Asch v. Asch

• Decision Date: 16 April 1889
• Citation: 21 N.E. 70,113 N.Y. 232
• Parties: ASCH et al. v. ASCH.
• Court: New York Court of Appeals Court of Appeals

113 N.Y. 232

21 N.E. 70

ASCH et al.

v.ASCH.¹

Court of Appeals of New York.

April 16, 1889.

Appeal from supreme court, general term, Second department.

Action by Julius T Asch and others, executors of Jacob Asch, deceased, against Estelle Asch and others, to construe a will. From a judgment of the general term affirming a judgment of the special term for plaintiffs the widow appeals.

Joseph Fettretch, for appellant.

Simpson & Werner, for respondents.

RUGER, C. J.

This is an action between the several executors of the will of Jacob Asch and his widow and legatees to obtain a construction thereof by the court. The will, in substance, devised and bequeathed all of his real and personal property, after the payment of debts and funeral expenses, to his executors in trust to invest and keep invested the proceeds thereof in United States bonds, or in bonds of the state or city of New York, or in bonds secured by first mortgage on real estate in the city of New York, and to pay the interest or income of a certain small part thereof, determinable by the gross value of his estate, to his mother during her life, and to pay to his widow, during her life, the interest and income upon all the rest, residue, and remainder of his estate, including that bequeathed to his mother, upon her death, and after the death of his wife remainder over to his surviving children, share and share alike. At the testator's death his wife and two children survived him. One of the children died after the testator, and before the commencement of this action. The widow now claims the benefit of the provision made for her by the will, and also dower in the real estate owned by the testator at his death. She also claims that upon the death of her daughter she became entitled, as next of kin, to one-half of the remainder provided for each child, and to an absolute interest in possession of one-quarter of the estate by reason of an alleged merger of her legal and equitable interest therein. These questions are to be determined from the intentions of the testator as indicated by the language of the will and the circumstances surrounding its execution. The general scheme of the will seems to be antagonistic to the claims of the widow. The creation of a trust-estate mainly for the benefit of his wife, which was to endure so long as she lived, is inconsistent with an implied right on her part to manage and control any part of the property devised. The testator excluded his wife from the control of his personal estate, and the reason influencing this provision would seem to indicate a similar intention in regard to his real estate. The circumstance that the testator substantially made his wife the sole beneficiary of the trust, thus giving her the income of all of his estate, gives force to the implication that he did not suppose she would also take dower. That the testator intended the conversion of all of his property into money, and its investment in interest-bearing securities, which should remain under the exclusive management and control of his trustees during the life of the widow, is clearly to be implied from the purposes expressed in the will. Those purposes can be effected only in the mode directed, and the legal estate given to the trustees must necessarily continue so long as the objects of the trust remain unperformed. The necessity of a conversion to accomplish other purposes is equivalent to an imperative direction to convert and effect an equitable conversion of the property. Hobson v. Hale, 95 N. Y. 588;Chamberlain v. Taylor, 105 N. Y. 185, 11 N. E. Rep. 625. This conversion was essential in order to determine the amount of income to which the testator's wife and mother should be respectively entitled, and is inconsistent with the existence of a life-estate in any part of the real property in the wife. The absolute power of sale conferred upon the executors was evidently not intended to be limited or impaired by an inability on their part to convey a good title to the whole of such real estate, and the purposes of the will required such sale to be made unhampered by obstructions which might be interposed by conflicting interests in the property.

Although there is no express language providing that the bequest to the widow shall be in lieu of dower, yet, where there is a manifest incompatibility between such provision and dower, it is held that she cannot take...