Haack (Haacki), Henry A., William c Conover, Red Hook, Brooklyn - liquor
Source: 1870 Brooklyn directory - liquor dealers in Red Hook
Under the heading LIQUORS (SEE ALSO ALE AND PORTER)
Other possible spellings: Haak, Haake.
1869 directory Haack, Henry A liguors, Williams c Conover. 1873 and later 63 Union Street.
1873 Union and Van Brunt lager beer.
Not in 1870 census.
Henry Haack was born in Germany circa 1838. In 1870 he married Wilhelmina (Mina) Ropke, born circa 1851, the
eldest daughter of
William Ropke a Brooklyn liquor dealer. See Ropke
The had no children.
Henry Haack died in 1883. He left a widow, no children.
His mother, Catherine M Haack was still alive,
as were a brother
Diedrick W. Hasck and two sisters, Catherine Maria Oest, a widow, and
Elise M Wilhelmina, wife of Heinrich Hopcke,
all still residing in Germany.
In his will dated June 1883, Henry Haack left: His wife a property on Mary Ave,
Brooklyn, and $10,000 in cash, "in lieu of dower", his nephew William Haack
his gold watch and chain and $4,000, his niece Wilhelmina Oest $4,000, the
rest of his estate to his sisters, Wilhelmina Hopke and Mary Oest and his brother,
Diedrick Haack, share and share alike. His personal property was valued at $19,739.29,
in addition to the $10,000
given his wife and real property in Brooklyn and Manhattan.
After his death his widow, Mina Ropke Haack contested his will.
Wilhelmia Haack - William and John Ropke and other
JOHN WEICKEN and LOUIS OTTEN as Executors under the last Will
and Testament of Wilhelmina Haack,
deceased, Helena M. Steneck, wife
of John Steneck, and the said John
Steneck, Annie M. Meyer, wife of
Edward Meyer, and the said Edward
Meyer, John Ropke, Wilhelmina
Ropke, Mary Oest, and Diedrik
In this action, tried before the Court, without a jury,
I make the following decisions:
I find as matters of fact,:
And as Conclusions of Law from the above facts, the Court decides as follows:
- That plaintiff is a daughter of the late William Ropke,
who departed this life at the City of Brooklyn, in this State,
prior to August 19th, 1863, leaving him surviving, Anna Margaretha
Ropke, his widow, and the plaintiff, Wilhelmina Haack, and the defendants,
Helena M. Steneck, Anna M. Meyer and John Ropke, his only children
all of whom are now living and of full age.
- That prior to the death of said William Ropke, he duly made and
executed a last will and testament, which was duly admitted to probate by
the Surrogate of Kings County, on or about August 19, 1803, and recorded in
said Surrogate's office in Book 27 of Wills, page 182, a copy of which
will is annexed to the complaint and marked Exhibit, No. 1, and made a
- That after the death of said William Ropke,his widow
re-married and accepted the provisions
of said will as to herself.
- That upon the re-marriage of the said widow, and her
acceptance of the provisions in her favor as contained in the
said last will and testament of the said William Ropke, the
residuary real estate of the said William Ropke, in pursuance of
the terms of his said last will and testament, became vested in his
said four children as tenants in common in fee simple, each of
the said children being seized and entitled to one equal
undivided one-fourth part thereof.
- That at the time last mentioned, the said residuary real
estate consisted of lands and tenements situated partly in the
City of New York and partly
in the City of Brooklyn.
- That the part of said residuary real estate which
is situated in the City of New York is bounded and described as follows:
"All that certain lot, piece or parcel of land situate,
lying and being in the First Ward of the City of New York, and bounded
and described as follows, viz: Beginning at a point being the southwesterly
corner of Whitehall and Pearl streets, tunning thence westerly along
Pearl street, 44 feet 8 inches, to land now or late of James Boyd,
thence southerly along said Boyd's land 18 feet, to another lot
belonging to the estate of John Lang, thence easterly along said
last mentioned lot aml through the centre of the wall, being party
wall, whereof one-half stands on
the lot hereby described and the other half on the lot, next
adjoining southerly thereto, 47 feet, 4 inches, to Whitehall
street, and thence northerly along the westerly side of Whitehall
street aforesaid, 17 feet, 5 inches, to the corner, the place of
beginning, together with all right, in said wall as a party wall."
