In re Bock

New York Supreme Court

In re Bock

125 Misc. 653, 211 N.Y.S. 621, 1925 N.Y. Misc. LEXIS 990

DecidedApril 14, 1925

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This text of 125 Misc. 653 (In re Bock) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Bock, 125 Misc. 653, 211 N.Y.S. 621, 1925 N.Y. Misc. LEXIS 990 (N.Y. Super. Ct. 1925).

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Opinion

Hagarty, J.:

The special guardian objects to the allowance by the trustees of dower in the share set apart for George Alter’s son, William Alter, to. William’s widow. Under the deed the trustees were directed to sell, lease or mortgage the real property therein granted and to pay the net income to the grantor during his lifetime, and upon his death to divide his estate into nine equal shares and “ to receive the rents and profits of the real property and the net income of the personal property (resulting from the sale of any real property) of which each of the remaining shares may consist, and after paying the taxes and other lawful charges thereon, pay the net rents-, profits and income as follows: Of one share during the life of William Alter, a son of said party of the first part, one-half to said William Alter, and the other half to Caroline Alter, his wife, for the support of then’ daughter Anna * * *; and upon the death of said William to convey and pay the said share to the person or persons who would under the laws of the State of New York take his real property in the same proportions as if he had died [654]*654intestate seized of said share.” William Alter left him surviving his wife Caroline, and his daughter Anna. Had the trust deed provided merely that the disposition should be governed by the law of descent, the rule laid down in the case of Luce v. Dunham (69 N. Y. 36) would no doubt control. The right to dower, however, is conferred by statute (Real Prop. Law, § 190), and provides that “ a widow shall 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.” It must, therefore, be assumed that the grantor had this in mind as a part of the law which was to determine the person or persons who were to “ take ” upon William’s death. The use of the word “ take ” by the grantor is particularly apt, since Bouvier in his definition of the word says that it may signify “ to be entitled to.” Had William died intestate, seized of the share, it would have descended to his daughter Anna, subject to the widow’s right of dower. The special guardian’s objection is overruled. I will hear counsel at a time convenient to them on the question of allowances and the form of the decree.

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Hagarty, J.:

The special guardian objects to the allowance by the trustees of dower in the share set apart for George Alter’s son, William Alter, to. William’s widow. Under the deed the trustees were directed to sell, lease or mortgage the real property therein granted and to pay the net income to the grantor during his lifetime, and upon his death to divide his estate into nine equal shares and “ to receive the rents and profits of the real property and the net income of the personal property (resulting from the sale of any real property) of which each of the remaining shares may consist, and after paying the taxes and other lawful charges thereon, pay the net rents-, profits and income as follows: Of one share during the life of William Alter, a son of said party of the first part, one-half to said William Alter, and the other half to Caroline Alter, his wife, for the support of then’ daughter Anna * * *; and upon the death of said William to convey and pay the said share to the person or persons who would under the laws of the State of New York take his real property in the same proportions as if he had died [654]*654intestate seized of said share.” William Alter left him surviving his wife Caroline, and his daughter Anna. Had the trust deed provided merely that the disposition should be governed by the law of descent, the rule laid down in the case of Luce v. Dunham (69 N. Y. 36) would no doubt control. The right to dower, however, is conferred by statute (Real Prop. Law, § 190), and provides that “ a widow shall 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.” It must, therefore, be assumed that the grantor had this in mind as a part of the law which was to determine the person or persons who were to “ take ” upon William’s death. The use of the word “ take ” by the grantor is particularly apt, since Bouvier in his definition of the word says that it may signify “ to be entitled to.” Had William died intestate, seized of the share, it would have descended to his daughter Anna, subject to the widow’s right of dower. The special guardian’s objection is overruled. I will hear counsel at a time convenient to them on the question of allowances and the form of the decree.

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Bluebook (online)

125 Misc. 653, 211 N.Y.S. 621, 1925 N.Y. Misc. LEXIS 990, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bock-nysupct-1925.

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