Majority
p. 400Matter of the Estate of John S. Foster, Deceased. (Surrogate’s Court, New York County, January, 1916.)
Headnote
Dower — when widow not entitled to — gift of life estate in real estate — authorization to executors and trustees to mortgage.Where testator gave his wife a life estate in all his real estate after payment of taxes, insurance and repairs and authorized his executors and trustees to mortgage said real estate in certain contingencies, the widow is not entitled to dower therein.
Appeal from an order fixing the transfer tax.
Hardy, Stancliffe & Whitaker (Noah A. Stancliffe, of. counsel), for appellants.
Lafayette B. Gleason (Schuyler C. Carlton, Alexander Otis, with him on the brief, of counsel), for state comptroller.
The executors of decedent’s estate contend that his widow is entitled to dower in addition to the provisions contained in the will for her benefit. The transf er tax appraiser refused to deduct the value of .the widow’s dower from the assets of the estate, and the. executors have appealed from the order entered upon his report. The decedent gave his wife a life estate in all his real estate after the payment of taxes, insurance and repairs. His executors and trustees were also authorized to mortgage the real-estate in certain contingencies. The courts have held that when a testator 'gives all his real estate in trust and the trustee‘has power to insure the property, to make repairs
p. 401
or to mortgage it, such control over the real estate is inconsistent with the right of the widow to one-third of it during her life. Asche v. Asche, 113 N. Y. 232 ; Matter of Gordon, 172 id. 28. I have had occasion in a recent case (Matter of Gale, 83 Misc. Rep. 687 ) to examine this question at some length, and the reasons given for my conclusion in that case apply with equal force to the matter now under consideration. I will therefore hold that the widow is not entitled to dower in addition to the provision made for her in the will of the testator. Order fixing tax affirmed.
Order affirmed.
Cases cited
- Asche v. Asche 113 N. Y. 232 p. 401