Being part of the land belonging to John Lang and of which he did
seize (?) and possessed.
"Also all that certain lot, piece or parcel of land and premises situate,
lying and being in the First Ward of the City of New York, on the westerly
side of Whitehall street, bounded and described as follows, that is to say:
Beginning at a point in the westerly line of Whitehall street 17 feet,
5 inches southerly from the southwesterly corner of Whitehall and
Pearl streets in the centre of a party-wall of two brick buildings
which said party-wall stands the one-half on the premises herein described,
and the other half on the land next northerly adjoining thereto,
thence running westerly through the centre of said partywall and in a
line in continuation thereof, 47 feet 4 inches to the easterly line
of land now or late of James Boyd, at a point which is 18 feet
southerly from the southerly line of Pearl street, thence southerly
along the said easterly line of said land
"now or late of James Boyd, 17 feet 7 inches, "thence easterly in a
straight line to the said west"erly line of Whitehall street, 49 feet
7 inches "at a point 34 feet 6 inches southerly from the "southwesterly
corner of Whitehall and Pearl "streets, thence northerly along the
westerly line "of Whitehall street, 17 feet 1 inch to the place of
- That on or about the 8th day of September, 1870,
the plaintiff intermarried with Heinrich A. Haack; and that in or about
the month of June, 1883, the said Heinrich A. Haack died at the city of
Brooklyn, leaving a last, will and testament duly made and executed and
which was duly admitted to probate by the Surrogate of Kings County, on
or about October 11, 1883, and recorded in said
Surrogate's office in book 102 of Wills page 184, a copy of which
will is annexed to the complaint and marked Ex. No. 2, and made
a part thereof.
That on or about the 10th day of October, 1879, it was agreed by and
between the plaintiff Wilhelmima Haack and the defendants Anna M. Meyer
(at that time the widow of Ferdinand Deppermann, and known as Anna
Margaretha Deppermann), Lena Margaretha Sieneck and John Steneck [Robke?], the children
of the said William Ropke deceased, that said residuary real estate
should be divided among them as follows: That the lands situated in the City
of Brooklyn should be conveyed to the defendant John Ropke, in fee simple,
upon payment by him of the sum of ten thousand dollars to one of his
defendant sisters herein, and that the lands situated in the City of
New York should be conveyed to the said John Ropke in order that the
same should be conveyed by him to plaintiff and her then husband, upon
payment by her said husband of the sum of ten thousand dollars to
the other defendant sister, and that the plaintiff's interest
in said estate should remain in said New York property.
That instruments in willing intended to execute and consummate
the said agreement were executed and delivered, and the said sums
of money so agreed were paid by the said John Ropke and plaintiffs
said husband respectively.
That on or about the said sixth day of October, 1879,
Anna Margaretha Black (the widow of said William Ropke), who had in the
meantime intermarried with one Frederick Black, and the plaintiff herein,
and the defendants Anna M. Meyer (at that time the widow of Ferdinand
Depperman, and known as Anna Margaretha Depperman), and Lena Margaretha
Steneck (wife of John Steneek) the heirs and next of kin of
said William Ropke, deceased, made and executed an instrument
in writing, bearing date on that day, wherein and whereby they
remised, released and quit claimed to John A. Ropke, the other of said
heirs and next of kin of said William Ropke, deceased, the land
and premises situate in the City of
New York, more particularly described in the Finding of Fact numbered
"6," which deed was duly recorded in the office of the Register of
the City and County of New York, in Liber 1511 of Conveyances, page 317,
on the 22d day of October, 1879.
That on or about the said 6th day of October, 1879, the said
John A. Ropke made and executed an instrument in writing, bearing
date on that day, wherein and whereby he remised, released and quit-claimed
to Heinrich A. Haack the said lands mid premises situate in the City
of New York, referred to in the last preceding Finding of
"Fact, and more particularly described in the Finding of Fact numbered "6,"
as aforesaid, which deed was duly recorded in the office of the
Register of the City and County of New York, in Liber 1511 of
Conveyances, page 320, on the 22nd day of October, 1879.
