Citations
- 96 N.Y. 499
Full opinion text
Earl, J.
John Bullard died in January, 1881, leaving a will dated February 4, 1876, and leaving a widow and next of kin, but no children. He devised to his wife, Jane E. Bullard, a valuable house in Brooklyn, and bequeathed to her household furniture, paintings, books, horses and carriages and $150,000 in money, which sum he directed his executors to pay within three years after his death at such times and in such amounts as they in their discretion should think proper, and until full payment to pay her semi-annual interest upon the sum unpaid to her, computed from the time of his death. He also directed that such legacy to his wife should take precedence in payment over all the other legacies given in his will; and he gave various other legacies, among which was a legacy of $25,000 to his brother William, and one of $2,000 to his cousin Ann Eliza Garnet. The residue of liis estate he disposed of as follows: Two-fifths thereof to his brother William, one-fifth thereof to each of his nephews, John E. and Lewis H. Bullard, and the remaining fifth thereof to his executors, upon trust to invest the same and receive and pay the income thereof to his wife during her life, and after her death to pay the principal thereof to his brother William and the two nephews, John E. and Lewis H., in equal shares. After the devises and bequests contained in the will, there was the following provision in the twenty-fourth paragraph thereof: “ It is my will, and I do hereby declare that the devises and bequests hereinbefore made, to and for the benefit of my beloved wife, Jane E. Bullard, are made and shall be accepted and received by her, in lien and bar of her dower, and of all claims she may have upon or against my estate as my widow.”
William Bullard and Ann Eliza Garnet both died before the testator, and it is conceded by all parties that the legacies to them lapsed, and that the share of William Bullard in the residue lapsed, and that as to such share the testator died intestate.
The widow accepted the provisions made for her in the will, but notwithstanding this her executors, the appellants, claim that they as such are entitled to one-half of the lapsed legacies under the statute of distributions; and the executors of the husband, the' respondents, claim that, by accepting the provisions made for her in the will, she was, under the twenty-fourth paragraph thereof, barred of any .further share in the estate; and so it has been held by the surrogate and Supreme Court.
The claim of the appellants is that the provision barring the widow was inserted in the will for the benefit of the other devisees and legatees, and that no one but such devisees and legatees can set up the bar against her. The claim of the respondents is that the bar was inserted in the will for the benefit of the other devisees and legatees not only, but in ease of the testator’s estate, the provision for the widow, in the mind of the testator, being sufficient and all she was to have out of his estate.
The learned counsel for the appellants, to support his contention, cites 2 Williams on Executors, 1063 ; 2 Jarman on Wills (5th Am. ed.), 35, 36 ; 2 Redfield on Wills, 747, 748, §§ 19, 20; and these text-writers sustain him. They all -lay down the rule substantially that a gift to a widow, in satisfaction of all claims on the testator’s estate, does not preclude her from claiming her share in the personalty under the statute of distributions in the event of a failure of a bequest of that property ; and they cite for the rule the case of Pickering v. Stamford (2 Ves. 272, 581; 3 id. 332,492). In that case a testator gave certain parts of his real and personal estate to his wife, declaring that the provision thus made for her was and should be in bar and full satisfaction of all dower, or thirds which she could have or claim “ in, out of, or to all or any part of his real and personal estate, or either of them.” Then after certain bequests to his next of kin, he gave the residue of his estate to his executors upon certain charitable trusts; and such gift of the residue was held, to be illegal, so that the testator, as to the residue, actually died intestate. The master of the rolls at first (2 Yes. 581) hel