In re Hollmann , 125 Misc. 790 ( 1925 )


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  • Wingate, S.:

    Under paragraph second ” of decedent’s will there is devised to his widow a life estate in his real and personal property, to which is added a power of disposition in her lifetime of his personal property. (Leggett v. Firth, 132 N. Y. 7; Seaward v. Davis, 198 id. 415; Bavmgras v. Baumgras, 5 Misc. 8; Thomas v. Wolford, 49 Hun, 145; Kendall v. Case, 84 id. 124; Mitchell v. Van Allen, 75 App. Div. 297; Matter of Hart, 122 Misc. 124.)

    The death of Edward Hollmann, unmarried, during the lifetime of the decedent has resulted in intestacy as to the one-fifth of the remainder in the residuary estate designed for him. (Wright v. Wright, 225 N. Y. 329, and cases cited at p. 341; Matter of Barrett, 132 App. Div. 134.) The gift was intended for the named children of the decedent as tenants in common, and not to them as a class.

    There is no language in the will, which, by expression or implication, requires the widow to elect between dower and the provisions *791contained in the will for her benefit. She is, therefore, entitled to both. (Konvalinka v. Schlegel, 104 N. Y. 125; Horstmann v. Flege, 172 id. 381; Matter of Ellinger, 120 Misc. 276, and cases cited.) Let a decree be presented accordingly.

Document Info

Citation Numbers: 125 Misc. 790

Judges: Wingate

Filed Date: 2/11/1925

Precedential Status: Precedential

Modified Date: 2/5/2022