
    Alfred S. Brown, Respondent, v. Lee Anna Brown and Others, Defendants, Impleaded with Herbert J. Carrington and Others, Respondents, and Augusta A. Brown, Appellant.
    First Department,
    January 25, 1907.
    Husband and wife — ante-nuptial agreement — when agreement not in lieu of dower.
    A pecuniary provision made for the benefit of an intended wife must be made in lieu of dower to bar her right thereto. Dower is favored by the law, and if there be a reasonable doubt as to whether an ante-nuptial agreement was made in lieu of dower, the widow will take both.
    When a man ninety years of age, in consideration of a contract of marriage made by a woman much younger than himself, agrees in writing that his executors shall pay a certain sum to his intended wife if he die within three years and a larger sum if he die within five years, and that after his death she shall be paid a monthly sum for her support until the division of his estate when ‘'she is to be paid in full as her widow’s dower in full,” and such contract is*foD lowed by a ceremonial marriage, the ante-nuptial agreement should not be construed to have been made in lieu of dower and the widow is entitled both to the dower and the provisions of the contract.
    (Per Ingraham,. J.): The only effect of the acceptance of the provisions of the ante-nuptial agreement by the widow was to postpone her right to dower until final division of the estate, and when the will is invalid for unlawfully suspending power of alienation, the estate becomes at once divisible, the widow’s right to-the annuity ceases and she is entitled to her dower.
    Patterson, P. J., and Houghton, J., dissented, with opinion.
    Appeal by the defendant, Augusta A. Brown, from an interlocutory judgment of the Supreme Court in favor of the plaintiff and certain of the defendants) entered in the office of the clerk of the county of New York on the 21st day of June, 1905, upon the decision of the court, rendered after a trial at the New York Special Term, in a partition suit, denying to said defendant dower or a share in the personal property of her deceased husband.
    . Louis J. Altlcrug, for the appellant.
    
      Joseph Fettretoh, for the respondents.
   Lambert, J.:

Paul S. Brown died on the 30th day of August, 1901, intestate as to the property involved in this action. On the 10th day of July 1901, Mr. Brown entered into an agreement with the defendant - Augusta A. Brown, which was followed by a. ceremonial marriage on the twenty-fourth day of August in the same year. He was at that time about ninety years of age, in the full possession of his faculties, so far as appears from the evidence in this case, and on the date of the agreement he wrote out and the parties subscribed die following contract':

“ This agreement made and entered' into by and between Paul S. Brown of the town of Bloomfield, State of Hew Jersey, party of the first part, and Augusta Andree, of the City of Hew York, * "x" *" party of the second part, Witnesseth: That foirand in consideration of this agreement and certain sums of money to be paid to her by the said party of the first part , and other valuable considerations, the said party of the second part promises to marry the said party of the first part some day before July 15, 1901, and by mutual agreement 'become legal husband and wife. Certified by their signatures and seals and by two disinterested witnesses to same.

“ The said party of the second part; in case of the death of said Paul S. Brown within- three years the said Augusta Andree shall be paid by the executors of the last will and testament of said. Paul S. Brown, three thousand Swedish crowns, but if he lives five years from the date of this agreement, she, the said'Augusta Andree, * * * shall- be paid five thousand Swedish crowns, or its equivalent in American money, and after his death she is to be paid forty dollars^ per month for her support until the division of tire estate, when she is to be paid in full as her ¡widow’s dower in full.”

What is the reasonable construction of this language used by Paul S. Brown in defining the rights of this woman, who at the age of thirty-seven years was about to enter into the marriage relation with him ? Clearly Mr. Brown used language with a fair degree of intelligence in defining his purpose. He evidently understood that at his age he had not many years to live, while his wife could reasonably expect to survive him for a number of years. Augusta A. Brown was comparatively young; she was a trained nurse and she was relinquishing her occupation for the purpose of caring for this old man, and she evidently demanded something more than the rights of a wife in the property. It was agreed, therefore, that if Mr. Brown died within a period of three years the said defendant to be paid 3,000 Swedish crowns, equivalent to $810. But if he lived for five years, she was to be paid 5,000 Swedish crowns, “ and after his death she is to be paid forty dollars per month for her support until the division of the estate, when she is to be paid- in full as her widow’s dower, in full.” That is, contingent upon the length of life of Mr. Brown, his executors were to pay her 3,000 or 5,000 Swedish crowns out of his property, the same as they would be called upon to pay or discharge any other indebtedness. In addition to this they were to pay to the said defendant a fixed sum per month for her support during the time that the estate was held by the executors, and then she is to be paid in full as her widow’s dower in full.” There is' no suggestion here that these several payments, or any of them, are in lieu of dower, nor is there any inconsistency between such payments and her right of dower. The parties understood that the widow would have dower - rights; they contracted with reference to such rights, and they did not,, in express language, nor by necessary implication, exclude her from such rights. On the contrary, the contract provided for certain definite payments under agreed conditions, and then, upon the division of the estate she was to be paid in full as her widow’s'dower in full.”

