In re Hollmann

125 Misc. 790, 211 N.Y.S. 173, 1925 N.Y. Misc. LEXIS 901

• Court: New York Surrogate's Court
• Decided: February 11, 1925
• Status: Published

Opinion

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 contained 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.