That a copy of the instrument by which the lands situated in the City
of New York were conveyed in pursuance of the said agreement
to the said John ltopke is annexed to the complaint and marked Ex. 3,
and made a part of the said complaint; and that a copy of the instrument
by which the said lands were conveyed to plaintiff's husband in pursuance
of said agreement is annexed to the complaint and marked Ex. 4, and made
a part of said complaint.
That plaintiff received no consideration whatever for conveying her
right, title and interest in the said residuary real estate of the
said William Ropke, and executed the conveyance marked Ex. 3 solely
in pursuance of the said agreement.
That no mistake was make in omitting from the deed mentioned and
referred to in the Finding of Fact numbered "11'' the name of the
plaintiff as one of the grantees or parties of the second part
therein, and that said deed, and the deed mentioned in the 10th
Finding of Fact, express the intention
of the parties thereto.
That the plaintiff was well aware in or about the month of September, 1883,
that the deed from John A.Ropke, mentioned and referred to in the
llth Finding of Fact, had been made, executed and delivered to Henrich A.
Haack her (husband) alone.
That the said Heinrich A. Hanck paid as consideration for the premises
so conveyed to him by the said John A. Ropke, as aforesaid, the sum of
ten thousand dollars, out of his own personal means.
That, the said Heinrich A. Haack did not convey the said premises,
or any part thereof, during his lifetime.
That the said Heiinich A. Haack died possessed of personal property,
amounting in the aggregate to the sum of nineteen thousand seven
hundred and thirty-nine dollars ($19,739.) or thereabouts, and that he
died seized of a house and two lots, situate at the southeast
corner of Marcy and Willoughby avenues in the City of Brooklyn,
and of the premises hereinbefore mentioned and referred to, situate
in the City of New York, and more particularly described in the sixth
finding of fact hereof; and that the said personalty and realty
so referred to constitute the whole of the real and personal property
and estate of the said Heinrich A. Haack.
That, the said Heinrich A. Haack, in and by his said last will
and testament, devised to his wife, the plaintiff herein, the
house and real estate situate at the southeast corner of Marcy
and Willoughby avenues in the City of Brooklyn aforesaid, and gave
and bequeathed to her the sum of ten thousand dollars in cash,
the same to be in lieu of dower.
That the said Heiinich A. Haack, by his said last will and testament,
gave and bequeathed to his niece, Wilhelmina Oest, the stun of four
thousand dollars; and to his nephew, Henry Oest, a like sum of four
That the said Heinrich A. Haack, in and by the residuary clause of
his said last will and testament, gave, devised and bequeathed to
his sisters, Wilhelmina Hopke and Mary Oest, and to his brother
Diedrick W. Haack (defendants herein) all the rest, residue and
remainder of his estate, share and share alike.
That the residuary estate of said decedent, Heinrich A. Haaek,
so given, devised and bequeathed to the defendants, Wilhelmina Hopke,
Mary Oest and Diedrick W. Haack, as stated in the twenty-first
finding of fact, consisted of the aforesaid lands and premises
situate in the City of New York, hereinbefore mentioned and
referred to, and more particularly described in the sixth
finding of fact hereof.
That the plaintiff, Wilhelinina Haack, has accepted the
benefits and provisions in her favor in said will contained.
That, at the time she accepted said benefits and provisions she was aware
that the aforesaid premises described in the sixth finding of fact
hereof, had been conveyed to her husband ; that he was the sole owner
thereof; and had devised the same under the residuary clause in
his will to the said defendants, Mary Oest, Wilhelmina Hopke and
Diedrick W. Haack.
I. That the deed mentioned and described in the tenth finding of
fact conveyed John A. Ropke
MILES BEACH, J.8.C.
"all the right, title and interest of the grantors
therein mentioned in and to tiie lauds and premises therein described."
II. That the deed mentioned and described in the
eleventh finding of fact, conveyed to Heinrich A. Haack
all the right, title and interest of the grantor therein mentioned,
in and to the lands and premises therein described.
III. That the deed mentioned and described in the tenth finding of
fact is valid and effectual as against the plaintiff and all
grantors therein mentioned.
