Summary
In Gorden v. Gorden (80 App. Div. 258; affd. on the opinion below, 179 N.Y. 549) it was held that, although some of the defendants in the action were children of the testator, it appearing that they were not sued as children but as beneficiaries under the trust, the damages should be computed from the time of the demand.
Summary of this case from Roessle v. RoessleOpinion
February Term, 1903.
George W. McKenzie, for the plaintiff.
James O. Miller, for the defendant Joseph Gorden.
James A. Sheehan, for the defendant Stephen M. Hoye.
Present — GOODRICH, P.J., BARTLETT, WOODWARD, HIRSCHBERG and JENKS, JJ.
The decision of the Court of Appeals in Matter of Gorden ( 172 N.Y. 25, modifying 68 App. Div. 388), to the effect that the widow of William Gorden, having begun this action for the admeasurement of her dower, is not entitled to the provisions made for her benefit by the will, in addition to dower, greatly simplifies the disposition of the questions arising upon the present appeals.
The plaintiff is dissatisfied with the judgment herein because it follows the interlocutory judgment in making the time for the computation of the damages sustained by the plaintiff for the withholding of her dower begin on March 31, 1900, the date of the commencement of this action, instead of January 2, 1899, the date of the death of the testator. This provision of the judgment, however, seems to be correct under section 1600 of the Code of Civil Procedure, which prescribes that such damages shall be computed where the action is against the heir from the husband's death or where it is against any other person from the time when the widow demanded her dower. Although some of the defendants sued herein are children of the testator, they are not sued as such, but as beneficiaries under a trust, the legal title of the property being in their trustees. The judgment, so far as appealed from by the plaintiff, should, therefore, be affirmed.
As to the appeal of the defendant Joseph Gorden, as trustee, which is based substantially upon the proposition that the proof shows the executors and trustees to be entitled to $440.25 more than is awarded to them by the judgment, it seems also quite clear that said appellant is entitled to the increase thus sought, upon the admitted facts. It was expressly conceded upon the trial by counsel for the plaintiff that she had received property under the 7th and 9th paragraphs of the will, which was of the actual value of $440.25. The judgment should, therefore, be modified by deducting this sum from the amount awarded therein as damages for the withholding of the widow's dower.
As to the appeals of the defendants Gorden and Hoye, as executors and trustees, from that portion of the judgment which decrees that the plaintiff is entitled to the benefit of the provisions of the will in addition to her dower, the judgment must be reversed, upon the authority of the decision of the Court of Appeals in Matter of Gorden ( supra).
The judgment must be modified in accordance with this opinion.
Judgment modified in accordance with opinion per curiam. The question of the costs to be inserted in the order to be settled on notice before Mr. Justice BARTLETT.