Jurgensen v. Dana

Thomas, J.: The testator gave the land in California to the defendants, appellants, in joint tenancy and a legacy to each, and to Ethel Floyd Dana Shepherd and William Shepherd Dana all of the land in Suffolk county, although Bichard Floyd Dana owns the fee in an undivided third of it, and his wife, Hazel, has an inchoate dower right in it. It is decided (1) the testator intended to devise the whole title in the land in Suffolk county; (2) it is immaterial what interest the testator had in the land or what he believed concerning it, provided the will shows, as it does, a clear intention to dispose of the whole fee (Havens v. Sackett, 15 N. Y. 365; Beetson v. Stoops, 186 id. 456); (3) disproportion in values of the lands is unimportant, save as it may bear on the testator’s intention (Lee v. Tower, 124 N. Y. 370, 375); (4) the inchoate dower right of Hazel B. Dana in the land in Suffolk county is a sufficient interest to constrain her to make election (Simar v. Canaday, 53 N. Y. 298; Wallach v. Riverside Bank, 119 App. Div. 238; Lee v. Tower, 124 N. Y. 370); (5) the plaintiff’s father, John Kirkland Dana, conveyed his interest in the land in Suffolk county unconstrained by any undue influence by the grantee, but induced to the act by the [45] wish expressed to him by his adopted mother. The failure of the testator, William B. Dana, to recognize in his will a sentiment so honorable, may affect- a favorable estimate of his generosity but not the validity of the conveyance; (6) the judgment provides for a joint or concurring election by Richard Floyd Dana and his wife, whereas then* property interests are individual. The joint tenancy in the land in California does not so unify the tenants as to compel them to elect in unison. They may elect severally, and have sixty days to do so after entry and service of the final judgment upon their attorneys, and the judgment appealed from should be modified accordingly, and as so modified affirmed, without costs in this court. Jenks, P. J., Burr, Carr and Rich, JJ., concurred. Judgment modified in accordance with opinion, and as modified affirmed, without costs in this court. Order to' be settled ■ on notice.