IV. That the deed mentioned and described in the eleventh
finding of fact is valid and effectual as against the plaintiff and
the grantor therein mentioned.
V. That the plaintiff has not, any right, title nor interest in and to
the lands and premises described in the complaint in this action and in
the 6th Finding of Fact hereof.
VI. That the said lands and premises are vested in Wilhelmina Hopke,
Mary Oest and Diedrick W. Haack, under the residuary clause of the
said last will and testament of Heinrich A. Haack, deceased.
VII. That the plaintiff, by accepting the provisions and benefits
in the said will of Heinrich A. Haack made and conferred in her favor,
has manifested her election to hold under the said will, and is
precluded from setting up any legal or equitable claim of her own,
the assertion of which would defeat or tend to defeat any provision
of that will.
VIII. That such election on the part of the plaintiff is
an absolute bar to her recovery in this action.
IX. That the complaint of the plaintiff herein should be dismissed
upon the merits of the action.
X. That the defendants, Wilhelmina Hopke, Mary Oest and Diedrick W. Haack,
should recover their
costs and disbursements, to be taxed according to law.
XL That the said defendants, Hopke, Oest and Haack, are entitled to
an extra allowance, which is hereby fixed at the sum of Fifty dollars.
SUPREME COURT OF THE STATE OF NEW
YORK. - City And County of New York.
HAACK HENRI A. 1883-06-06 22020 176
HAACK HENRIETTA W. 1868-11-14 16087 149
HAACK LIZZIE 1868-09-14 16087 149
HAACK WILHELMINA 1875-05-12 16087 149
HAACKE BERTHA 1903-02-10 20118 6
HAACKE BERTHA M. 1979-03-16 16087 149
HAACKE CHARLES 1889-02-11 20118 6
HAACKE ELIZABETH 1892-06-14 16087 149
HAACKE FREDERICK 1896-01-07 20118 6
HAACKE JOHN P. 1944-05-24 16087 149
HAACKE JOHN W. 1891-06-27 16087 149
HAACKE KATHARINE MARIE 1948-10-11 16087 149
HAACKE MINNIE M. 1966-02-07 16087 149
New York City Deaths:
Haack Anna 59 y Dec 9 1933 24346 Kings H200
Haack Anna D 86 y Apr 25 1903 7376 Kings H200
Haack Bertel 32 y Dec 3 1938 23312 Kings H200
Haack Bertha F 59 y May 23 1937 11930 Kings H200
Haack Charles A 11 y May 11 1902 8355 Kings H200
Haack Charlotte 28 y Jan 8 1939 703 Kings H200
Haack Christina 2 y Mar 18 1893 4464 Kings H200
Haack Clifford 20 y Jan 27 1946 2597 Kings H200
Haack Doretha 47 y Dec 7 1897 19443 Kings H200
Haack Edward 3 m Aug 27 1881 10132 Kings H200
Haack Emma 2 m Jul 25 1889 10786 Kings H200
Haack Ethel 1 y Jun 23 1909 11762 Kings H200
Haack George 1 y May 1 1868 2614 Kings H200
Haack Glaus 66 y Nov 24 1921 18948 Kings H200
Haack Henri 45 y Jun 3 1883 5695 Kings H200
Haack Henry 63 y Dec 24 1915 24483 Kings H200
Haack Henry F 75 y Jan 24 1915 1938 Kings H200
Haack Herman A 76 y Sep 4 1940 17771 Kings H200
Haack Herman R 77 y Oct 13 1927 18932 Kings H200
Haack John 2 y Oct 3 1888 14171 Kings H200
HAIGHT J. This action was brought for the reformation of a deed executed by John Albert
Ropke to Heinneh A. Haack, dated the 6th day of October, 1879, conveying certain real
estate in the city of New York, by inserting the name of the plaintiff as one of the
grantees therein and adjudging her to be the owner of one undivided half thereof.