The statute provides- (Real Prop. Law [Laws of 1896, chap. 547J, § 178) that “ any pecuniary provision, made for the benefit of an intended wife and in lieu of dower, if assented to by her * * *, bars her right or claim of dower in all the lands of her husband,” but it must be made in lieu of dower; the parties have a right to provide for more than the dower, 'and this, it seems to ns, has been done in the contract under consideration. At least there is no language which compels the conclusion that it was the intention of the parties that the said defendant should be entitled to less than she would have been entitled to without ’ the contract. Dower is favored by the law, and while the right to both dower and the benefit of a testamentary provision must yield to the intent of the parties where such intent is stated or clearly implied, if there is reasonable doubt, the widow takes both (Matter of Gorden, 172 N. Y. 25, 28), and it cannot be said, in the case- now before, us, that there is any lack of reasonable doubt. Hr. Brown drew this contract;■ the language was of "his own choosing, and it is quite as consistent with- reason, in view of the circumstances, that he intended 'that the said defendant should have more than her dower rights, as it is to hold that there was an intention to limit her to the comparatively small amount which she would realize in the event of Mr. Brown’s death within a period of three to five years. The court in Matter of Gorden (supra) quote the rule that “ where there is ño direct expression of intention that the pro- • vision" shall be in lien of dower, the question always is whether the will contains, any provision inconsistent-With the- assertion of a right to demand a ..third of the lands, to be set out by metes and bounds,” and if this rule is applied to the contract before us, and its language is given its most obvious meaning, the defendant was entitled to succeed in her contention.

The learned court below.finds it necessary to read into the language used by Mr. Brown a word of extensive meaning in order to reach "the result which we are called upon to review, and. we do not think the case is one where we are justified in supplying language. The words are not merely those of Mr."Brown, acting as a testator ; they are the words of a mutual contract — words selected by Mr. Brown—ánd "if he failed to use language Which will deprive the defendant of her dower rights, his heirs cannot be aided by the court. Under the statute the defendant is entitled to “ be endowed of the third part of all the lands whereof her husband was seized of an "estate of inheritance, at any time during the' marriage.” (Real.Prop. Law, § 170.) This is the lawful right1 of this defendant unless the right has been taken from her by this contract, and we have no authority to add anything to the language which the contracting parties have used to" bring about such á result. She had a- right to refuse to. marry Mr. Brown and to accept merely the rights of his widow ; she had a right to stipulate for something more, and a fair construction of the language chosen by Mr. Brown to express the agreement with this defendant does not justify holding that it was intended that the rights of the defendant should be cut down, but rather enlarged. We find nothing to warrant holding that the specific payments provided for out of the estate of Mr. Brown were intended to be in' lieu of dower.

The judgment should be modified by providing that the widow shall be entitled to her dower right in the estate in addition to the provisions of the contract. Costs of this appeal to the defendant Augusta A. Brown. The order to be settled on notice.

McLaughlin, J., concurred; Patterson, P. J., and Houghton, J., dissented.

Ingraham, J. (concurring):

I concur with Mr. Justice Lambert. An analysis of the. ante-nuptial agreement shows that it is fairly .divided into two parts. The first part contains the mutual .promises of the parties to the •agreement, and the second part relates to the agreement on behalf of the proposed husband. The first part witnesseth “ that for and in consideration of this agreement and certain sums of money to be paid to her by the said party of the first part (proposed husband), and other valuable considerations, the said party of the second part (proposed wife) promises to marry the said party of the first part some day before July 15, 1901.”

