In re Hembury's Estate — 75 N.Y.S. 933

Majority

p. 933

(37 Misc. Rep. 454.)

In re HEMBURY’S ESTATE.

(Surrogate’s Court, Kings County.

March, 1902.)

Headnote

Widow’s Allowance.

Where a man dies leaving none of the articles specified in Code Civ. Proe. § 2713, subd. 4, the widow is entitled to the money in lieu thereof, though the appraisers have allowed her $200 under subdivision 3 of said section, and $150 under subdivision 5, because there were no such articles as are enumerated in these latter subdivisions.

p. 934

In the matter of the estate of James Hembury, deceased. Motion for an appraisement to widow. Granted.

Thomas C. Pilsworth, for executor.

Steele, De Friese & Frothingham, for Agnes Hembury.

Arthur A. Michell, for Elizabeth Wakefield, Mary Ann Lees, and Frank Hembury.

The question arises as to the extent of the widow’s exemption under section 2713 of the Code, and what amount in cash shall be allowed the widow where the deceased did not leave the specific property referred to in that section.

It appears the appraisers have allowed $200 under subdivision 3 of this section, and $150 under subdivision 5 of this section. This is not objected to, but an allowance of $150 under subdivision 4 is objected £0. The object of this statute was to give a special relief to a widow, and is entitled to a liberal construction; and where the deceased did not leave the specific articles referred to in the statute, then the widow should be entitled to an equivalent in cash. In re Williams, 31 App. Div. 617 , 52 N. Y. Supp. 700 . Counsel concede this is so, but say that this reasoning does not apply to the articles mentioned in subdivision 4 of this section. I am unable to see the force of this reasoning. The articles referred to in subdivision 4 were not to be taken in the alternative of anything else provided for. On the contrary, if the deceased left the peculiar personal property provided in this section, the widow would have received $150 worth of the same, in addition to the specific property mentioned in subdivision 3 and the $150 worth of property provided for by subdivision 5. There being no such specific property, she is entitled to the value of the same in cash, viz., $150.

Motion granted.