The trial court has found as facts that William Ropke died seized of two parcels of real estate,
one situated in the city of Brooklyn, and the other in the city of New York, each valued
at the sum of $20,000; that he left him surviving
three daughters and one son, of which the plaintiff was one, who had become vested as tenants
in common of the real
estate so left by him; that on or about the 6th day of October,
1879, they entered into an agreement to the effect that the lands situated
in the city of Brooklyn should be conveyed to the plaintiff's brother, John Ropke,
upon payment by him of the sum of $10,000 to one of the plaintiff's sisters; and that
the lands situated in the city of New York should be conveyed to him in order
that the same should be conveyed by him to the plaintiff and her husband,
Heinrich A. Haack, upon payment by herhusband of the sum of $10,000 to the
other sister; that the plaintiff's interest in the estate should remain
in the New York property; that instruments in writing intended to execute and -
consummate the agreement were executed and delivered, and the sinus of money so
agreed were paid by John Ropke and the plaintiff's husband respectively; that
the deed executed by John A. Ropke of the New York property, pursuant to the agreement,
ran to Heinrich A. Haack, the plaintiff's husband, as the sole grantee; and
that the plaintifi received no consideration whatever for conveymg her interest
in the estate of her father to her husband; that she did not know of it until
after the death of her husband and until the month of September, 1883, but had
always understood and believed that the title had been taken in the name of
herself and her husband, pursuant to the agreement.
The trial court further found as a fact that no mistake was made in omitting
from the deed mentioned, the name of the plaintiff as one of the grantees or
parties of the second part; and, as conclusions of law, that it was valid and
effectual as against the plaintiff and conveyed the entire title to her husband.
Exceptions were taken to the last finding of fact as well as
'to the conclusions of law.
There is an apparent conflict in the finding of fact to the eflect that
there was no mistake in omitting from the deed the name of the plaintiff, with the
findings that precede it. It is our duty to see if they can be reconciled.
(Green v. Roworth, 113 N. Y. 462.) We have, therefore, examined the ease with
some care for the purpose of determining what was intended by the trial court
in making this finding. Upon referring to the requests to find which were submitted
by the plaintiff, the trial court repeated the finding of the partition
agreement of the children of William Ropke, and that the conveyance was to be
made by them to John Ropke, and that he was to convey the New York property to
the plaintiff and her husband upon the payment by the husband of the sum of $10,000
to one of the sisters, "and that the plaintiff's interest in the said estate should remain
in said New York property," and that the instruments in writing intended
to execute and consummate the agreement were executed and delivered, etc.
Thus finding that so far as John Ropke was concerned that he executed the deed with
the intention and for the purpose of carrying out the agreement. Upon referring to
the evidence we find that there was no dispute about the agreement; that
all of the children understood it alike; that John Ropke understood that he was to convey
to the plaintiff and to her husband, and that the plaintiff's $10,000 was to stay
in the property along with her husband, and that in executing the deed he
did not stop to read it. The agreement was so understood by Mr. Morgan, the executor
of William Ropke, and he appears to have instructed Mr. Bradshaw to
draw the deeds in conformity therewith. It seems that Mr. Bradshaw so understood
the agreement, but he omitted the name of Mrs. Haack from the deed because her
husband stated to him that "he wanted that portion to his wife fixed so it vested in him."
He testified, however, that Mrs. Haack was not present, and that he did not consult
her to see whether the arrangement was according to her wishes; that he did not ask
any questions, but thought that Mr. Haack was a pretty clear-headed fellow, and was
taking good care of himself to vest himself with the property.
The trial court in its opinion restates the agreement as made between the children
of Ropke, and that the plaintiff was to take title to the New York property
with her husband, and then refers to the direction of the plaintiff's husband to
the conveyancer to draw the deed so that the property would vest in him, and
upon this fact appears to have based the conclusion that - the idea of a mistake in
the transaction could not be upheld. So that, as we understand, the intention
and meaning of the trial court in finding that there was no mistake in omitting
from the deed the name of the plaintiff, means that there was no mistake
so far as the plaintiff's husband was concerned. This construction removes
the conflict that otherwise Would exist between the findings of fact as
made and brings them into harmony with the testimony given.
It next becomes important to consider the interest of Ropke, the grantor, and his
relation to the parties. As we have seen, he was the brother of the plaintiff, and
one of the four tenants in common to the New York and Brooklyn property, of which
his father had died seized. They had agreed upon a partition of the property between them.
