widow claim in New York

1936In Konvalinka v. Schlegel ( 104 N. Y. 125 ) it is stated: “ The intention of the testator to put the widow to an election cannot be inferred from the extent of the provision, or because she is a devisee under the will for life or in fee, or because it may seem to the court that to permit the widow to claim both the provision and dower would be unjust as a family arrangement, or even because it may be inferred or believed, in view of all the circumstances, that if the attention of the testator had been drawn to the subject he would have expressly excluded dower.

1896(Konvalinka v. Schlegel, 104 N. Y. 125 .) It will be noticed that the court, in the case just cited, refuses to put the widow to an election between a provision made for her in the will and her dower, unless it can be seen to a demonstration that the testator intended that she should elect.

1936We repeat, the only sufficient and adequate demonstration which, in the absence of express words, will put the widow to her election, is a clear incompatibility, arising on the face of the will, between a claim of dower and a claim to the benefit given by the will.” Again, in Matter of Fitter ( 92 Misc. 706 ) the principle is very clearly elucidated: “It is held that the trust is not repugnant to the assertion of dower, unless it is apparent that the trust requires the possession and control by the trustee of the entire lands involved; and the courts have generally looked to see whether, among

1930We repeat, the only sufficient and adequate demonstration which, in the absence of express words will put the widow to her election, is a clear incompatibility, arising on the face of the will, between a claim of dower and acclaim to the benefit given by the will.” The most frequent type of case in which such “ clear incompatibility ” has been held to exist is referred to in Matter of Gorden ( 172 N. Y. 25, 32 ): “ While a mere power of sale, to be promptly exercised for the purpose of distribution, does not put the widow to her election, the vesting of title in trustees not only with power to

1901Matter of Grotrian, 30 Misc.

1901Matter of Grotrian, 30 Misc.

1943(Matter of Lake, 170 Misc. 840 ; Rogers v. Rogers, 174 Misc. 841 , affd. 262 App. Div. 798 .) Prior to the 1929 change in the Decedent Estate Law a widow could not claim inclusion in the term “ heir ” (Tillman v. Davis, 95 N. Y. 17, 24, 25 ).

1943(Matter of Lake, 170 Misc. 840 ; Rogers v. Rogers, 174 Misc. 841 , affd. 262 App. Div. 798 .) Prior to the 1929 change in the Decedent Estate Law a widow could not claim inclusion in the term “ heir ” (Tillman v. Davis, 95 N. Y. 17, 24, 25 ).

1943(Matter of Lake, 170 Misc. 840 ; Rogers v. Rogers, 174 Misc. 841 , affd. 262 App. Div. 798 .) Prior to the 1929 change in the Decedent Estate Law a widow could not claim inclusion in the term “ heir ” (Tillman v. Davis, 95 N. Y. 17, 24, 25 ).

1936We repeat, the only sufficient and adequate demonstration which, in the absence of express words, will put the widow to her election, is a clear incompatibility, arising on the face of the will, between a claim of dower and a claim to the benefit given by the will.” Again, in Matter of Fitter ( 92 Misc. 706 ) the principle is very clearly elucidated: “It is held that the trust is not repugnant to the assertion of dower, unless it is apparent that the trust requires the possession and control by the trustee of the entire lands involved; and the courts have generally looked to see whether, among

1930We repeat, the only sufficient and adequate demonstration which, in the absence of express words will put the widow to her election, is a clear incompatibility, arising on the face of the will, between a claim of dower and acclaim to the benefit given by the will.” The most frequent type of case in which such “ clear incompatibility ” has been held to exist is referred to in Matter of Gorden ( 172 N. Y. 25, 32 ): “ While a mere power of sale, to be promptly exercised for the purpose of distribution, does not put the widow to her election, the vesting of title in trustees not only with power to

1928Patrick's Cathedral, 245 N. Y. 201 .) As Anton Sienko died from causes unrelated to the accident sustained by him, the widow had no claim for a death benefit.

1902The will furnishes this demonstration only when it clearly appears without ambiguity or doubt that to permit the widow to claim both dower and the provision would interfere with the other dispositions and disturb the scheme of the testator, as manifested by his will. * * * We repeat, the only sufficient and adequate demonstration which, in the absence of express words, will put the widow to her election, is a clear in com-:' patibility, arising on the face of the will, between a claim of dower and a claim to the benefit given by the will.” This is simply a restatement of the old rule in somewh

1891Matter of Daggett, supra.

1888In Larrabee v. Van Alstyne, 1 Johns. 307 , cited in Hindley v. Hindley , the views of the judges varied.

1884It is undoubtedly true, as decided in the case of Lewis v. Smith (supra), that a simple devise of all the testator’s real estate *610 to his wife during life, would not be inconsistent with her claim of dower, and would not put her to an election.

1881Pr., 400 ; Edsall v. Waterbury, 2 Redf., 48 ).

1881And to hold that the provision in her behalf is valid, and the subsequent provisions for his children and grandchildren, as life tenants and remainder-men, are void, would result in the intestacy of the estate so attempted to be disposed of, and thereby materially change the scheme, of the will, by letting in the widow to claim a third of the personal estate remaining after the payment of debts and valid legacies (see Sink v. Sink, 53 How.

1874R., 290) and Collins v. Torry (7 id., 278 ), said: "Both these cases and all cases at law agree in the qualification that, as against the mortgagee, the husband is not so seized that the widow can claim dower.

1874And they introduce" (he said), "I think, even a further qualification, that if the mortgagee have entered for condition broken or foreclosed, the seizin is destroyed." And further on he said, "indeed, all seizin in the mortgagor was thus utterly subverted." This case was decided in January, 1838; in less than two years thereafter, and in July, 1839, a case *Page 619 peculiar in its facts was brought before the Supreme Court, Edwards v. The Farmers' Fire Insurance and Loan Co . ( 21 Wend., 466 ), and importing more than ordinary interest from the fact that the chancellor had, in a similar case,

1850This precise question was decided in the supreme court of Massachusetts, in Popkin v. Bumstead, ( 8 Mass. Rep. 491 .) That was a case of payment and satisfaction of the mortgage by the person holding the equitable title from the husband, and the court held that the payment of the mortgage, under such circumstances, gave the widow no claim to dower.