I concur in the opinion of Judge LEHMAN in so far as it holds that the legacy of *Page 242 $5,000 is not a charge upon, or payable out of, the real estate.
I dissent, however, from the conclusion that the widow is entitled to the $5,000 legacy given to her under the will of the testator. It is perfectly apparent that the testator never intended that his widow should have more than $5,000 in all. This intent is expressed in such a way that it cannot, it seems to me, be misunderstood. The bequest provided that she should have $5,000 and "all household furnishings and equipment including clothing and jewelry" but only conditionally and "in lieu and stead of any and all dower or claim of dower or any interest which she may have or claim to have in my estate and on condition that she accepts this bequest in full for every claim or demandagainst me or my estate, otherwise this bequest shall be void."
The executor of the testator's estate made a claim to the proceeds of an insurance policy of $5,000. The widow also made a claim to the same proceeds. The insurance company recognized that the proceeds were payable to one or the other and it thereupon paid the necessary amount into court. When, therefore, the widow undertook to litigate against the executor she was, in fact, making a claim against the testator's estate. Had the insurance company paid the proceeds to the executor and had the widow thereafter claimed such proceeds, can it be seriously questioned but what this would have been a claim against the testator's estate? Had the executor succeeded, after the money had been paid into court, no one, I take it, would then contend but what she had been making a claim against the estate. The litigation was not against the insurance company. The only issue was as to which one of the parties — the widow or the executor — was entitled to the proceeds of the policy. The insurance company recognized its liability and satisfied and discharged the same by paying the money into court. The litigation did involve a claim *Page 243 against the estate. If the widow had not insisted upon her claim to the proceeds, after the money had been paid into court, the proceeds would at once have been paid to the executor and would have become a part of the estate of the testator. She has, therefore, been paid all that the testator intended she should receive. To compel the estate to pay the bequest and to permit her to hold the proceeds of the insurance policy is to do precisely what the testator did not intend to do.
Entertaining these views, I am unable to concur to this extent in the opinion of Judge LEHMAN.
HISCOCK, Ch. J., CARDOZO, POUND and ANDREWS, JJ., concur with LEHMAN, J.; McLAUGHLIN, J., dissents in memorandum in which CRANE, J., concurs.
Ordered accordingly.