyer and Louis Marshall for the appellant.
    
      Abraham L. Jacobs, Samuel F. Jacobs, H. Armitage Matthews and J. H. Mahan, for various respondents.
    
      Frank J. McBarron, Ralph Oakley and Walter D. Burke, for various infants.
    
      John M. Lathrop, for defendants Maria T. Gray and Isabella W. Williams.
   Rumsey, J.:

The plaintiff is the widow of William II. Gray, and one of his executors and a legatee under his will. The defendants are the children and grandchildren and brothers and sisters of the testator, and William H. Gray, Jr., is also an executor. The testator made bis will on the 15th day of July, 1890, and be died on the 18th of April, 1893. From the date of his wall to his death there was no change in the value of his property, except the natural increase in the value of the real estate. At the time of his death he was the owner of real property worth about $512,000, which was mortgaged ,to the amount of $302,000. His personal property was valued at about $70,000, and his debts were $60,000, in addition to the amount of the mortgages. The widow, as one of his executors, brings this action for a construction of his will, and the questions presented arise upon two clauses of the will, which will be referred to as may be necessary.

The first question arises upon the third clause of the will, which is as follows : “I give and devise to my beloved wife, Mary Jane Gray, in lieu of dower and thirds, and all right and interest in my estate (and in addition to the other and further provisions for her hereinafter made), the house and lot of land in which we now reside, and known by the present street number 130 West Eleventh street in the city of New York, to her and her heirs absolutely forever.” By the same clause the testator also devised his jewelry, household furniture, books, pictures and ornaments to his wife, and directed that the executors should pay out ox his estate the mortgages upon the house devised to her, saying: “ My intention and will being that she shall have, own, possess and enjoy the said property free, clear and discharged of all lien, mortgage and incumbrance.” After the making of the will the testator sold the house on West Eleventh street, mentioned in this clause, and moved into another house owned by him on West Seventy-second street, where he resided at the time of his death. The house in West Eleventh street, devised to his wife, was worth about $28,000.

By the fifth clause of his will the testator devised all the rest and residue of his estate to his executors in trust, to receive the rents, income and profits thereof, and to apply them, one-sixth to the use of his wife during her life, and the remainder in other ways more particularly mentioned in the said clause, but which are here not important to be considered.

The first question presented in the action and by the appeal is whether the testator intended to give his wife in lien of dower simply the house in West Eleventh street, or whether all the provisions in his will for her benefit were to be taken in lieu of her dower and thirds. It seems to xis that the terms of the third clause are quite dear upon that point. The exact words of that clause have already been quoted. The first thing to be noticed in construing them is that the words in parentheses devise nothing to the widow, nor do they add anything to the devise made in the third clause of the will. If they were entirely left out of that clause the widow would take no less than she does, they being there; nor being there, do they add anything to what is devised by it. If there were no other provisions in the will for her than those contained in this clause, she would still have nothing but the West Eleventh street house and the other personal property mentioned in that clause. They are put there simply for the purpose of calling attention to the fact that the testator had elsewhere made some other provision for his wife. It is not claimed that they can be made effectual to require her to elect with regard to other provisions, unless they are transposed from the place which they occupy in the clause so that it shall read: I give and devise to my beloved wife, in lieu of dower, the West Eleventh street house in addition to the other provisions made for her by this will.” But such a transposition of a phrase in a will is not allowable when it makes good sense in the place where it was put by the testator. (1 Redf. on Wills, 467; 1 Jarman on Wills, 499.) There is, therefore, no authority for making the transposition in that way unless it be for the purpose of carrying out some supposed intention of the testator. But there is nothing in the intention of the testator as indicated in that clause which would require any such transposition. His intention is equally well carried out if the words are construed according to their plain and obvious meaning, that the testator gives the West Eleventh street house to his wife in lieu of dower and thirds, and the reference in that clause to the fact that he had made further provision for her elsewhere hr the will does not affect the construction of the devise itself. The sale of the West Eleventh street house operated as a revocation of the devise (McNaughton v. McNaughton, 34 N. Y. 201; Burnham v. Comfort, 108 id. 535), and that being the effect of it, the widow could no longer elect between the specific devise and her right of dower.

The next question presented is, whether the widow is entitled to dower in' the real estate as well as the provision made for her by clause 5 of the will. That clause, as has been said, gives all the residue and remainder of the estate to the executors of the testator in trust, to receive the rents, income and profits, and to apply the same as more particularly directed therein, one-sixth of the income going to the wife for her life. In considering whether or not this provision is inconsistent with the right of the wife to have dower in the will, it must be remembered that the right of dower is favored. (Stimson v. Vroman, 99 N. Y. 74, 80.) It is never excluded by a provision for a wife, except by express words or by necessary implication. "Where there are no express words there must be upon the face of the will the demonstration of the intention of the testator that the widow shall not take both dower and the provision. The will furnishes this demonstration only -when it deary appears without ambiguity or doubt that to permit the widow to claim both dower and the provision would interfere with the other dispositions and disturb the scheme of the testator as manifested by his will. The intention of the testator to put the widow to an election cannot be inferred from the extent of the provision, or because she is a devisee under the will for life or in fee, or because it may seem to the court that to permit the widow to claim both the provision and dower would be unjust as a family arrangement, or even because it may be inferred or believed that if the intention of the testator had been drawn to the subject he would have expressly excluded the dower. (Konvalinka v. Schlegel, 104 N. Y. 125.) It will be noticed that the court, in the case just cited, refuses to put the widow to an election between a provision made for her in the will and her dower, unless it can be seen to a demonstration that the testator intended that she should elect. This is a very strict statement of the rule, but it was concurred in by all the judges c f the Court of Appeals. The creation of a trust estate by the will is not inconsistent with the wife’s right of dower. (Konvalinka v. Schlegel, supra.)

