Flynn v. McDermott

• Decision Date: 21 November 1905
• Citation: 183 N.Y. 62,75 N.E. 931
• Parties: FLYNN v. McDERMOTT.
• Court: New York Court of Appeals Court of Appeals

183 N.Y. 62

75 N.E. 931

FLYNN

v.McDERMOTT.

Court of Appeals of New York.

Nov. 21, 1905.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Paul V. Flynn, executor of Mary M. McDermott, against Michael F. McDermott, executor of John McDermott. From a judgment of the Appellate Division (89 N. Y. Supp. 506,92 N. Y. Supp. 1123,102 App. Div. 56) on an order affirming a judgment for plaintiff, entered on a decision of the court at Trial Term, defendant appeals. Affirmed.

Bertram L. Kraus and Henry B. Wesselman, for appellant.

Thomas F. Magner, for respondent.

BARTLETT, J.

This is an action against the estate of John McDermott, deceased, brought by the executor of the widow, Mary M. McDermott, to recover a legacy in her favor under her husband's will. John McDermott died on the 18th of March, 1902, leaving a last will and testament which was executed on June 19, 1900. The third and fourth subdivisions of the will read as follows: ‘Third. I give, devise, and bequeath to my beloved wife, Mary M. McDermott, the sum of nine thousand dollars in cash to be paid to her by my executor and trustee hereinafter named out of my estate within one year after my decease, with legal interest thereon, to be computed from the day of my death until such payment shall be made by my said executor and trustee to my said wife, Mary M. McDermott. Fourth. The above legacy of nine thousand dollars, and the one-half of said policy of insurance hereinbefore mentioned I hereby declare is given to my said wife in full satisfaction and for and in lieu of her dower or thirds which she can in anywise claim or demand or which the statutes of the state of New York give to her and which she might in any way claim out of my estate.’ The will of John McDermott was duly proved on the 26th of March, 1902. On the 12th of July, 1902, his widow, Mary M. McDermott, instituted an action in the Supreme Court to determine the validity of the probate of the will, which action was pending on the 11th of September, 1902, when said Mary M. McDermott died. The will of the widow was duly proved soon after her death. The death of the widow occurred within the statutory year allowed her for election to take the provisions of the will in lieu of dower, and without her having exercised the same.

Section 180 of the real property law (Laws 1896, p. 586, c. 547) reads as follows: ‘If real property is devised to a woman, or a pecuniary or other provision is made for her by will in lieu of her dower, she must make her election whether she will take the property so devised, or the provisions so made, or be endowed of the lands of her husband; but she is not entitled to both.’ It is provided in section 181, in substance, that, where a woman is entitled to an election, she is deemed to have elected to take under the provisions of the will, unless within one year after the death of her husband she enters upon the lands assigned to her for her dower, or commences an action for the same. This presumption does not apply in the present case, as the widow died within the year. After the expiration of the year from the death of John McDermott, due demand having been made by the executor under the will of the widow for payment of her legacy, this action was commenced to enforce the same.

The claim of the defendant appears to be inconsistent with the allegations of his answer, stating that the widow had elected to take her dower, which position seems to have been abandoned, and the charge now is that the widow died within one year without having made an election. This latter contention is in accordance with the allegation of the complaint, and the questions in this case are: (1) What is the effect of the widow having died within the year making no election? (2) What is the effect of the widow having begun an action in her lifetime to set aside the will on the ground that the same was not executed according to law and that her husband was of unsound mind and incapable of making...