Opinion
Argued May 28, 1928
Decided June 12, 1928
Appeal from the Supreme Court, Appellate Division, Second Department.
Samuel J. Fisher and Joseph A. Kennedy for appellant.
James F. McNaboe for respondents.
By his will, after a legacy of $3,000 to his wife, Mr. Kennedy bequeathed the residue of his estate to trustees. They were told to invest this fund and to pay the income to Mrs. Kennedy for life. He made most careful provision that she should herself receive this income unimpaired by any claims of others and he added that the provisions in her favor "are in lieu of dower, thirds and all other interest in my estate, real, personal or mixed."
He evidently expected her to receive the bequest as a satisfaction of any legal claims she might assert. These in fact were slight. There was little or no real property, although he apparently believed he had some title to his residence. In truth, on his death, it passed to the wife as tenant by the entirety. His personal property amounted to about $85,000. He apparently believed also that the wife did or might have some claim to a part of this sum. But he desired her to take what he gave as he gave it. He wished himself to make final disposition of the principal. If she asserted any legal rights it was to be at the expense of forfeiting any provisions he had made for her benefit. Then he gives the remainder in specified proportions to charities and to relatives.
He knew his wife might refuse to accept what he had given. If so he makes no alternative bequest to her. She may take what the law will give her. That he cannot prevent. But if she does so, and elects to take "her dower and thirds as allowed by law" then he gives the residue of his estate "which may remain after allotment of my said wife's dower and thirds" to others.
We see here no intent to give her anything but an interest in the trust fund, no intent to give her that, or if she so desires to give her what she would have received had he died intestate. Had he so died she would have received not dower and a third of his personalty but a half. We construe the provision merely as a gift of the principal of the trust estate to charities or relatives in case the wife prefers to take that to which she may have a legal claim. If, believing otherwise, she renounced the provisions made for her, if she, too, thought she had a claim to a third of her husband's personalty, it may be unfortunate for her surviving relatives. They, however, lose little they would not have lost had she decided otherwise. Clearly the testator did not desire that they should share in the principal of his estate, certainly not beyond the legacy of $3,000 which he gave her absolutely.
The order of the Appellate Division should be reversed and the decree of the surrogate affirmed, without costs in the Appellate Division and in this court.
CARDOZO, Ch. J., POUND, CRANE, LEHMAN, KELLOGG and O'BRIEN, JJ., concur.
Ordered accordingly.