Jurgensen v. Dana — 162 A.D. 42

Majority

p. 42

Kathryne Floyd Dana Jurgensen, an Infant, by Edward J. Lynch, Her Guardian ad Litem, Appellant, v. Richard Floyd Dana and Hazel B. Dana, Appellants, Impleaded with Ethel Floyd Dana Shepherd and Others, Respondents.

Second Department,

April 10, 1914.

Headnote

Partition — devise of lands to life tenant with power of sale — conveyance by remainderman to life tenant — exercise of power of sale — subsequent devise of lands sold under power of sale — disproportion in values of lands devised—inchoate dower — election — voluntary conveyance.

A testatrix devised her real estate to her husband for life, appointing him executor with power to sell the lands and reinvest the proceeds, on the death of the husband the lands to go to her three children, J., E. and R., share and share alike. On the death of the testatrix the children J. and E. conveyed them undivided remainders in the land to their father, the executor, who, subsequently, under the power of sale conveyed the lands for a nominal consideration, the grantee subsequently reconveying to him. The life tenant owned of his own right certain property in a foreign State which by will he devised to his son R. and his wife, as joint tenants, with a bequest to each of them, which devise and bequest they accepted. He also devised to his daughter E. a life interest in a portion of the lands formerly owned by his wife, and which were sold by him under the power of sale, with a remainder over. This suit is brought by the only child and heir of the son J. to partition the lands devised to the daughter E.

Held, that the testator intended to devise the whole title of the lands sought to be partitioned;

That it is immaterial what interest the testator had in the land or what he believed concerning it provided that his will shows a clear, intention to dispose of the whole fee;

p. 43

That the disproportion in values of the lands devised by the testator is unimportant save as it may bear on his intention;

That the inchoate right of dower of the wife of the son R in his undivided portion of the land sought to be partitioned is a sufficient interest to compel her to make an election;

That as the plaintiff’s father conveyed his interest in the land sought to be partitioned unconstrained by undue influence exercised by the grantee, a failure to recognize him in his will did not affect the validity of the conveyance;

That the joint tenancy of the son R and his wife in the lands in the foreign State devised to them did not compel them to elect in unison, but that they may elect severally.

Separate appeals by the plaintiff, Kathryne Floyd Dana Jurgensen, and by the defendants, Eichard Floyd Dana and another, from, parts of an interlocutory judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Suffolk on the 14th day of August, 1913, upon the decision of the court after a trial at the Suffolk Special Term.

Kathryne Floyd Dana, deceased, by her will gave to her husband, William B. Dana, all her property, real and personal, “to hold and enjoy during his life and to use the entire income therefrom for his own purposes,” and appointed him executor, with power to sell and convey any portion of the property and reinvest the proceeds. Upon the death of her husband she gave the property to her three children, John K. Dana, Ethel Floyd Dana and Eichard F. Dana, share and share alike. The husband, after the probate of the will, entered into the use and occupancy of the property and continued to enjoy the same until his death. After his death this action was brought to partition certain of the real property formerly owned by Mrs. Dana. At the time of Mrs. Dana’s death John K. Dana was about twenty-four years old. Shortly after her death and before her will was probated he conveyed to William B. Dana, his adopted father and the executor under the will, his undivided one-third interest in the real property in suit and of all benefits accruing to him under the will. At the same time Ethel Floyd Dana, by like deed, conveyed her share in the property to her father. The plaintiff in this action is the only child and heir of John K. Dana. Subsequent to the

p. 44

execution of the deeds mentioned William B. Dana, the executor, under the power contained in" the will, sold all the lands he held as executor under his wife’s will, including the real property in suit, to a third party for $1, who, on the same day, reconveyed the property back to him. William B. Dana, at the time of his death, owned certain real property in California, which he devised to Bichard Floyd Dana and Hazel B. Dana, his wife, as joint tenants, and also bequeathed to them $2,500 each, which devise and bequest they accepted. The lands, to partition which this suit is brought, were devised to Ethel Dana Shepherd for life, with remainder to William Shepherd Dana or to his issue.

George R. Bristor [William B. Stites and Joseph W. Bristor with him on the brief], for the appellants.

Percy L. Housel [Winthrop E. Dwight and Ralph W. Gwinn with him on the brief], for the respondents.

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

p. 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.

Cases cited

Havens v. Sackett & Havens 15 N. Y. 365 N.Y. p. 44
Lee v. Tower 124 N. Y. 370 N.Y. 1891-03-03 at 375 p. 44
Simar v. Canaday 53 N. Y. 298 N.Y. 1873-09-23 p. 44
Wallach v. Riverside Bank 119 App. Div. 238 N.Y. App. Div. 1907-05-31 p. 44