
    Elizabeth Horstmann, Respondent, v. Amelia Flege and Luhr Horstmann, Jr., Appellants, Impleaded with Others.
    
      Bower—devises of realty subject to the payment of annuities — when the widow is not put to her election between an annuity and her dower — when she may sue for Tier annuity irrespective of income or profits.
    
    Where a testator devises two different pieces of realty in fee, subject to the payment of an annuity in each case charged thereon to his widow, the widow will not be put to an election between the annuities and her dower, unless it appears upon the face of the will that to uphold both the dower and the annuities would disturb other provisions of the manifest scheme of the will. Where the annuities are not some specific part of the income or profits of the land devised, and are not made contingent upon the receipt of rents or profits therefrom, the widow may maintain an action against the devisees to enforce the payment of the annuities, irrespective of income or of profits.
    Appeal by the defendants, Amelia Flege and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 19th day of November, 1900, upon the verdict of a jury’rendered by direction of the court, and also from an Order entered in ■said clerk’s office on the 27th day of November, 1900, denying said defendants’ motion for a new trial made upon the minutes.
    
      Edward L. Frost, for the appellants.
    
      Edward T. Horwill, for the respondent.
   ■Jenks, J.:

The testator did not write apt words that the annuities were to be in lieu of dower. Before the widow can be put to election it must be demonstrated from the face of the will that to uphold both •dower and annuities is to disturb other provisions of the manifest scheme. (Konvalinka v. Schlegel, 104 N. Y. 125, 129.) The .gift of the annuity is not sufficient to put her to her election. (Story Eq. Juris. § 1088; 2 Scrib. Dower [2d ed.], 461, 462; Adsit v. Adsit, 2 Johns. Ch. 448 ; Fuller v. Yates, 8 Paige, 325 ; Konvalinka v. Schlegel, supra.) The question, then, is, whether the provision for the annuity disturbs or defeats the scheme of the will. There are no trusts created, but two different pieces of realty are devised in fee, and each is made subject to the payment of •an annuity to the widow. These annuities are not sbme specific part of the income or profits of the land, nor are they made contingent upon the receipt of rents or profits therefrom. I think that the reasoning in Gifford v. Rising (51 Hun, 1) is in point, and in that case the court, per Haight, J., held that, irrespective ■of income or of profits, an action would lie to enforce the payment of the annuity. The cases cited by the learned counsel for the appellants maybe distinguished. The quotation made by him as from Adsit v. Adsit (supra),as an annuitant, the widow must be out of possession of the whole land, and, as dowress, she must be in possession of part,” is not from the opinion of Chancellor Kent in that case, but is the chancellor’s summary of the reasons that impelled Lord Camden, C., to make the decision in Villareal v. Galway (Amb. 682). I may state passim that examination of the case last named shows that Lord Camden held that Arnold v. Kempstead (Amb. 466) controlled. But in Arnold v. Kempstead {supra) the charge was upon the rents and profits of the estate. The opinion -in Adsit v. Adsit (supra) contains a discussion of many decisions, and the chancellor, after reviewing the earlier eases, among them Villareal v.Galway (supra) and Arnold v. Kempstead (supra), and pointing out that the chancellors had not been in accord, says: “ In the subsequent cases it would appear, however, that even this doctrine' of holding the wife barred by an' annuity charged upon the real estate is questioned and shaken, and finally overruled.” (P. 456.) As to the other authorities cited; in Savage v. Burnham (17 N. Y. 561) the testator left all of his estate to trustees, and the widow was to receive one-third of all the rents and profits thereof; in Tobias v. Ketchum (32 N. Y. 319) the widow was to receive one-third of the net income of all the estate, and in Asche v. Asche (113 N. Y. 232) there was a trust in the executors and a direction to pay a part of the income to the wdow.

I am of opinion that the widow is entitled to her dower and to the annuities.

The testimony offered by the defendant Mrs. Flege, and by her husband, to show that there was an assignment of dower out of the premises devised to her and an acceptance and possession thereunder, is contradicted by the plaintiff, and is, in any event, entirely too vague and too indefinite to establish the fact. In Aikman v. Harsell (98 N. Y. 186) the court say: “ To constitute an assignment or admeasurement of dower by virtue of any agreement or any specific act of the party, it should be' clearly manifest that such was the intention.” There was no admeasurement. There is no proof of any agreement made by the plaintiff, or of any act done by her, that is sufficient to warrant the inference that she intended to relinquish her dower rights.

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  