Smith v. Kniskern — 4 Johns. Ch. 9

Majority

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Smith and another against Kniskern and others.

January 8th.

Headnote

A testator possessed of a large real and personal estate, bequeathed to his wife, his household furniture, &c. and “ her comfortable support and maintenance out of his estate, to be, from time to time, rendered and paid to her by his executors, and the use of one room in his dWelling-house, during all such time as she should continue to lie his widow, and no longerAnd after a legacy to a granddaughter, he devised the rest of his estate equally between his two daughters : Held, that though the charge of a “ comfortable support and maintenance,” might fall upon the real as well as the personal estate, it did not affect the widow’s right of dower ; there being no express declaration on the subject by the testator, nor any thing inconsistent in the two claims, and that, therefore, the widow was not to be put to her election.

BILL for a partition. Jacob Kniskern died possessed of a large real and personal estate in Schoharie, and by his last will, dated the 23d of February, 1818, he gave to his wife, “ all his beds and bedding, together with all his household furniture, his negro wench S. and negro boy and her comfortable support and maintenance out of his estate, to be, from time to time, rendered and paid to her by his executors, and the privilege and use of one room in his dwelling-house during all such time as she should continue to be his widow, ■ and no longer.” He next directed his executors to sell so much of his personal estate as to raise 330 dollars, including his outstanding debts, and to pay 300 dollars of the sum to his granddaughter C., and the 30 dollars to be laid out in furniture for her, &zc. The testator then gave a moiety of all the residue of his estate, real and personal, to his daughter Eve, and the other moiety jo his daughter Elizabeth. The bill prayed for a partition, and that the widow might be decreed to elect w-hether to take the provision under the will, or to claim her dower.

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The widow, in her answer, insisted, that she was not bound to make an election, but if she was bound, she-elected to take the provision under the will.

B. Chamberlain, for the plaintiffs. 1 Term, Rep. 411. 2 Term Rep. 656. 3 Term Rep. 359. 4 Term Rep. 93. Co. Litt. 36. b. Cruise’s Dig. tit. Dower, c. 5. s. 33. 35.

I. Hamilton, contra. He cited Cruise, tit. Dower, c. 5. s. 22. 29. Adsit v. Adsit, 2 Johns. Ch. Rep. 448 .

The charge of a “ comfortable Support and maintenance,” falls, probably, upon the real estate as well as the personal. But the latter ought to be first applied ; and as the executors were directed to render the maintenance from time to time, and as no authority is given to them over the real estate, it would seem that the testator had a particular reference to the personal estate, in making that provision for his wife. I do not perceive, however, that the provision destroys the right to dower. There is no inconsistency between the two claims, even supposing the charge for maintenance to rest upon the real estate. From the large and valuable real estate set forth in the pleadings, and admitted, it is quite apparent that the real estate is much more than adequate to furnish the support and the dower. There is nothing repugnant in the operation of the two claims; and the assertion of the right of dower, will not disturb or defeat any provision in the will. A comfortable maintenance is a provision of a very modest pretension, and it can easily be supposed to have been intended to aid the right of dower, and to secure, in' every event, comfort and competence to the wife.' But whether the testator had any thought, at the time, of the claim of dower, cannot be certainly known. It is sufficient that he has not made any declaration of his will on the subject, and, therefore, the doctrine in Adsit v. Adsit will

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apply, and must govern the case. The rule 'is, that the widow takes both provisions, unless the estate is insufficient to support both, or such an inconsistency appears between' the provisions in the will, and the dower, as to make the intention clear and indubitable, that both provisions were not to be taken.

I shall accordingly declare, that the widow is not to be put to her election.

Decree accordingly.