#### John Konvalinka *et al.,*Ex’rs, etc., of George Schlegel, deceased, Applt’s, *v.*George Schlegel, Impleaded with others, Appl’ts., and Maria Schlegel, widow, Resp’t.1

*(Court of Appeals,*

*Filed January*18, 1887.)

1. Will — Construction — Dower—When widow entitled to.

Where the will of testator after directing the payment of his debts and funeral expenses and the disposition of his household furniture proceeded as follows: “All the rest residue and remainder of my estate, property and effects of every nature, kind and description, I give, devise and bequeath to my executors and executrix hereinafter named and I authorize and direct them to sell and dispose of the same at such time and on such terms as to them shall seem best, and to divide the proceeds thereof equally among my wife and children, share and share alike ” *Held,*that the widow was not put to her election but was entitled to her dower and her share under the will.

2. Same — Election — When widow put to hee election.

Dower is never excluded by a provision for a wife except by express words or by necessary implication. When thei'e are no express words, there must be upon the face of the will a demonstration of intention of the testator, that the widow shall not take both dower and the provision. The only sufficient and adequate demonstration which in the absence of express words will put the widow to her election is a clear incompatibility arising on the face of the will between a claim of dower and a claim to the benefit given by the will.

3. Same — Power in trust to sell land.

*Held,*that the devise to the executors was void as a trust but valid as a power in trust for sale of the land and a division of the proceeds. That powers of or in trust for sale are not inconsistent with the widow’s right to dower, and that there is no legal difficulty in the trustee executing the power of sale but the sale will be subject to the widow’s right of dower.

4. Same — General rule as to devise of lands on trust to sell, etc.

A devise of lands *eo nomine*upon the trust for sale or a devise of lands *eo nomine*to a devisee beneficially does not per se express an intention to devise the lands otherwise than subject to its legal incidents, dower included.

5. Same — Meaning of a devise of “ all his property.”

Where the testator gives “all his property” to the trustee he cannot ba assumed to give the widow’s dower which he has not, to said trustee.

Appeal from a judgment of the supreme court, general term, second department, affirming a judgment in favor of the defendant, Maria Schlegel, widow of George Schlegel, entered at a-special term, held in King’s county, upon a trial of the action brought to obtain a judicial construction of the will of George Schlegel, deceased.

*John W. Konvalinha,*for plffs, appl’ts; *Iienry Me Closkey,*for infant deft’s ; *W. JE. Cfrover,*for adult children, applt’s; *Greorge Bliss,*for resp’t.

1

. Affirming 39 Hun, 451.

Andrews, J.

The question is whether the widow of the testator is put up to her election between dower and the provision in the will. The estate of the testator consisted of both real and personal property. The will, after directing the payment of the testator’s debts and funeral expenses, and after giving to his wife the bedroom furniture in his dwelling-house, and to his children the rest of the furniture therein, proceeds as follows: “All the rest, residue and remainder of my estate, *563property and effects of every nature, kind and description, I give, devise and bequeath to my executors and executrix hereinafter named, and I authorize and direct them to sell and dispose of the same at su<?h time and on such terms as to them shall seem best, and to divide the proceeds thereof equally among my wife and children, share and share alike.”

There can be no controversy as to the general principles governing the question of election between dower and a provision for the widow in the will. Dower is favored. It is never excluded by a provision for a wife, except by express words or by neces.sary implication. Where there are no express words, there must be upon the face of the will a demonstration of the intention of the testator, that the widow shall not take both dower and the provision. The will furnishes this demonstration only when it clearly appears without ambiguity or doubt, that, to permit the widow to claim both dower and the provision would interfere Avith the other dispositions and disturb the scheme of the testator as manifested by his will. The intention of the testator to put the wido w to an election cannot be inferred from the extent of the provision, or because she is devisee under the will for life or in fee, or because it may seem to the court that to permit the Avidowto claim both the provision and dower would be unjust as a family arrangement, or even because it may be inferred or believed, in view of all the circumstances, that if the attention of the testator had been drawn to the subject, he would have expressly excluded dower. We repeat, the only sufficient and adequate demonstration which, in the absence of express words, will put the widow to her election, is a clear incompatibility arising on the face of the will, between a claim of dower and a claim to the benefit given by the will. We cite a few of the cases in this state, showing the general principle and the wide range of application. *Adsit*v. *Adsit.*2 Johns, Ch. 452; *Sanford*v. *Jackson,*10 Paige, 266: *Church*v. *Bull,*2 Den., 430; *Lewis*v. *Smith,*9 N. Y. 502; *Fuller*v. *Yates,*8 Paige, 325; *Havens*v. *Havens,*7 Sandf., Ch. 331; *Wood*v. *Wood,*5 Paige, 599.

