De Graaf v. Cochrane — 21 A.D. 381

Majority

p. 381

Amanda M. De Graaf and Henry D. Cochrane, as Executors, etc., of Henry P. De Graaf, Deceased, Respondents, v. Elizabeth M. Cochrane and Others, Defendants; Florence L. De Graaf and Others, Appellants; Amanda M. De Graaf, Respondent.

Headnote

Will—a direction to executors to free from liens land devised to a wife in lieu of dower.— duty of the executors to pay a mortgage thereon, . although the land was conveyed to the wife during the testator’s life.

A testator, after devising to his wife a parcel of land, directed that “said tract or parcel of land be freed and discharged by my said executrix and executor, as soon as may be after my decease, of and from any and every claim and lien whatsoever, existing thereon at the time of my said decease,” and by.a subsequent clause of the will provided, that this and other dispositions in favor of his wife, contained in the will, were to be in lieu of his wife’s dower. Subsequently, the testator conveyed the land to his wife by a warranty deed subject to the lien .of a §50,000 mortgage thereon (not given by the testator), which was a. lien thereon when the will was made.

Held, that it was the duty of the executors to pay the mortgage.

Appeal by the infant defendants, Florence L. De Graaf and others, by their guardian ad litem, from, a judgment of the Supreme Court in favor of the plaintiffs and of the defendant Amanda M. Dé Graaf, entered in the office of the- clerk of the county of New York on the 25th day of May, 1897, upon thé report of a referee.

Henry P. De Graaf died seized of a large amount of real estate, leaving a last will and-testament. By' the 2d clause of his will he devised to his wife Amanda a parcel of land on the southwest corner of Fifth avenue and One Hundred and Twenty-fifth street, and directed that “ said tract or parcel of land be freed and dis- . charged by my said executrix and executor, as soon as may be after my decease, of and from any and every claim and lien whatsoever, existing thereon at the time of my said decease.” At the time the will was executed, and at the testator’s death, there existed a mortgage for $50,000 on said parcel. By the 3d and 4th ■ clauses of the will he gave to his wife certain household furniture, some cash and other personal property ; and by the 5th clause the foregoing devise and bequests were declared to be in lieu of dower. After the execution of the will, and before the testator’s death, he caused the premises devised to his wife to be conveyed to

p. 382

her by warranty deeds, subject to the lien of the $50,000 mortgage. At the time of his death the wife was, and still is, the owner of these premises, subject' to the lien of the mortgage. The testator' was not a party to this mortgage, and not personally liable thereon.

The executors have refused, to pay the .mortgage of $50,000 because of their doubts as to their right to do so, and until the question as to the amount the widow is to receive under the will has been determined, she has declined to make an election between the provisions of the will and her dower rights as widow. The issues were sent to a referee to hear and determine, and, by his report and decision, the executors are directed to pay the mortgage of $50,000. This decision having been affirmed by the Special Term, from the judgment and decree entered accordingly this appeal is taken.

Hugo H. Pitterbusch, for the appellants.

Thomas P. Wickes, for the executors, respondents.

James M. Fisk, for the defendant, respondent.

The single question presented is, as to whether the conveyance of the property in question, during the lifetime of the testator, and after the making of the will, relieves his estate from the payment of the $50,000 mortgage on the property specifically devised by his will to his wife. It is beyond question that what the testator intended to give her in lieu of dower, in addition to the personal property, was this real property, free and clear of all liens. To make the assurance doubly sure that she would have it after his death, he conveyed it to her during life. By such conveyance during life, which secured to her this real estate beyond perad venture, it cannot be assumed that the testator cut down or lessened the provision which by will. he intended for his wife. Concluding, therefore, as we must, that so much of the will as relates to the devise of the property is no longer operative, because the testator has, in that regard, executed his own will, there still remains the provision and direction that out of his estate there" should be paid all liens upon that property, and there is no dispute as to what those liens were at the time of the making of the will and when the property was conveyed to the wife, and at the testator’s death. It seems to

p. 383

be reasonably free from doubt, if we are to carry out what was the clearly expressed intention of the testator, that his wife was to get certain personal property and this real estate, free from all incumbrance, in lieu of dower; and to effectuate that it is necessary that the executors should pay that amount and thus carry out the testator’s intention.

I think the decision of the referee was right, and the judgment appealed from should be affirmed, with costs.

Van Brunt, P. J., Rumsey, Patterson and Parker, JJ., concurred.

Judgment affirmed, with costs.