Sullivan v. Mara

By the Court, Sutherland, J. It appears to me plain that the dispositions of the testator’s property intended'by his will can riot be carried out consistently with allowing the claim of his widow, Catharine Mara, for dower, in addition to the provisions made for her by the will. The first article of the will contains an absolute gift and bequest to the testator’s wife, Catharine Mara, “ of one-third of all the property possessed ” by the testator at the time of liis death, and an absolute gift and bequest of the other two-thirds, to the testator’s son William Mara. By the second article of the will, the executors are authorized to sell and convey in fee simple, all, or any part of the testator’s real estate, and to rent and lease all or any part of it, until disposed of as aforesaid; and the testator then, by this article, declares it to be his intention to give his executors “ the general superintendence and control over his real and personal estate, to manage the same in such manner as they in their discretion shall think best for the interest of my wife and child, the net income arising therefrom to he divided hetiveen my wife and child, in manner before stated.” By the third article, the testator declares, if his son should not attain the age of twenty-one years, then he gives and bequeaths the interest of his son to the testator’s mother, Ellen Mara, for her own use and benefit forever. By the fourth article, he appoints his brother Mathew Mara guardian of his son, and directs that his son be suitably provided for and be liberally educated, and morally and religiously instructed, and that all money not necessary for that purpose be deposited in one or more of the savings [527] banks in the city of Hew York, or invested on bond and mortgage, on property worth double the sum loaned or invested. After the making of his will, the testator died, in 1858, seised and possessed of three or Four lots of land, and a small personal property, both then not exceeding in value $10,000, leaving Catharine Mara, his widow, and an only child, a boy, William Mara, now about eleven years of age. It does not appear from the case agreed upon and submitted, that Catharine Mara, the widow, claims dower in any lands except such as the testator died seised and possessed of. The testator evidently intended that his widow should have, under or by his will, the benefit of one-third of all his estate real and personal after the payment of his debts, absolutely and forever. He probably intended, that she should have only one-third of the income until his son became of age, or until his death, if he died sooner. It is evident, too, that the testator intended that his son, if he lived to the age of twenty-one, should have the benefit of the remaining two-thirds of all his estate real and personal, absolutely and forever; and until he became twenty-one, or his death before twenty-one, that so much of two-thirds of the income as was necessary for such purpose should be used for his maintenance and education, and the remainder be invested for his benefit. The testator expressly declares, if his son should not attain the age of twenty-one, that then the testator’s mother should take the interest of his son, for her use and benefit forever. How, it is certainly plain, that in not one of these particulars can the testator’s testamentary intention be carried out, if the widow is allowed dower, in addition to the provisions made for her by the will. In the first place, if one third of the real estate is set off to her for dower, she can not take, under the will, the one528 third of the net income of all the testator’s real and personal estate until the son becomes twenty-one, or his death sooner; nor one-third of all the estate real and personal, absolutely and in possession, on the son becoming twenty-one, or dying sooner. New York General Term, February 6, 1865. In the next place, if one-third of the real estate is set off for her dower, the executors can not exercise the discretionary power given them, to sell or lease all or any of the real estate. In the next place, if one-third of the real estate is set off for her dower, two-thirds of the income of the whole estate, in her life time, can not be used and invested for the benefit of the son, as directed by the will; nor, if he should attain the age of twenty-one, before the death of his mother, could he take absolutely and forever two-thirds of all the estate, or the proceeds thereof; nor, in case of his death before twenty-one, living his mother, could the testator’s mother take the son’s testamentary interest in the whole estate. How there is not much satisfaction in looking at cases on this question. It is difficult to gather from them any definite, practical, useful rule, but I think the following cases will sufficiently show that the widow in this case was put to her election : Dodge v. Dodge, 31 Barb. 413 ; Chalmers v. Storil, 2 Ves. & Beames, 222 ; Parker v. Somerby, 27 Eng. Law and Eg. 154 ; Herbert and others v. Wren and others, 7 Cranch, 370-378. There should be judgment in accordance with the views above expressed. Ingraham, Clerke and Sutherland, Justices.]