In re the Estate of Koch

Application is made by the widow of decedent for a decree requiring the executor to set apart property, as prescribed by chap. 406, Laws of 1889.

The testator died leaving no real estate or interest in real estate, and by his will bequeathed all his personal property to his wife, the petitioner herein, except a certain mortgage of $1,000, which was bequeathed to his infant son.

By the inventory, which has been duly made and filed, it appears that the entire value of the personalty is about $1,200, including the mortgage above mentioned.

It is claimed by the petitioner that, in addition to the property bequeathed to her, the executor should set apart other property, to the value of $850.

She evidently applies under § 1 of chap. 406, Laws of 1889 ; but this section applies only to cases of intestacy.

I am of opinion that § 2 of the act of 1889, supra, which amends chap. 157 of the Laws of 1842, is applicable to this case. It is as follows: “ Sec. 2. When a man, having a family,, shall die, leaving a widow or minor child or children, there .shall be inventoried by the appraisers, and set apart for the use of such widow and child or children, or for the use of such child or children, in the manner now prescribed' by the ninth section of title third, chapter sixth of part second of the Eevised Statutes, necessary household furniture, provisions, -or other ¡personal property, in the discretion of said appraisers, to the value of not exceeding $150, in addition to the articles of personal property now exempt from appraisal by said section. And in case the interest of a widow in the real estate of a deceased husband, in addition to her dower right, and together with said one hundred and fifty dollars, shall be of less value than one thousand dollars, then said appraisers shall set apart for the use of such widow, or for the use of such widow or child, and children, in the manner hereinbefore prescribed, personal property which, together with said real estate, shall amount toi one thousand dollars in value. Said appraisers are authorized to make an appraisal of the real estate to which the widow may be entitled, for the purposes of this section. The provisions of this section shall apply where a man dies intestate, as well as where he leaves a last will and testament”

The Eevised Statutes, part 2, title 3, chap. 6, art. T, § 9, as amended by the Laws of 1874, chap. 470, provide that certain personal property enumerated in the section shall not be deemed assets of a man dying and leaving a widow or a minor child or children, but shall be included and stated in the inventory of the estate without being appraised.

Under the Eevised Statutes, before their amendment in 1874, and the act of 1842, it was settled that the appraisers must set apart property to the value of $150 in addition to the articles specified as exempt, Sheldon v. Bliss, 8 N. Y., 31 , and the exemption of “household furniture which shall not exceed $150 in value,” added to the Revised Statutes by the act of 1874, is in addition to that specified in the act of 1842. Matter of Miller, 1 Law Bul., 48; Redf. Surr. Pr., 425. The act of 1874 in nowise repeals the act of 1842, but both must be read and construed together. Matter of Eisemann, 3 Dem., 72 .

The amendment of § 2 of the Laws of 1842, by the act of 1889,

I am of the opinion that this provision only applies where real estate is left; that it does not mean that where a man dies, leaving no real estate, the appraisers shall set apart personal property to the value of $1,000, in addition to those articles enumerated in the Revised Statutes, supra.

In other words, where a- man dies leaving personal property only, the law is in precisely the same condition it was before the act of 1889 was passed.

By the inventory made and filed herein it appears that there is personal property which would come within the enumeration of articles exempted by the Revised Statutes, supra; this property, however, is bequeathed to the widow.

Submit decree directing that the appraisers heretofore appointed shall inventory and set apart for the use of the widow and minor child necessary household furniture, provisions, or other personal property in their discretion to the value of not exceeding one hundred and fifty dollars, in addition to the articles of personal property now exempt from appraisal by Revised Statutes, part 2, chap. 6, title 3, § 9.