Parker v. Linden , 9 N.Y. St. Rep. 305 ( 1887 )

Van Brunt, P. J.:

The question involved in this appeal is whether the testator intended to convert his real estate into personalty by the provisions of his will.

It is urged that this construction cannot be placed upon the will because it is manifest that James Linden did not intend to convert the real estate into personalty for the benefit of Maria Linden. That he did not so intend is certainly manifest by the language of the will; and that he did not suppose that such would be the result arising from the provisions under the will that the real estate should be converted into personalty is equally apparent. But the question of the intention of the testator is whether he intended to convert his real estate into personalty. An examination of the will and a consideration of the circumstances under which the legatees were placed seems to show conclusively that such was the intention of the testator. It is true that in the fourth clause of the will the testator makes a devise of the rest, residue and remainder of his estate, both real and personal, to his two half-brothers and his half-sister, absolutely. But it is to be remembered that the testator knew that these half-brothers and half-sister, being aliens, British subjects, could not take real estate by devise. It was this knowledge which undoubtedly caused the insertion in the will of the sixth paragraph, whereby he directed that all his real estate should be sold at public auction under the direction of a referee appointed by an order of the Supreme Court, and that the proceeds of sale should be deposited in the Supreme Court and invested under the direction of said court in the same manner as moneys belonging to non-residents. It seems to be clear that the testator intended that his estate should be converted into personalty in order that his alien brothers and sister might take. He seems to have been aware of the fact that he could not devise to them the realty, and that they could not take the realty as such. Hence, for the purpose of obviating this difficulty he provided for a conversion of the real estate into personalty and a deposit of the money in court for the use and benefit of his brothers and sister. If all his brothers and sister had died, and thus the necessity for conversion of the real estate into personalty had ceased to exist, perhaps this direction would have fallen and the real estate would have descended as realty. But although the learned judge who tried the case at ihe Special Term has found that one brother and sister have died and their legacies have lapsed, there is still a survivor, and it is necessary that the power of sale contained in the will should be carried into effect, so that he may receive his one-third share in money, he not being so situated that he can take the same as realty. The conversion of the estate, therefore, into personalty as was contemplated by the testator is absolutely necessary to the carrying out of the provisions of the will; and there, therefore, was a conversion of the real estate into personalty immediately upon the death of the testator, as was intended by him, and such residue must be distributed as personalty.

It is claimed, however, that the widow cannot claim dower in the . real estate and also participate in the personalty, the proceeds of the real estate under the statute of distributions. The answer to this proposition seems to be that the widow would have been entitled to her dower in this real estate had the testator sold it in his lifetime and left the proceeds in his will as personalty. And if the testator could not deprive the widow of her dower in the real estate by a sale before his death, he could not deprive her of dower in the real estate by directing the conversion of such real estate into personalty after his death. In both cases the widow, so far as the testator died intestate as to his personal estate, would be entitled to her share of the personal estate, and she would also have been entitled to dower in the real estate out of the sale of which this personalty arose.

It would appear, therefore, that the judgment of the court below was correct, and should be affirmed with costs.

Beady and Daniels, J.J., concurred.

J udgment affirmed with costs.