Brown v. Brown

117 A.D. 199, 102 N.Y.S. 291, 1907 N.Y. App. Div. LEXIS 221

Opinions

Lambert, J.:

Paul S. Brown died on the 30th day of August, 1901, intestate as to the property involved in this action. On the 10th day of July 1901, Mr. Brown entered into an agreement with the defendant - Augusta A. Brown, which was followed by a. ceremonial marriage on the twenty-fourth day of August in the same year. He was at that time about ninety years of age, in the full possession of his faculties, so far as appears from the evidence in this case, and on the date of the agreement he wrote out and the parties subscribed die following contract':

“ This agreement made and entered' into by and between Paul S. Brown of the town of Bloomfield, State of Hew Jersey, party of the first part, and Augusta Andree, of the City of Hew York, * "x" *" party of the second part, Witnesseth: That foirand in consideration of this agreement and certain sums of money to be paid to her by the said party of the first part , and other valuable considerations, the said party of the second part promises to marry the said party of the first part some day before July 15, 1901, and by mutual agreement 'become legal husband and wife. Certified by their signatures and seals and by two disinterested witnesses to same.

“ The said party of the second part;

* in case of the death of said Paul S. Brown within- three years the said Augusta Andree shall be paid by the executors of the last will and testament of said. Paul S. Brown, three thousand Swedish crowns, but if he lives five years from the date of this agreement, she, the said'Augusta Andree, * * * shall- be paid five thousand Swedish crowns, or its equivalent in American money, and after his death she is to be paid forty dollars^ per month for her support until the division of tire estate, when she is to be paid in full as her ¡widow’s dower in full.”

What is the reasonable construction of this language used by Paul S. Brown in defining the rights of this woman, who at the age of thirty-seven years was about to enter into the marriage relation with him ? Clearly Mr. Brown used language with a fair degree of intelligence in defining his purpose. He evidently understood that at his age he had not many years to live, while his wife could reasonably expect to survive him for a number of years. Augusta A. Brown was comparatively young; she was a trained nurse and she was relinquishing her occupation for the purpose of caring for this old man, and she evidently demanded something more than the rights of a wife in the property. It was agreed, therefore, that if Mr. Brown died within a period of three years the said defendant to be paid 3,000 Swedish crowns, equivalent to $810. But if he lived for five years, she was to be paid 5,000 Swedish crowns, “ and after his death she is to be paid forty dollars per month for her support until the division of the estate, when she is to be paid- in full as her widow’s dower, in full.” That is, contingent upon the length of life of Mr. Brown, his executors were to pay her 3,000 or 5,000 Swedish crowns out of his property, the same as they would be called upon to pay or discharge any other indebtedness. In addition to this they were to pay to the said defendant a fixed sum per month for her support during the time that the estate was held by the executors, and then “ she is to be paid in full as her widow’s dower in full.” There is' no suggestion here that these several payments, or any of them, are in lieu of dower, nor is there any inconsistency between such payments and her right of dower. The parties understood that the widow would have dower - rights; they contracted with reference to such rights, and they did not,, in express language, nor by necessary implication, exclude her from such rights. On the contrary, the contract provided for certain definite payments under agreed conditions, and then, upon the division of the estate she was to be “ paid in full as her widow’s'dower in full.”

The statute provides- (Real Prop. Law [Laws of 1896, chap. 547J, § 178) that “ any pecuniary provision, made for the benefit of an intended wife and in lieu of dower, if assented to by her * * *, bars her right or claim of dower in all the lands of her husband,” but it must be made in lieu of dower; the parties have a right to provide for more than the dower, 'and this, it seems to ns, has been done in the contract under consideration. At least there is no language which compels the conclusion that it was the intention of the parties that the said defendant should be entitled to less than she would have been entitled to without ’ the contract. Dower is favored by the law, and while the right to both dower and the benefit of a testamentary provision must yield to the intent of the parties where such intent is stated or clearly implied, if there is reasonable doubt, the widow takes both (Matter of Gorden, 172 N. Y. 25, 28), and it cannot be said, in the case- now before, us, that there is any lack of reasonable doubt. Hr. Brown drew this contract;■ the language was of "his own choosing, and it is quite as consistent with- reason, in view of the circumstances, that he intended 'that the said defendant should have more than her dower rights, as it is to hold that there was an intention to limit her to the comparatively small amount which she would realize in the event of Mr. Brown’s death within a period of three to five years. The court in Matter of Gorden (supra) quote the rule that “ where there is ño direct expression of intention that the pro- • vision" shall be in lien of dower, the question always is whether the will contains, any provision inconsistent-With the- assertion of a right to demand a ..third of the lands, to be set out by metes and bounds,” and if this rule is applied to the contract before us, and its language is given its most obvious meaning, the defendant was entitled to succeed in her contention.

The learned court below.finds it necessary to read into the language used by Mr. Brown a word of extensive meaning in order to reach "the result which we are called upon to review, and. we do not think the case is one where we are justified in supplying language. The words are not merely those of Mr."Brown, acting as a testator ; they are the words of a mutual contract — words selected by Mr. Brown—ánd "if he failed to use language Which will deprive the defendant of her dower rights, his heirs cannot be aided by the court. Under the statute the defendant is entitled to “ be endowed of the third part of all the lands whereof her husband was seized of an "estate of inheritance, at any time during the' marriage.” (Real.Prop. Law, § 170.) This is the lawful right1 of this defendant unless the right has been taken from her by this contract, and we have no authority to add anything to the language which the contracting parties have used to" bring about such á result. She had a- right to refuse to. marry Mr. Brown and to accept merely the rights of his widow ; she had a right to stipulate for something more, and a fair construction of the language chosen by Mr. Brown to express the agreement with this defendant does not justify holding that it was intended that the rights of the defendant should be cut down, but rather enlarged. We find nothing to warrant holding that the specific payments provided for out of the estate of Mr. Brown were intended to be in' lieu of dower.

The judgment should be modified by providing that the widow shall be entitled to her dower right in the estate in addition to the provisions of the contract. Costs of this appeal to the defendant Augusta A. Brown. The order to be settled on notice.

McLaughlin, J., concurred; Patterson, P. J., and Houghton, J., dissented.

So in record.— [Rep.