The sisters had joined in a deed to him with the understanding and agreement that he
was to convey the New York property to the plaintiff and her husband upon the payment
by the husband of $10,000 to one of the sisters; that the plaintiff's interest was to
remain in the New York property. The plaintiff, as one of the four children of William Ropke,
was seized of a one-fourth interest of the real estate in New York and Brooklyn.
Under the partition agreement she was to convey her interest in the Brooklyn property to
her brother, and her entire interest in the real
estate was to vest in the New York property, which would make her interest
in that property an undivided one-half. John Ropke in taking the title to the
New York property under the agreement to convey, became merely a trustee for
that purpose. He was the mere conduit through whom the title was transferred.
He had no authority or right to change the contract and convey to other person or persons
than those agreed upon.
The agreement was with the plaintiff, his sister, to convey to her an undivided one-half.
Instructions to that efiect were given to the scrivener, and the deed was
executed by Ropke with the intention and for the purpose of carrying out the agreement.
They are both parties to-the agreement, and certainly as to them there was a mutual
mistake in omitting the plaintiff's name from the deed. It is true that the agreement
also embraced the husband. He, was to buy one of, the sister's interest for $10,000, and
was to receive a deed of the other undivided one-half of the New York property, that
being the sister's interest which he had purchased. But this portion of the agreement
is independent of that requiring Ropke to convey to the plaintifi her interest, and
gave him no power, right or authority to change, alter or modify the agreement to
convey to her.
The trial court, as we have seen, has found that the plaintiff received no
consideration for the transfer of her interest in the property to her husband,
and that she did not in fact know of it but understood and believed the title
to be in herself until after his death. Here there was not even a gratuitous
transfer of the property from the wife to the husband. There was no
intention to convey or understanding that conveyance had been made. In such a
case it is not necessary that there should he a fraudulent intention on the part
of the husband to obtain title. Haack did not request the scrivener to omit the plaintiff's name
from the deed, but as the scrivener recoliects he requested that the deed should be so drawn
that her interest would vest in him. This testimony was given
some six years after the transaction, and his recollection may not be exact in
reference to the words used. Haack might not have intended to perpetrate a fraud upon his wife.
But it would either be a fraud or a mistake, which would be
suflicient to vitiate the conveyance. Occupying the confidential relation of husband and
obtaining the conveyance under the circumstances disclosed, casts upon him the burden
of showing that the conveyance was free from fraud or mistake.
Again, we do not understand that the rights of the plaintill would be affected
even though it should be found that her husband acted for her as her agent.
The consideration for the conveyance of the undivided one-half was hers.
If her husband without her knowledge and consent procured the conveyance to be made to him, she would still be entitled
to have it adjudged that he held the same in trust for her, notwithstanding the
provisions of the statute which provide that: "Where a grant for a valuable
consideration shall be made to one person and the consideration therefor
shall be paid by another, no use or trust shall result in favor of the
person by whom such payment shall be made, but the title shall vest
in the person named as the alienee in such conveyance." (1 R. s., 728, 51.)
For under section 53 the provisions of section 51: "Do not extend to cases where the
alienee named in the conveyance shall have taken the same as an absolute
conveyance in his own name without the consent or knowledge of the person
paying the consideration. (Reilz V. Reite, 80 N. Y. 538, 542.)
We therefore agree with the General Term, so far as this branch of the case is
concerned, that the plaintiff has established a good cause of action for a
reformation of the deed.
It remains to be seen whether she has forfeited that right by accepting the devise
and legacy contained in the will of of her deceased husband.
In June, 1883, Heinrich A. Hack, the plaintiff's husband, died, leaving a last will
and testament, which has been duly
proved and admitted to probate. By it he devised to his wife, the plaintiff, the real
estate in Brooklyn on which he lived, and bequeathed to her the sum of $10,000 in cash,
which was to be in lieu of dower. He then gave his gold watch and chain to Henry Oest,
and $4,000 each to Will1elmina Oest and Henry Oest, his nephew and niece.
