O'Hara v. Dever

By the Court, J. F. Barnard, J. The husband of the plaintiff died, leaving a will, and therein bequeathed the whole surplus of his personal estate remaining after the payment of debts and legacies, and the plaintiff is entitled to no share of such estate, unless it is obtained by the terms of the will itself. The testator, by the fifth clause of his will, bequeathes and devises all the rest, residue and remainder of his estate, both real and personal, to his two children, “ subject nevertheless to the dower and thirds of my wife, Mary O’Hara.” This clause presents two questions. Do the words dower and thirds .have reference to the real estate only; and if they "can fairly be construed to refer to both real and personal property’ what rights did the widow get under them in tile personal property bequeathed by this'clause. I am satisfied that" the word thirds has’ no reference, in this clause, to the personal property. If the widow was entitled to distribution, as in case of intestacy, she would take absolutely one third of the personal property! The clause in question gives all his real and personal property to his children, “to be divided detween them, share and share alike,” subject to the dower and' thirds of his .wife, Mary O’Hara. It seems to me quite improbable that the testator intended that his personal property was to be divided in three parts, from this language. The gift is subject to the dower and thirds, burdened with a recognized legal lien and right, and such an estate could only exist as to the real estate. She hacl no claim to the personal estate, except by this will. The will has not given it, except by this clause, and the clause refers to dower and thirds as an existing thing, subject to which this estate is given. If the words can be construed to refer to real and personal property, then I think they are not sufficient to bequeath any portion of the personal estate. The gift to the children is absolute, subject to the plaintiff’s thirds. She had no thirds. The testator has failed to convey to her any interest, [615] [Kings General Term, February 12, 1866. and the gift to his children, subject to a claim which had no existence, is an absolute gift. I think the plaintiff not entitled to any interest in the personal property, under the fifth clause of the will of the deceased, and that distribution is to be made to the children of the deceased, share and share alike, as named in that clause, by their representatives. Judgment accordingly. Scrugham, J. F. Barnard and Lott, Justices.]