In this case it is quite clear that the testator intended that the wife should have a provision in lieu of her dower, and in addition the share of the income given to her by the fifth clause of the will. The testator expressly says that she shall have the West Eleventh street house in lieu of dower, and she shall be put to an election between one of those two things. In addition to that, as he says, she is to have the further provisions made by the will, so that it is quite clear that the testator had in his mind that, in addition to the provisions made for his wife in the fifth clause of the will, she should have either dower in his estate or the unincumbered title in fee to the West Eleventh street house as she should elect. He must have known that she had an election, and that, necessarily, if she declined to take the West Eleventh street house, she would receive the dower which the law gave her, and if he had intended that the one-sixth of the income given by clause 5 of the will should not go to her, if she elected to take her dower, it would seem as though he would have said so. But the devise to her in clause 5 is absolute. It is considerably less than she would have gotten had she insisted upon the income of the one-third of the real estate, which would have been given to her for dower.

In the case of Savage v. Burnham (17 N. Y. 561) it was held, under the peculiar provisions of the will, the devise to the wife was inconsistent with her right to have dower, and for that reason, if she took the provision made for her by the will, she must take it in lieu of dower. But in that case it was quite clear from an examination of the will that the testator never intended that his wife should have anything except the provisions therein made for her. He did not, as lie did here, give her an election between a portion of his estate and her right of dower, and add to it other provisions for her support.

In Tobias v. Ketchum (32 N. Y. 319) it was held that the provisions for the widow in the will were inconsistent with her right of dower, because the will gave her one-third of the net income of all the real estate after the payment of the taxes, assessments and interest due thereon, and it was thought by the court that, as the duty was put upon the trustee of collecting all the income of the estate and paying one-third of it to the widow, after deducting all charges from the estate, that provision was necessarily inconsistent with the right of the widow to have dower.

In Vernon v. Vernon (53 N. Y. 351) liberal provisions were made for the support of the wife, which were not declared to be in lieu of dower, but the testator gave authority to the executors to sell real estate which was not devised to her, free of all incumbrances, at a price fixed by him, and the court held that that provision was necessarily inconsistent with the right of the wife to incumber the estate which was to be sold, and, therefore, she was bound to elect between the provision made for her by the will and her right of dower.

All those cases are manifestly distinguishable from the one at bar, for in this case, as we have seen, the testator gives his wife dower or its equivalent, and then follows it with a devise of one-sixth of the income. Our conclusion is that the widow is entitled to dower in the estate, as well as to the provision made for her by the fifth clause of the will.

There is, as we think, no bequest by implication to her of one-third of the personal property in addition to the devise made in the will. The claim is that there is a legacy to her by implication of one-third of the personal property, growing out of the fact that the ~West Eleventh street house was given to her in lieu of dower and thirds,” and that that devise was revoked by the sale of that house. But there is no bequest by implication in this will. The rule is that to uphold a legacy by implication, the inference from the will, of the testator's intention to give the legacy, must be such as to leave no hesitation in the mind of the court, and to permit of no other reasonable inference. (Bradhurst v. Field, 135 N. Y. 564.)

In the case of Vowers (113 N. Y. 569) the testator had given to his wife a certain provision which was to be accepted, as the will said, in lien of all her dower right and distributive share of his estate ; she to make her election within sixty days. All the remainder of his property he gave to a nephew; The widow rejected the provision made by the will, and insisted that she was entitled not only to the dower, but to the distributive share of the estate. The court sustained her contention upon the particular words of the will in that case. But in that case the testator made no other provision for the support of his wife than the particular one which was in question. If she did not accept that she had nothing, except what the law gave her, and the testator spoke of what the law gave her as “ her ” dower and “ her ” distributive share of the estate, thus clearly explaining what, in his judgment, were the two alternatives between which she had to elect. The decision of the court there was put very largely upon the ground that the thing to be selected in place of the pro vision, besides the dower, was “her” distributive share, construing that to mean the share which the law would give her if there had been no will, and upon that construction the court held that there was a legacy by implication. But that case was characterized, in Bradhurst v. Field (supra), as one which went quite far in upholding a legacy by implication. No such necessity is apparent in this case to work out the scheme of the testator’s will and carry his intention into effect. Indeed, it is quite clear that any such construction would have a far different effect than was intended by .the testator. It was quite clearly his idea that all the property, except what he had set apart as his wife’s dower, should go into the fund established by the fifth clause of his will, and that that fund should be divided as he directed therein. To diminish that fund by taking away one-third of the personal estate would not he in accordance with his intention, and is not required by necessary implication from any of the provisions of the will.

We can find nothing in the will from which it can be inferred that it was the intention of the testator to substitute the West •Seventy-second street house for the West Eleventh street house, which was devised to his wife.

Our conclusion is, that the first two questions of the complaint must he answered in the negative; that in answer to the third question it must be said that the wife is entitled to dower, but that she is entitled to none of the personal property except such as is given to her by the third clause of the will. The fourth question must he answered in the negative and the fifth question must be answered in the affirmative, and the judgment must be modified as required by these answers, with costs to the plaintiff and to the defendant executor and to the several guardians ad litem to be paid out of the estate.

Van Brunt, P. J., Barrett, O’Brien and Ingraham, JJ., concurred.

Judgment modified as directed in opinion, with costs to the plaintiff and to the defendant executor and to the several guardians ad litem to be paid out of the estate.  