In re Frost , 1 N.Y.S. 340 ( 1888 )

The Surrogate.

The decedent died leaving him surviving his widow, Mary E. Frost, and four daughters, children of a prior marriage. There were no children horn to the testator by his second wife and since his death she has married again. Among the provisions of the will in her behalf, in lieu of dower, is a bequest of certain leasehold property described as No. 64 west forty-eighth street. She rejected the provisions of the will in her behalf, and elected to take her dower in the real estate.

The leasehold property above referred to has been sold by the executor, and upon the final settlement of his account the widow now claims that it did not fall into and become a part of the residuary estate, but that as to it, the testator died intestate and that it should be distributed as intestate property and that she should receive one third of the proceeds of the sale thereof.

The language of the residuary clause is as follows:

“ All the rest, residue and remainder of my estate, both real and personal of every nature and description, I order and direct my executors and executrix hereinafter named.....to sell at public or private sale, and upon such terms as they may deem best.”

I have no doubt but that the intention of the testator, if his widow elected to take her dower instead of the bequest in lieu thereof, was that the leasehold property should become a part of his residuary estate.

The case of Kerr v. Dougherty (79 N. Y., 327), cited by the contestant, is clearly distinguishable from the case at bar. There it was held that the general rule that in a will of personal property the general residuary clause covers whatever is not otherwise legally disposed of, does not apply where the bequest is of a residue of a residue, and the first disposition fails.

The case of Hatch v. Bassett (52 N. Y., 359), cited by contestant, has no bearing. In that case there was no absolute devise of the residuum to any one.

In the case of Stephenson v. Orphan Asylum (27 Hun, 380), cited by contestant, it was held that certain legacies having failed because not valid, a fund remains not embraced nor intended to be embraced in the residuary clause of the testator’s will and therefore it must pass to the next of kin under the residuary clause. This decision is put entirely upon the point of the intention of the testator.

In the case at bar, his intent clearly was to give this leasehold property to his wife in lieu of dower, or, if she elected to take her dower, she was to be cut off from further benefactions under the will.

On the other hand, there are numerous authorities upholding the construction sought by the executor (Bowers v. Smith, 10 Paige, 193; Youngs v. Youngs, 45 N. Y., 254; Estate of L’Hommedieu, 32 Hun, 10; King v. Strong, 9 Paige, 93; Van Kleeck v. R. D. Church, 6 Paige, 600).

I hold, therefore, that the election of the widow to take her dower "interest debars her from taking any share of the leasehold property, which has become a part of the residuum and goes to the residuary legatee.