
    Deborah Taylor Lee et al., Resp’ts, v. Charlemagne Tower, Jr., et al., Ex’rs, App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed March 3, 1891.)
    
    1. Wills—Trust—Equitable conversion.
    Testator, a resident of Pennsylvania, by hia will, after giving bis wife his household goods and the use of a house for life, gave the rest of his estate to trústees- in-a trust which would be void-under tlie-statute-of tbis state.against perpetuities, and directed that four-tenths of the income be paid to his wife, in lieu, of dower, which she elected- to take: Held, that the general term properly held: that from the provisions of the will and the surrounding circumstances it could-not-be said that testator intended that- his real estate should'in all-events be sold; and that -the-trust was void as to lands in tbis state, but that it erred- in bolding that the widow was entitled to dower id the real estate situated-in this state, as to which it was-adjudged'the testator died-intestate.
    2. Same. ■ ■ ■ ; ■ -
    The testator having, contrary to-hiáintention, died:intestate .astO' a portion of his property,, tbe statute,- not the court,, declares who-are interested in it. The widow might have been, but she elected otherwise, and thus reliéved'the rCal'estate-from the burden of'dower.
    Appeal from a judgment of' the-general.-term, off tbe,supremecourt of the fourth department,.rendered, upon a.controv-ersy without action..
    
      Earl B. Putnam, for app’ltsHenry- T.. Utley,, for, résp-ts.
    
      
       Modifying: and afflrming 34 N. Y. State Rep., 829.
    
   Parker, J.

This controversy was submitted without action pursuant to the provisions § cedure.

Charlemagne Tower, a resident of Pennsylvania, died leaving a last will and testament, which was admitted to probate at Philadelphia, May 21,1889, and subsequently duly recorded in the counties in this state wherein are situated the lands which occasion this contest.

The questions submitted were whether the provisions of the will, so far as they related to real estate situated in the state of New York, were valid, and if invalid, whether the widow of Charlemagne Tower has a dower interest therein.

The court adjudged that the attempted disposition of such real estate was invalid because in contravention of the statutory provision that the absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer period than during the continuance' of not more than two lives in being at the creation of the estate.

We agree with the conclusion reached by the learned general term, as well as the reasoning on which it was founded. It is deemed unnecessary, therefore, to refer to the provisions of the will, which fully appear in the opinion of the general term.

The court also held that the widow is entitled to dower in the real estate situated in this state as to which it was adjudged the testator died intestate. In that view we do not concur.

The testator, after providing for the payment of debts and funeral expenses, gives to his wife absolutely his household goods, horses and carriages; also the occupation and use of his residence in the city of Philadelphia during her natural life; and directs that the taxes, water rents and repairs thereon during her occupancy shall be paid out of the income of his estate. All the rest of his property he devises and bequeaths in trust, and directs, among other things, that four-tenths of the income thereof shall be paid to her during the term of her natural life. The will.further provides as follows: “The provisions herein made for the benefit of my dear wife I declare to be in lieu, substitution and satisfaction of her dower, thirds, and all. other in- ■ terest in my estate, real, personal and mixed.” And the widow has elected to accept the provisions of the will.

It may be observed that this is not an action brought to relieve the widow from the effect of her election on the ground that it was induced through mistake, she at the same time offering to surrender the benefits which the testator declared to be given in ' lieu of dower. It is not suggested .that the widow would now • prefer to take that which the law would allow her had she refused to accept the provisions of the will.

The position she assumes, and which has been sustained by the general term, is that the testator intended that she should have two-fifths 'of the income of the land in' question, and that as such intention has been frustrated by the statutes of this staté, .she is entitled to dower in such land and still retain the benefit of the provisions of the will giving to her certain property absolutely, with the use of other property during life, and two-fifths of the income of that which passed to the executors in trust, notwithstanding the declaration of the testator that if accepted it must be “in lieu, substitution and satisfaction of her dower and thirds and all other interests (not in the estate disposed of by the will) but in my estate, real, personal and mixed," including necessarily that of which the testator died intestate as well as testate.

When the widow accepted the provision made for her she, in legal effect, consented to all the terms and conditions annexed to it, and yielded every right inconsistent therewith. No one can be allowed to disappoint a will under which a benefit is accepted, but on • the contrary must concede full effect to the dispositions thereof. Chamberlain v. Chamberlain, 43 N. Y., 424-442. And when one is thus put to an election it matters not whether that which is taken turns out to be greater or less in value than that which is surrendered. Brown v. Knapp, 79 N. Y., 136-143.

We have then a bequest coupled with a condition and an acceptance thereof.

The condition in clear and comprehensive terms provides that the acceptance of the bequest by the legatee must be in lieu of dower. It makes no exception. It was evidently the intention of the testator that there should be none, and the court must so declare. But, it is said the testator intended that she should have two-fifths of the income of the real estate of which he died intestate. True, and that fact gives support to. that which seems obvious on a mere reading of the condition, that it was the intention of the testator that the widow should not have dower in these lands. He intended, and attempted, to provide that she should have two-fifths of the income. That attempt was unsuccessful because, in some respects, the provision was in hostility to the statute. Effect, therefore, cannot be given to the testator’s intention in that direction. But the frustration of his wishes as to the disposition of the income of his real estate, by the operation of the statute, does not permit the court to disappoint his expressed intentions in regard to dower. The miscarriage of his plans, therefore, cannot be partially remedied by an adjudication that she is entitled to dower in such lands, for the court is without power to so adjudicate. It can no more relieve the widow from a full operation of the intentions of the testator than it can from the effect of the statute. The duty of the court in the premises is to construe the will, not to make one. It cannot correct the testator’s mistakes nor piece out the equities according to the conscience of the court. The testator having, contrary to his intention, died intestate as to a portion of his property, the statute, not the court, declares who are interested in it. The widow might have been, but she elected otherwise, and thus relieved the real estate from the burden of dower. Chamberlain v. Chamberlain, 43 N. Y, 424; Matter of Benson, 96 id., 499; Vernon v. Vernon, 53 id., 351-362: Caulfield v. Sullivan, 85 id., 153; Hone v. Van Schaick, 7 Paige, 221-232.

The doctrine of estoppel cannot be invoked against the heirs, for there is nothing on which to found it. The. widow does not claim to have been misled into the making of an election by anything which they said or did. It is not even suggested that, had she been put to her election with knowledge of the invalidity of so much of the will as related to the New York real estate, she would have acted differently.

The judgment should be modified by striking out the following, “ subject, however, to the right of dower therein of the defendant Amelia Malvina Tower, widow of the said Charlemagne Tower, deceased, to be admeasured the same as if he had died intestate,” and as thus modified affirmed, with costs to both parties payable out of the estate.

All concur.  