In re the Estate of Grotrian

This is one of the undecided matters that was before Surrogate Arnold, and that has now been submitted to me for final disposition. The testator directed that his executrix should set apart and apply out of the income of his estate the sum of $325 every three months for the benefit of his wife, for her support and maintenance. After the death of big wife, the residuary estate, including real property, is given to the executrix in trust to sell and divide the same among certain nieces and nephews. The executrix is directed to take charge of the property, collect the rents thereof, and, after the death of the testator’s wife, to dispose of the same as above mentioned. In a proceeding to sell decedent’s real estate for the payment of his debts, the referee has found that under the terms of the will the widow is entitled both to the specific bequest of income and to dower, and that she is not placed to her election. The exceptions to this finding raise the only important question in this matter. The law favors dower. The cases are clear, that in the absence of express words in a will, the implication that any given provision is made in lieu of dower must be strongly patent. Unless the vesting of dower be absolutely incompatible with and repugnant to the provisions of the will, the widow should not he deprived thereof, whatever the other pecuniary bequests given her may he. Closs v. Eldert, 30 App. Div. 338; Kimbel v. Kimbel, 14 id. 570; Konvalinka v. Schle*410gel, 104 N. Y. 125. In my opinion, none of the provisions of the will herein presents anything that is irreconcilable with the' vesting of dower, and, hence, under the rule stated, I hold that the finding made by the referee in this regard is proper. Under the third clause of the will a general legacy of $1,000 is given to a niece of the testator. The referee finds that this legácy, in the absence of sufficient personalty, must be paid from the real estate. I cannot concur in this conclusion. Whether a legacy is chargeable on land is always a question of the testator’s intention. McCorn v. McCorn, 100 N. Y. 511. There is nothing to show that the decedent desired this result to •be worked with reference to this legacy, and, hence, it is only payable from the personal property of the estate. The exception to the finding in this matter is sustained. There is no merit in the contention that this court has no jurisdiction to entertain the proceeding herein, for the reason that the preliminary direction of the testator that all of his debts be paid charges the payment of the debts upon the realty. That is not the effect of such a direction. Cunningham v. Parker, 146 N. Y. 29, 33; Matter of Bingham, 127 id. 296. Excepting as above stated, the exceptions filed are overruled, and the report of the referee will, in all other respects, be confirmed.

Exceptions, except as above stated, overruled and referee’s report confirmed.