In re Proving the Last Will & Testament of Vowers

LbaeNed, P. J.

(dissenting)

“ Dower ” is the interest for life which the widow has in one-third of her husband’s real estate. “ Distributive share ” means the share which a person takes in personal property, in case of intestacy. Mr. Vowers made a provision for his wife and then said: “This provision to be accepted by my wife in lieu of her dower right and distributive share in my estate. She to make her election whether she accepts this position in my will within sixty days,” etc. What did he mean that she should have, if she did not accept this provision ? Not simply dower, because he adds “ and distributive share in my estate.” We have no right to disregard these words as meaningless. They have a definite meaning, and in the absence of proof to the contrary, we must suppose that the testator used them with that meaning. Further, instead of leaving his widow the statutory time to elect whether she would take the provision in lieu of dower, he provided that she should make an election within sixty days whether she would take this provision in lieu of dower and distributive share. This speedier election was important, if not necessary, if she was in one event to have a distributive share of the personal estate. Because at the end of the year, the general legacies would be payable. And this requiring a speedy election is some indication of the testator’s intent that she would, if she chose, have a distributive share of the personal estate. Then he must have expected that, if she did not take his provision, she would have both dower and her distributive share. Either this was his view or else he used the words “ distributive share ” as synonymous with dower right.” If the testator had expressly said : “ If my wife does not accept this provision then I give her her dower right and distributive share in my estate,” there would' probably be no doubt that she would have taken a share in the personal estate as in intestacy.' (O'Hare v. Dover, 3 Abb. Dec., 407.) It seems to me that this is what he meant. There is no devise and bequest of the whole of his property to the nephew. The nephew is only given *421the rest and residue; that is, the rest and residue after the widow has made her election.

We have no proof as to surrounding circumstances, showing the amount of property and the like. The only fact that may be plainly inferred is that the deceased had no descendants. He, therefore, wished to provide for his widow first of all. He gave her a life estate in house and furniture and fifty dollars a year. But if she did not chose to take that, then she was to have her dower (which could not be taken from her without her consent), and that share of the personal estate which she would have had in case of intestacy. Very possibly the testator set the two things opposite each other in his mind, thus: Either the life estate in house and furniture, or dower in all the real estate. And either the fifty dollars annuity, or the distributive share of the personal. It is not a question as to the testator’s dying intestate m respect to any of his property. The only question is whether he does not fairly imply that, if she does not accept this provision, she is to have what would be her distributive share in case of intestacy. In other words, did he not mean that she might take the testamentary provision, or, if she preferred, she might take just what the law would have given her of real and personal, in case of intestacy. It is hardly necessary to refer to the principle that wills are to be construed favorably towards the widow of the deceased. I think the testator intended that the widow, if she chose, should have her distributive share. If such intent can be found in the will, there is a legacy by implication. Therefore, I think the decree should be reversed in this respect.

Decree affirmed, with costs against appellant.