Gray v. Gray

Russell, J.

This action having been tried at a Special Term

of this court, held at the court house in the city of Mew York on the '23d day of October, 1895, the various parties appearing by their respective counsel, and their proofs and allegations having been duly heard and considered, judgment is directed as follows, namely:

First. The purpose of the testator to provide a home for. his widow in the Eleventh street house failed by the sale thereof, in which the widow joined as dower ess.

Second. Mo valid substitution of the Seventy-second street house was made for the benefit.of the widow.

Third. The other provisions of the will in favor of the widow are effective, and she is entitled to the benefit thereof, if she elects to claim under the provisions of the will.

Fourth. She is entitled to dower in the real estate bought by the testator after the sale of the Eleventh street house to the amount of the purchase price received by him for the sale of the Eleventh street house.

Fifth. There is no undue suspension of the power of alienation to any party, and the terms of the will are valid, except as herein directed.

■ Sixth. The plaintiff is not entitled to dower in any of the real estate except as hereinabove indicated, in case she elects to receive Under the provisions of the will.

y Seventh. Judgment is directed accordingly, with costs to the parties appearing payable out of the estate.

The grounds upon which this decision is rendered are that the scheme of the will provided for a disposition of the entire estate freed from the claim of the widow for dower. The general purpose and scheme of the will remained in force at the death, except. 6s to the Eleventh street house, which was disposed of with the consent of the widow, and the proceeds of the sale of that house Were received by the testator; and, as the value of the Eleventh street house was not included in the division of his estate under the general purpose of his will, the widow’s release of dower cannot be held to have been designed to apply to that portion which she was to receive absolutely. She, however, has' a diminution • of the value of her interest in the estate by the sale of the Eleventh street house, except as to the value of her dower interest'in said Eleventh street house, which was designed as a home for her.

There is no separate share which is suspended in the power of alienation for more, than two lives in being.

Ordered accordingly.