In re Collard's Estate — 18 N.Y.S. 176

Majority

p. 176

In re Collard’s Estate.

(Surrogate's Court, Orange County.

November 2, 1891.)

Headnote

Allowance to Widow—Conversion of Realty.

Laws 1889, c. 406, § 3, provides that, when a decedent leaves a widow, there shall be set apart to her certain personal property not to exceed $150 in value, and in case her interest in her deceased husband’s real estate, “in addition to her dower right, and together with said §150, ” shall be of less value then $1,000, then personal property of an amount sufficient to make up the sum of $1,000 shall be set apart to her. Held that, where the deceased husband did not leave sufficient personalty to make up such.sum of $1,000, the proceeds of land sold under the will could not be used to make up the deficiency; but the widow, in such case, will take all the personalty free from debts and expenses of administration.

Proceeding for the judicial settlement of the estate of James L. Uollard, deceased.

G. G. Bill, for the executors. George II. Becker, for the widow.

James L. Collat'd died August 30,1889, leaving a will which has been admitted to probate. At the time of his death he was the owner of a farm, which has since been sold by the executors for $4,062.50. The farm was subject to a mortgage for $1,000, which was signed by his widow. Deceased also had about $300 of personal property. The deceased left a widow, who was childless, but children by a former marriage survived him. The question now to be determined is, what are the rights of the widow under chapter 406, Laws 1889? Section 1 of that act, giving $1,000 to the widow from the estate of the deceased, does not apply in this case, the deceased not having died intestate. In ascertaining the rights of the widow under the pro-’ visions of section 2 of the act,^[1] following the rule laid down in Re Daggett, (Surr.) 9 N. Y. Supp. 652 , which was affirmed in general term, and reported in 14 N. Y. Supp. 182 , (Sup.,) overruling the decision in Re Steward, (Surr.) 10 N. Y. Supp. 24 , we must ascertain the present value of her dower, which is $307.41, and to this must be «added the $150 given her by statute, making together the sum of $457.41. To this latter sum must be added, from the personal property, $542.59, to make up the required sum of $1,000, if there is so much, or, if there is not so much, what remains. The personal property isjiot sufficient to make up the amount required so that the widow may receive a full $1,000. And this raises the further question whether the conversion of the real estate into personalty by the sale, under the will makes the proceeds of the sale personal property, within the meaning of the act. I think not. The amount to be set apart from the personal property to make up the

1 Laws N. Y. 1889, c. 406, § 3, provides that, when a decedent leaves a widow, there shall be appraised and set apart to her certain personal property, not to exceed $150 in value, and, in case her interest in the deceased husband’s real estate, “in addition to her dower right, and together with said $150, ” shall be of less value than $1,000, then said appraisers shall set apart, for the use of the widow, personal property which, together with said real estate, shall amount to $1,000 in value.

p. 177

$1,000 is to be ascertained and set apart by the appraisers, whose acts relate only to property as it was left by deceased. The deceased could not direct a conversion of the realty into personalty, which would defeat the dower, and, being considered real for the purposes of the dower, it cannot at the same time be considered personal for the purposes of the act. The rights given the widow by this act are received by her independently of the will, and they are therefore to be determined by the nature and character of the property before being affected by the will. In this case the widow, therefore, has no claim to the proceeds of the sale of the real estate other than the value of her doxyer right. She, however, takes all the personal property, free from any charge for debts or expense of administration. In re Daggett, supra,