Neilson v. Neilson

The rights of the parties under this will, in reference to the question now presented, were in nowise altered by the change which took place in the testator’s family after the making of the will. The devise of the farm to the first wife was neither in terms, nor by necessary implication, a devise to her in lieu of her dower, She might, therefore, if she had survived her husband, have claimed her dower in all the other real estate of the testator, as the second wife has done. The devise to the complainant of land to the value of $1500, to be taken at the appraisal of men, means land which shall be of that value, over and above all charges, incumbrances, or claims thereon, which might render it less valuable to the owner thereof. He is therefore entitled to lands which are worth $1500, beyond any claim or right of dower therein ; and the other devisees were in the wrong in resisting the claims of the complainant as stated' in the bill.

*108There must be a decree declaring his rights accordingly. If the parties cannot agree upon the quantity of land to be set off to him to satisfy this provision of the will, it must be referred to a master residing in the county of Saratoga to designate three reputable freeholders of that county to set off to him lands to the value of SI500, beyond all legal or equitable claims and incumbrances thereon, out of the farm selected by him as that out of which his legacy was to be satisfied as mentioned in the bill. And the certificate of such appraisers, specifying the lands thus assigned to him, describing the same by metes and bounds, must be acknowledged or proved in the manner required by law for the proof or acknowledgment of deeds or conveyances, and recorded in the book of deeds in the clerk’s office of Saratoga county; and the complainant must thereupon immediately be let into the possession of the land thus assigned.

The complainant’s costs of this suit should be paid out of the property devised or bequeathed to the residuary legatees and devisees.