De Graaf v. Cochrane

21 A.D. 381, 47 N.Y.S. 502

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1897
• Status: Published

Opinion

O’Brien, J.:

The single question presented is, as to whether the conveyance of the property in question, during the lifetime of the testator, and after the making of the will, relieves his estate from the payment of the $50,000 mortgage on the property specifically devised by his will to his wife. It is beyond question that what the testator intended to give her in lieu of dower, in addition to the personal property, was this real property, free and clear of all liens. To make the assurance doubly sure that she would have it after his death, he conveyed it to her during life. By such conveyance during life, which secured to her this real estate beyond perad venture, it cannot be assumed that the testator cut down or lessened the provision which by will. he intended for his wife. Concluding, therefore, as we must, that so much of the will as relates to the devise of the property is no longer operative, because the testator has, in that regard, executed his own will, there still remains the provision and direction that out of his estate there" should be paid all liens upon that property, and there is no dispute as to what those liens were at the time of the making of the will and when the property was conveyed to the wife, and at the testator’s death. It seems to be reasonably free from doubt, if we are to carry out what was the clearly expressed intention of the testator, that his wife was to get certain personal property and this real estate, free from all incumbrance, in lieu of dower; and to effectuate that it is necessary that the executors should pay that amount and thus carry out the testator’s intention.

I think the decision of the referee was right, and the judgment appealed from should be affirmed, with costs.

Van Brunt, P. J., Rumsey, Patterson and Parker, JJ., concurred.

Judgment affirmed, with costs.