
    Alletta A. Akin, App’lt, v. Sarah A. Kellogg et al., Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May, 1888.)
    
    1. Dower—Eight of widow to elect between dower and testamentary provision in lieu of—1 E. S., 742, § 14—Evidence of fraud—Competency of.
    The plaintiff brings this action to recover dower in certain lands formerly owned by her husband, since deceased, and for that purpose to be relieved of her failure to renounce within the statutory time the provisions made for her by his will in lieu of dower. By IB. S., 742, § 14, a widow is entitled to one year after the death of her husband within which to make her election, and unless within that time she shall have entered upon the lands to be assigned to her as dower or commenced proceedings for the recovery or assignment thereof, she shall be deemed to have accepted the provisions of the will in lieu of dower. In support of the action it was attempted to be proved that the executor of the will had falsely represented to her that the share secured her by the will was of greater value than her dower right. Held, that no representations made by the executor after the lapse of a year from the death of testator were material, as they could not affect the plaintiff’s election.
    2. Same—Fraud—What necessary to constitute.
    
      Held, that to support the charge of fraud on the part of the executor it was necessary to show that he knew the statements regarding the relative value of the tesl amentary provision and the dower right to be untrue, and that mere statements of opinion by him could not be regarded as false representations.
    3. Same—Eight of election—What will not remove statutory limitation regarding.
    
      Held, that as against the grantee of the testator whatever might be the case as against an heir or devisee, the widow was not entitled to dower because the testamentary provision, though valid, proved valueless
    
      Appeal by plaintiff from a judgment rendered at circuit upon trial before the court and a jury in favor of the defendant and against the plaintiff, dismissing the complaint upon the merits and for the sum of $268.99 costs and disbursements.
    
      Matthew Hale, for appl’t; L. Laflin Kellogg, for resp’t.
   Learned, P. J.

The plaintiff, the widow of Benjamin Akin, deceased, brings this action to recover dower in certain land formerly belonging to him, and for that purpose to be relieved of her failure to renounce, within the statuary time, the provisions for her benefit in his will. She claims to be thus relieved on the ground of alleged fraudulent representations made to her by Asa B. Kellogg, executor of Benjamin Akin, and husband of Sarah B., to whom, prior to his death, Akin had conveyed this land by a deed, in which the plaintiff did not join. Akin died October 10,1881. By his will he gave to plaintiff in lieu of dower one-third of his personal property, and as cestui qui trust a life estate in one-third of his real property. The farm in Greenbush, now in question, Akin had conveyed in May, 1877, to Sarah B. Kellogg, his daughter. But the deed was not put on record until four days after his death. At the time of his death he owned a house in New York, which had at one time rented for $4,000, and, about the time of his death, for $3,000, and also four stores in Albany. The inventory of his personal estate was about $35,000. On a final accounting of the executor, however, which included the avails of the New York house and the Albany stores, there was only enough property to pay about 77-100 on the debts of the deceased, including a debt to the plaintiff. This accounting was had before the surrogate, May, 1885, and the final decision therein in the court of appeals was in January, 1887. The plaintiff, therefore, could receive nothing under the provisions of the will. It would seem that a large claim owing to the deceased proved worthless. Apparently, too, the real estate was not as valuable as it had been thought to be. The plaintiff testified that she did not know of the deed from the deceased and Sarah B. Kellogg until the commencement of the proceeding before the surrogate. The plaintiff, after Akin’s death, remained on the farm (which was the homestead) until after the holidays, at the request of Mr. Kellogg. She was there also in the spring of 1883. When, in the spring of 1883, she went to Greenbush, she stayed at the Teller house. Mr. and Mrs. Kellogg went up to the farm in Greenbush, as they had always done.

The complaint alleges that Asa H. Kellogg represented to the plaintiff that it would be more advantageous for her to accept the provisions of the will, than to take dower, and that, ignorant of the true situation and relying on these representations, she neglected to renounce the testamentary provisions within the year.

It is very evident then that, on this question of fraud, no statements can be material except such as were made during the year after Akin’s death. Any statement made subsequently, however false, could not have induced her not to renounce the testamentary provisions within the year.

Certain statements then said to have been made at the Teller House, in 1883, cannot be material, as the time for election had then expired.

The plaintiff testifies that, the day after Akin’s death, Kellogg read the will to her and remarked: “ liou receive much more than if you received your dower.” Again he testifies that, shortly after the funeral, Kellogg said: “Money enough for us all; four months here and eight months in the city and we can live like fighting cocks.”

To support the charge of falsehood and fraud it would be necessary to show that Kellogg knew these statements to be untrue, although Kellogg knew that Akin had conveyed the farm, yet it does not appear from that fact or from the evidence that he did not believe that the provisions of the will were better than dower. As to the real estate (other than the farm), the provisions of the will are substantially the same as dower. The question then, whether Kellogg’s statement wgs correct would depend on this, whether one-third of the personal property was worth more than dower in the farm. The dower would be only for her life. One-third of the personal went to her absolutely.