In view of these settled rules, Ave think the widow in this case was not put to her election. The devise to the executors was void as a trust, but valid as a power in trust, for the sale of the lands and a division of the proceeds, and the iands descended to the heirs of the testator, subject to the execution of the power. 1 Rev. Stat. 729, § 56; *Cooke v. Platt,*98 N. Y. 35. It is strenuously urged that the power of sale being peremptory, it worked an equitable conversion of the land into personalty, as of the time of the testator’s death, and created a trust in the executors in the proceeds for the purpose of distribution, which trust, it is alleged, is inconsistent with a claim of dower. The doctrine of equitable conversion, as the phrase implies, is a fiction of equity which is frequently applied to solve questions as to the validity *564of trusts ; to determine the legal character of the interests of beneficiaries ; the devolution of property as between real and. personal representatives, and for other purposes. It seems to be supposed that there is a necessary repugnancy between the existence of a trust in real property created by a will, and an outstanding dower interest of a widow in the trust property. We perceive no foundation for this contention. If the purposes of a trust,, as declared, require that the entire title, free from the dower interest of the widow, should be vested in the trustees in order to effectuate the purposes of the testator in creating it, a clear case for an election is presented. But the mere creation of a trust for the sale of real property, and its distribution, is not inconsistent, with the existence of a dower interest in the same property. There is no legal difficulty in the trustee executing the power of sale, but the sale will necessarily be subject to the widow’s-right of dower, as it would be subject to any outstanding interest in a third person, paramount to that of the trustee.

In the cases of *Savage*v. *Burnham,*17 N. Y., 577, and *Tobias*v. *Ketcham,*32 id. 327, the widow was put to her election, not because the vesting of the title in trustees was *per se*inconsistent, with a claim for dower, but for the reason that the will made a disposition of the income, and contained other provisions which would be in part defeated if dower was insisted upon. There is language in the latter case, which, disconnected with the context, may give color to the contention of the appellant. But it is the principle upon which adjudged cases proceed which is mainly to be looked to, because a correct principle is sometimes misapplied. There is, however, no ground for misapprehension of the meaning of the learned judge, in that case, interpreting his language with reference to facts then under consideration.

It has frequently been declared that powers of or in trust for sale are not inconsistent with the widow’s right or dower. *Gibson*v. *Gibson,*17 Eng. Law and Eq., 349; *Bending*v. *Bending,*3 Kay and J., *257; Adsit*v. *Adsit, supra; In re Fraser,*92 N. Y., 239. And it was held in *Wood*v. *Wood, 5*Paige, 596, that the widow was not put to her election, where the testator devised all his property to trustees, with a peremptory power of sale, and directed the payment to the widow of an annuity out of the converted fund. The same conclusion was reached, under very similar circumstances, in *Fuller*v. *Yates,*8 Paige, 325; and *In re Frazer, supra,*the widow’s dower was held not to be-excluded by a provision in the will, although as to a portion of the realty the power of sale given to the executors was peremptory.

The general doctrine is very clearly stated by the vice-chancellor in *Ellis*v. *Lewis,*3 Hare, 310; “ I take the law to be clearly settled at this day that a devise of lands *eo nominee*upon trusts for sale, or a devise of lands *eo nominee*to a devisee beneficially, does not, *per se,*express an intention to devise the lands *565otherwise than subject to its legal incidents, dower included.” This remark of the vice-chancellor also answers the claim that the testator, when he described as the subject of the dower “ all the rest, residue, and remainder of *my*estate,” meant the entire title, or the estate as enjoyed by him. A similar argument was answered by Lord Thurloav in *Foster*v. Cooke, 3 Brown, Ch. 347. “ Because,” he said, “ the testator gives all his property to the trustees, I am to gather, from his having given all he has, that he has given that which he has not.”

The argument that the testator intended equality of division between his wife and children is also answered by the same consideration. The proceeds of the testator’s estate were by the will to be equally distributed. It left untouched the dower of the widow, which he could not sell or authorize to be sold, and which was a legal right not derived from him, and paramount to all others. It may be conjectured, perhaps reasonably inferred, that the testator really intended the provision for his wife to be exclusive of any other interest, but so it is not Avritten in the Avill, and Ave are not permitted to yield any force to the suggestion. It is a question of legal interpretation, which has been settled.

The judgment should therefore be affirmed.

All concur.