Majority
p. 575(42 Misc. Rep. 244.) WILMOT v. ROBINSON et al. (Supreme Court, Special Term, Albany County. December, 1903.)
Headnote
1. Wills—Devise in Lieu of Dower—Partition.Where testator devised an interest in real estate to his widow in lieu of dower, and the provision was accepted by her, it became a debt of the estate, and, where the personalty was insufficient to pay it, provision for it should be made in an action to partition the real estate.
Action by Amia Wilmot against Abigail A. Robinson and others for partition. Judgment for plaintiff.
The will under which parties to this action claim title contains the following: “1st. After all my lawful debts are paid and discharged I give, devise and bequeath to my wife, Anna, one-third of my real estate * * *, also the sum of $400 in cash all of which is to be in lieu of her dower right in my estate. 2nd. I give, devise and bequeath to my brother, John H. Wilmot of Troy, N. X., and to my sister, Abigail A. Robinson, of Schenectady, N. X., the remaining two-thirds of my said real estate, share and share alike,” etc.
p. 576
Sanford & Sanford, for plaintiff.
Mead & Hatt, for defendants Abigail A. Robinson and Hanford Robinson, executor.
John W. Roberts, for defendants John H. Wilmot and Selina Wilmot.
By the legacy given to the widow in lieu of dower, and its acceptance by her, her interest in the estate became that of a creditor. The legacy was the price tendered to her for the purchase of her interest in the realty. By accepting it she became entitled to the price. It was a debt against the estate, payable, like other debts, first out of the personalty, and, if that is insufficient, then out of the realty, and I see no reason why a provision should not be made for its payment in these proceedings.
Ordered accordingly.