In re Proving the Last Will & Testament of Vowers

Bogles, J.:

By the will the testator gave his wife, the appellant, the use of his house and furniture therein for life and an annuity of fifty dollars; such provision to be accepted by her “ in lieu of her dower right and distributive share in my estate ; she to make her election whether she accepts this provision in my will within sixty days from the time of proving the same.”

It is claimed by the appellant that the widow was given a right of election, either to accept the provision for her in the will, or to refuse it and take as if her husband had died intestate. The widow bases her claim on the will, that is, that she is (not in terms, but by implication) thereby given a right of election either to cake the use of the house and furniture and the annuity, or to have her dower and a widow’s distributive share in the personalty; that such choice is given her by the will itself. We do not think the language employed will bear this construction. There is no right of election or choice given to the widow to have one thing or the other, certainly not in terms. This latter is conceded. Nor is a right of election or choice given by fair implication. The gift of the use of the house and furniture, with the annuity, is absolute in terms. The right of election to accept or reject tins provision for her in the will and to have dower instead, is one given by statute, and this, of course, the testator understood. So he then added, in effect, that he made the provision for his wife as a • substitute for what she would have been entitled to had he died intestate, recognizing her right of election between the provision in the will and her right of dower secured to her by the statute. If she elected to take dower, the provision in the will, declared to be in lieu of dower, would go for nothing and she could have only what she would be entitled to by law, in disregard of the will, whether by implication or otherwise. This would follow, inasmuch as the provision rejected was entire, embracing all that the will gave her. There is here no gift of dower and distributive share in the estate in lieu of some other provision at her election.

The language but declares the intention of the testator to the effect that the provision, if accepted, would be in full and bar all claim of widow to his property and estate. If not accepted, nothing would then be given her by the will and she could take only, despite the will, that is, her dower protected to her by the statute. This conclusion is, as'we think, supported by the reasoning of the court in O'Hara v. Dever (46 Barb. 609; affirmed in the Court of Appeals, 2 Keyes, 558). A bequest by inference or implication, will be held to exist only when it is within the obvious intention of the testator and has failed to receive explicit declaration in the will. It will not be held to exist in a case of mere slight probability, but only when the language employed and all the circumstances taken together leave no doubt in the mind. (2 Redf. on Wills, chap. 1, § 14.)

Our conclusion is that the casé in hand does not show a bequest to the widow by implication, hence the decree appealed from should be affirmed with costs of appeal against the appellant.