Caroline M. Conner and Others, Respondents, v. Ann E. Watson, as Executrix, etc., of Eliza S. Conner, Deceased, and Others, Respondents; Henrietta J. Conner, Appellant

Caroline M. Conner and Others, Respondents, v. Ann E. Watson, as Executrix, etc., of Eliza S. Conner, Deceased, and Others, Respondents; Henrietta J. Conner, Appellant. Bower — election by the widow, when not required—.void trust good as a power in trust —■ when a sale under such power is subject to the widow’s dower — equality of shares under 2 JR. S. chap. 1, tit. 2, § 98. In an action brought to make partition of certain premises it appeared that James M. O’Conner was, at the time of his death, the owner of an undivided interest in the premises; that he left him surviving his widow and also several children, and left a will by which he directed his executors to distribute and apportion to his widow and children his estate in such a manner and at such times as should in their judgment be for the best interest of his widow and children, and gave such executors full power to sell as much of his real and personal property as they should deem best, and to invest and distribute the proceeds of such sales as they deemed best for the interest of all. The widow accepted the provisions for her benefit made in the will, and also claimed dower in the real estate sought to be partitioned. Held, that the widow was not put to her election, but was entitled to her dower, in addition to the provisions made for her in the will; That, subject to the widow’s dower, the widow and children were each entitled under the will to an equal proportion of the property by virtue of the provisions of the Revised Statutes (R. S. pt. 2, chap. 1, tit. 2, § 98), which enact that where a disposition under a power is directed to be made to or between several persons, without any specification of the share or sum to be allotted to each, all the persons designated shall be entitled to equal portions; That the devise to the executors was void as a trust, but valid as a power in trust. ■ that the lands descended to the heirs subject to the execution of the power, which was not inconsistent with the continued existence of the dower interest of the widow, and that any sale under the power would be subject to that interest Appeal by the defendant, Henrietta J. Conner, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 16th day of August, 1895, upon the report of a referee, in so far as said judgment fails to order, adjudge and decree that said defendant, Henrietta J. Conner, being the widow of James M. Conner, deceased, is entitled to dower in the premises mentioned and described in the ninth paragraph of said judgment, and in so far as it fails to order, adjudge and decree that said referee inquire into the present value of said right of dower of said defendant, Henrietta J. Conner, according to the principles of law applicable to annuities and survivorships. The appellant’s right to dower in some portions of the real estate sought to be partitioned is not adjudged and of this she complains. James M. Conner at the time of his death was the owner of an undivided interest in the real estate. ITe left the appellant, his widow and several children, and he left a will wherein he instructed his executors to distribute and apportion to his widow and children, his estate in such a manner and at such times as should in their judgment be for the best interest of his widow and children, and gave such executors full power to sell as much of his real and personal property as they should deem best, and to invest or distribute the proceeds of such sales as they deemed best for the interest of all. The appellant accepted the provisions of the will made for her benefit and claims she is also entitled to dower in the real estate sought to be partitioned. Glarence D. W. Rogers, for the appellant. [MAJORITY — Williams, J.:] Williams, J.: Huder the will the widow and children were entitled to an equal proportion of the property (R. S. part 2, chap. 1, tit. 2, § 98 [1 R. S. 731]), which provides that where a disposition under a power is directed to be made to or between several persons, without any specification of the share or sum to be allotted to each, all the persons designated shall be entitled to equal portions. Such being the construction of the will, the question raised here is settled by the authority of Konvalinka v. Schlegel (104 N. Y. 125), and the cases therein referred to. In that case the will, after providing for the payment of debts and some specific legacies, gave the residue of the estate to the execu tors to sell and dispose of the same and divide the proceeds equally between the widow and children, share and share alike. It was held that the widow was not put to her election, but was entitled to dower in addition to the provision made for her in the will; that the devise to the executors was void as a trust, but valid as a power in trust, and the lands descended to the heirs subject to the execution of the power, and that the execution of such power was not inconsistent with the dower interest, but the sale would be subject thereto. The appellant here is clearly entitled to dower as claimed by her, and provision should be made for it in the interlocutory judgment appealed from. The judgment should be modified accordingly, and as modified affirmed, with costs to appellant from the fund out of which dower is payable. Van Brunt, P. J., Barrett and Patterson, JJ., concurred. Judgment modified as directed in opinion and affirmed as modified, with costs to appellant from the fund out of which dower is payable.