
    Orange County.
    Hon. ROSWELL C. COLEMAN, Surrogate.
    February, 1889.
    Matter of Harris.
    
      In the matter of the appraisement of the estate of Carrie W. Harris, deceased.
    
    A provision in a will by a married woman in favor of her husband will not, unless so declared in express terms, be held to be in lieu of the articles of personal property which under Laws 1887, ch. 630, § 13, the husband is entitled to have set apart by appraisers out of the estate of his deceased wife.
    Motion on behalf of the husband to compel the appraisers to set apart for him certain personal property, pursuant to Laws 1887, ch. 630.
    The facts appear in the opinion.
    M. J. Donovan, for Francis Harris, husband.
    
    N. Van Amee, for Isaac R. Clements and Selah R. Corwin, executors.
   The Surrogate.

The testatrix by her will gave to her sister Addie N. Robins all her household goods and furniture. Her only provision in the will in favor of her husband is the following:

“ I give and devise to my husband Francis Harris the use for and during the term of his natural life, of the said farm owned by me.”

Mrs. Harris died December 15, 1888, leaving her husband surviving her, but no children.

At the taking of the inventory, the husband requested the executor to have the appraiser set apart to him the property which would have been set apart to a widow in the case of a man dying leaving a widow. This the executors refused to do. This motion is made to compel the executors and appraisers so to do.

By chap. 630 of the Laws of 1887 it is provided: Section 13. “ When a married woman or widow shall die, leaving her surviving a husband or a minor child or children, the same articles and personal property shall be set apart by the appraisers for the benefit of such husband or minor child or children as is now provided by law in the case of a man dying and leaving a widow or minor children.”

I find no adjudication directly upon this statute, but it would seem that the same rules of law are applicable as have been applied to the provisions in favor of widows. The provision for the husband in this will is not made, in terms, in lieu of any statutory rights he may have and “ it is an established principle that a provision in a will of a husband in favor of the wife will never be construed by implication to be in lieu of dower or any other interest in his estate given by law.” Sheldon v. Bliss, 8 N. Y. 31, 35.

So too it has been held that this class of property forms no part of the estate as a subject of bequest. The testator could no more divest his widow of it by will than he could her dower in real estate. Vedder v. Saxton, 46 Barb. 188; Sheldon v. Bliss, supra.

By the statutes making provision for widows and minors the language in each case is “ where a man leaving a family shall die.” In such case it is therefore necessary to determine in every case whether there was a family. It has been held that a widow and a female relative living with the deceased at the time of his death constituted a family. By the statute of 1887 however the words leaving a family ” are not used. It is therefore unnecessary to ascertain whether the husband alone could constitute a family.

I am of opinion therefore that there is nothing in the will which deprives the husband of the rights given him by the statute of 1887, and that the appraisers should set apart for him the property mentioned in chap. 470 of the Laws of 1874 and by sec. 2 of chap. 157 of the Laws of 1842.  