It appears by the accounting that there was a decrease of about $34,000 on the inventory, due principally to the insolvency of a debtor to the estate. This shows that Kellogg might have believed that one-third of the personal was better than dower in the farm; while the result show ed that he was mistaken.

Furthermore the statement made by Kellogg was but an expression of opinion. He made no false statement of facts. He only gave an opinion, the correctness of which was necessarily dependent upon many contingencies. The opinion too was given before any investigation could have been made as to the conditions of the estate. The cases in which a statement of opinion can be considered a fraudulent representation are few, and generally depend on some peculiar circumstances. It is said, however, that the conveyance of the farm was concealed. On the contrary the deed was put on record several days after Akin’s death, and thus public notice was given.

The letter of September 20, 1882, to the plaintiff speaks of the farm as “a separate account, in which he only acts, with a power of attorney.” Thus there was a statement within the year that the farm was not a part of the estate, which the executor was maúaging. We do not think that the plaintiff showed fraud on the part of Kellogg.

It is urged, however, on her behalf, that, even if there were no fraud, yet she made the election in ignorance of the facts, and therefore should be relieved. It appears by her testimony that she had talked with the deceased about his property. She knew of the New York and Albany real estate. She knew of a claim against Isaac W. Akin, and against Schuyler. She also knew that the deceased owed her $5,000, and owed Mrs. Crapo $6,000. She probably did not know that the executor would be unable to collect the Isaac W. Akin debt. And it does not appear what was the pecuniary condition of Isaac W. at the death of the deceased. Now it is evident that the object of giving to the widow a year within which to elect, is, that she may have time to examine as to the value of the testamentary provisions for her benefit. 1 R. S. M. P., 742, § 14. This provision was introduced by the Revised Statute, and it was said by the revisors that some mode should be presented for evincing the election, and some time within which it should be made. It is important to others interested in the estate that it should be definitely known what election the widow makes. She ought, therefore, to inform herself as to the estate, if she is ignorant. It would be unreasonable that she should repudiate her election on the ground of ignorance, when she had made no effort to become informed. We do not find, in this case, any evidence that, within the year, the plaintiff made any inquiry as to the property, or sought any information to enable her to make her election. The alleged remark of Kellogg, that he would receive $1,300 a year, was, we think, made after the year had expired. Even if not, it was only an expression of opinion. Had he desired, she could have found out as to the value of the real estate, encumbered as it was, and could have asked the executor about the personal property. In the case of Hindley v. Hindley (29 Hun, 318), it does not appear under what circumstances the paper was obtained; what opportunity the widow had for inquiry, or what inquiry she made. In Larrabee v. Van Alstyne (1 Johns., 367), cited in Hindley v. Hindley, the views of the judges varied. One said the bequest was not expressly in lieu of dower. Another, that collateral satisfaction could not be pleaded at law in bar of dower. Another, that the bequest had not been paid. And the decision was made long before the Revised Statutes.

The plaintiff further urges that, even if there was no fraud and even if she knew the condition of the estate and chose to accept the testamentary provisions, yet as these provisions have been of no pecuniary value she is remitted to her dower right. Where there has been no valid testamentary provisions, then the portion of the widow is just the same as if there had been no provision at all in the will. An invalid provision is no provision* But that is not the case. The provision was valid. It might prove valuable and it might not. She choose to take it with the chance of its proving valuable. That it proved valueless gives her no right to change her election. . If a contrary doctrine were to prevail then, should the testamentary provisions prove not valueless but less valuable than the dower, it would be necessary to relieve the widow pro tanto from the effect of her election. Statutes in some of the states have provided for the case of loss of testamentary provisions for the widow by insolvency of the estate by paramount title. We have no such statute. We cannot add to our statute a clause, that if the testamentary provisions should afterwards prove not to be as valuable as the dower, then the widow may make a new election. It is suggested that the deed to Sarah B., expresses a consideration only of one dollar. No proof is given as to the actual consideration. Sarah B. holds, not as heir or devisee, but as grantee. The purchase price may have gone into the personal estate of the deceased of which the will gave one-third to the plaintiff.

The deed has a covenant of warranty. Hence it is important to the grantee that the plaintiff should not be relieved from her election, after the estate of the covenantor has been shown to be insolvent and has been settled. For if the plaintiff should have dower out of this land, Sarah B. would have a right of action on the covenant. But meantime the estate of the testator has been settled and applied to other claims against him, largely to a claim of the plaintiff. Thus Sarah B. has been deprived of any practical redress on the covenant of warranty.

Even then if it should be thought that against an heir or devisee the widow might claim dower, when the testamentary provisions had proved valueless, even after the statutory limitation, certainly she ought not to have this privilege against the grantee of the testator.

The judgment should be affirmed, with costs.

Ingalls and Landon, JJ., concur.  