In re Fitter

Ketcham, S.

The will under which the accountants were appointed, in its second paragraph, contains a devise of a certain house and premises to the wife for life, and a gift in trust of $8,000, to he invested and held for the benefit of the wife during her life. It is then provided that after the death of the wife the premises and the principal of the said sum of $8,000 are given to the testator’s children equally.

*401 The third paragraph is as follows: “ All the rest, residue and remainder of my estate, of whatever kind and nature and wherever situated, I do direct my Executors to divide into as many equal parts or shares as I may have children at the time of my death, and I give, devise and bequeath one of such equal parts or shares to each of my children, the children of any deceased child to take the share to which their parent would have been entitled if living; provided, however, that the shares of my daughter or daughters shall be held separately in trust for them by my Executors and invested and kept invested, and the net income derived therefrom paid over to them during their natural lives; and on their death the principal of their shares I direct to be divided among their children; and provided further that inasmuch as my son Clarence Krogmann has received seven hundred dollars more than my other children, I direct that that amount be deducted from any share to which he would otherwise be entitled.”

The will appoints executors, and then provides as follows: “ And I hereby authorize and empower (the executors) to sell and dispose of the whole or any part of my real estate, if, in their judgment, it shall appear to be for the best interests of my estate to do so, and to make, execute and deliver good and sufficient deeds of conveyance to the purchaser or purchasers thereof.”

The testator died seized of several parcels of land besides the premises mentioned in the second paragraph of his will.

It becomes necessary to determine whether the testator intended that his widow should have the benefit of the provisions in her favor contained in the will, in addition to her dower.

Where, in the absence of an express provision in the will, this question is provoked by a devise of lands in trust, the rule is that the dower is preserved unless there is an obvious incompatibility between the actual assignment of dower and the complete operation of the trust. It is held that the trust is not *402 repugnant to the assertion of dower, unless it is apparent that the trust requires the possession and control by the trustee 'of the entire lands involved; and the courts have generally looked to see whether, among the trust provisions, there was a direction that the trustees should perform specific duties with respect to the lands, which by their nature would require entry upon the premises and the complete and exclusive management thereof. Thus, the duty to make repairs and improvements, to insure buildings, to mortgage and to lease, or otherwise deal with the premises in a manner which would be impossible if there were an assignment of dower by metes and bounds, has been held to be controlling evidence of an intention to exclude the widow from any right or relation to the lands. (Matter of Gordon, 172 N. Y. 25 ; Matter of Zahrt, 94 id. 605; Tobias v. Ketchum, 32 id. 319; Matter of Gale, 83 Misc. Rep. 686 , and cases cited.)

In the case at bar no such indication appears. Here, nothing of the devise in trust will fail of effect if the right of dower be recognized and assigned. The operation of the trust, and the assertion of dower may coincide without offense to any purpose which the testator discloses.

In this view, the accountants have proceeded properly in their payments to the widow from the income of the lands which were the subject of the trust, and the objection in that behalf is overruled.

The objection to the renewal of the lease of which the decedent died possessed is overruled. It was within the duty of the-executors to avail themselves- of the privilege of renewal, not only as an incident to the exercise of the power given them to continue the testator’s business in the premises which he held under the lease, but generally as a prudent means of retaining the interest of the estate in the buildings erected upon the leased premises. The decree should conform to these views.

Decreed accordingly.