Here is a distinct promise by the proposed wife to marry, and this promisé to marry is based upon the consideration of the money therein provided to be paid to her. This is the only promise that she makes in the agreement. Whatever rights she would have as a wife were preserved to her by the agreement, and certainly in any part of the agreement which contains her promise there is no relinquishment of any legal right to which she would be entitled upon her marriage.' How, the second part of the agreement makes provision for the sums of money which were to be paid to her, and which were a part of the consideration for making the promise of marriage. Under that agreement she is to be entitled to receive a certain sum of money upon the death of the husband. Subsequent to his death she is entitled to receive an annuity of forty dollars per month, to. continue during the time that the husband’s estate is undivided, “ when (at the time of the division of the estate) she is to be paid in full as her widow’s dower in full.” I do not think that this language can be construed into an agreement to relinquish dower, or into an agreement that the payment of these various sums of money is to be considered in lieu of dower. Certainly, if this provision was in a will which purported to make provision for the testator’s wife, it could not be held to be a provision in lieu of dower, an acceptance of which would estop her from claiming dower after the period during which she was entitled' to receive the annuity. Turning to-.the will of the testator, as it existed at the time this agreement was made, the meaning seems to become apparent. The testator had intended to tie up' .his estate for a period of twenty-six years, during which time the income from his property was paid to his children in fixed sums per month. Undoubtedly, the intent was to provide for this annuity to his widow in lieu of her right to receive during the period that his estate -was-undivided a third of the income of the real property.-. Under the ante-nuptial agreement she was to receive a.sum of money upon his death. She was then to receive a certain annuity during the-time that the estate remained undivided; but upon the division of the. estate the annuity was to cease, because at that time she would be entitled' to her dower in his real property. I think that the only effect of the acceptance of the provision made for the Widow by the ■ ante-nuptial agreement would be to postpone her right of dower Until the .final division of the estate. It having been adjudicated that this will was invalid as suspending the vesting of the testator’s real property during a period not allowed by the- statute, the estate became at once divisible, and the Widow’s, right to receive this annuity, ceased,, and she then became entitled to' her dower in the real property. • ■ .

I concur, therefore', in the modification of the judgment as-proposed by Mr. Justice Lambert.

Patterson, P. J. (dissenting):

I am in accord with the views expressed by the justice at Special Term respecting the construction to be given to the agreement entered into between the defendant, Augusta Andree (Brown) and Paul S. Brawn, prior to their marriage. Limiting the interpretation of that agreement to the subject of dower, and without'refer-\ ence to any question that might arise respecting an interest of the widow in the personal estate of her deceased husband., it seems to me that the agreement can only be construed as a relinquishment by ante-nuptial agreement of her right of dower in the real estate of her husband and the substitution of a money recompense for her relinquishment of that dower.

The agreement recites that for and in consideration thereof, and of certain sums of money to be paid to Augusta Andree by the party of the first part and other valuable considerations, she promised to marry the party of the first part, and it was agreed that if he died within three years, she should be paid by the executors of his will the sum of 3,000 Swedish crowns; if he lived five years, she was to receive 5,000 Swedish crowns, or the equivalent in American money, and after his death to be paid forty dollars a month for' her support until the division of his estate, when she is to be paid in full as her widow's dower in full''

I think this provision specifically relates to dower as such, and that the amounts to be paid to her under the provisions of the ■agreement were in commutation of dower. The testator did make provision by his will for the forty dollars a month. By its terms that provision was to continue for about twenty-six years, and if the widow were to receive dower in addition to this provision for so long a time, the'whole scheme of the will would be subverted, as it was all to be virtually in lieu of dower. The fact that the Court of Appeals declared this provision of the will to be invalid does not affect the construction to be given to the agreement. As I understand it, it relates to dower, and was intended to relate to that subject, and was a complete acquiescence by the intended wife in the acceptance of a sum of money in lieu of dower.

I think, however, that some provision should be made in the judgment to the effect that it shall not be a bar to the right of Mrs. Brown to assert any claim she may have to share in the personal estate of her deceased husband; and while the action is in partition and the judgment merely declares that the 3,.000 Swedish crowns, or its equivalent, and the sum of forty dollars a month from the time of the death of her husband until the actual division of the estate shall, be paid her in full for thirds, dowei:, and right of dower to all or any other interest described in the complaint, yet it might be claimed that it was an adjudication that all her interest in the estate was disposed of by the decree.

With such a provision inserted in the judgment, I am of the opinion that it should be affirmed.

Houghton, J., concurred.

Judgment modified as directed in opinion, with costs of appeal to defendant appellant. Settle order on notice: 
      
       So in record.— [Rep.
     
      
      See Brown v. Quintard (177 N. Y. 75); Real Prop. Law (Laws of 1896, chap. 547) § 32— [Rep.
     