It then provides: "I give and devise to my sisters, Wilhehnina Ropke and Mary Oest,
and my brother, Deidrick Haack, all the rest, residue and remainder of my estate,
share and share alike." The plaintiff has accepted the provisions made
in the will in her behalf, and the trial court has found that this acceptance on
her part amounts to an election to hold under the will, and precludes
her from setting up any legal or equitable claim of her own to the
real estate in question. The rule appears to be unquestioned by the parties.
It was well stated
by DENIO, Ch. J ., in the case of Havens v. Sachett (15 '
N. Y. 365-369). He there says: "One who accepts a benefit under a deed or will,
must adopt the whole contents of the instrument, conforming to all its
provisions and renouncing every right inconsistent with it. For example, if a testator
has attempted to dispose of property in his own name and has
given a benefit to the person to whom that property belongs, the legatee or
devisee accepting the benefit so given tohim must make good the testator's attempted disposition."
If, therefore, the plaintiff's late husband has devised the real estate in
equity belonging to her, her acceptance of the devise and bequest, under
the will, precludes her right to maintain this action. She cannot
accept and then prevent the other
devisees under the will from receiving the portion intended,
for them. But, has he devised the real estate which equitably belonged to her? He knew that
"an undivided one-half of the property in question belonged to her, as -----
and separate property, having descended to her from her deceased father;
he knew that he had taken the title of her interest in his own name, without
her knowledge or consent; that equitably, it still belonged to her.
He only gives to his brothers and sisters the residue and remainder of his
estate, share and share alike;
he mentions no parcel of real estate intended to be covered by this
provision, neither does he pretend to give them anything but that which
is --. So that we are unable to see that there is anything in the will
that is inconsistent with the claims of the plaintiff. It is argued that by
allowing her to recover her interest in the real estate the provisions
of the will will be defeated, and thus it is evident that he intended to
devise that portion of the real estate equitably belonging to her;
but such does not appear to us to be the effect. Under the partition agreement,
she was to retain her interest in the real estate, Which, as we have seen,
was an undivided one-half. This was her sole and separate property. Her
husband purchased the interest of her sister for $10,000, which vested in him
the other undivided one-half. Their interests were separate and distinct;
it was that of tenants in common and not of joint tenants or tenants
by the entirety. By accepting the provisions made for her by the will, she
waived her right to dower. Therefore, her husband's undivided one-half of the real estate remained to be disposed of by the will. It appears that a legacy of $10,000 was given to her and two other legacies of
$4,000 each were given to a nephew and niece, making
$18,000. The report of the executors show that the personal estate coming
to their hands amounted to the sum of $20,567. 9
and the debts amounted to $1,739.62, leaving a balance of
$18,828.17. The will contains no provisions charging the payment of the
legacies upon the real, estate, and, in view of the fact that the personal
estate exceeded the amount of the legacies, we must assume that he expected and intended that
‘ they should be paid out of his personal property. This leaves
his undivided half of the real estate in New York, which, at the time of his death,
was valued at $12,500, to pass to his brother and two -sisters, under the
residuary clause, thus carrying out all of the provisions of the will,
doing justly to all objects of his bounty and robbing no one. If the
conclusion of the trial court is correct, a very difierent result will be reached,
for, under that view, the plaintifi, his widow, will be left without any
substantial provisions made for her support
and maintenance out of his estate. The real estate devised to her was
encumbered by a mortgage for $5,000. Prey, one of
- the defendant’s witnesses, testified that it was worth about $3,000
aside from the mortgage, which we must assume to be its full value. This added to the $10,000
bequeathed to her, makes $13,000, the entire amount that she get under the will.
If the real estate in question was worth $25,000 at the time of his death,
as claimed by the respondents, her half which was taken from her by her
husband was worth $12,500. The provisions of the will, therefore, but barely pay her for that which was her own, and, at most, leaves her but $500, which
she gets in lieu of dower, forher support and maintenance;
and this out of an estate left by her husband of upwards of $36,000, aside
from her half of the real estate. It does not appear to us that
such was the purpose or intent of her husband.
We are consequently of the opinion that the judgment should be reversed
and a new trial ordered, and that the costs should abide the event. ,
All concur, except FQLLETT, -Ch. J ., dissenting, and BRADLEY, J ., not voting.
Reports of Cases Decided in the Court of Appeals of the State of ..., Volume 118
By New York (State). Court of Appeals