49 N.Y. Sup. Ct. 486
Decided December 31, 1886
New York Supreme Court · decided 1886-12-31
<p>Election — a devisee, by electing to take uwler a will, waives a right to enforce a claim inconsistent with its other provisions.</p> <p>Upon the trial of this action, brought to reform a deed executed to the plaintiff’s husband, Heinrich A. Haack, pursuant to an agreement for the partition of land devised by the plaintiffs father to his four children, it was shown that the inten ' tion was that the property described therein should be conveyed to the plaintiff and her husband, and that the latter should pay $10,000 (one-half the value of the property) to another devisee. By the directions of the plaintiff’s husband the deed was so made out as to convey the whole of the property to him, the name of the plaintiff being wholly omitted therefrom, which fact was not known to her or the party who executed the deed, he having neglected to read it, or to the other parties to the partition agreement, until after the death of the husband, which occurred several years after his receipt of the deed.</p> <p>The husband left a will by which he gave and devised to the plaintiff a dwelling-house and property in Brooklyn, together with the sum of $10,000, and declared these provisions to be in lieu of dower. After certain specific bequests, he gave all the rest, residue and remainder of his property, without other description, to his two sisters and a brother. The plaintiff, after learning that her name had been omitted in the deed and that the whole property had been conveyed to her husband, received under the provisions of this will a number of payments of portions of the legacy given to her, and also kept possession of the dwelling-house devised to her, and demanded that the executor should proceed and pay off a mortgage existing thereon as a debt of the estate, and delayed for a considerable period of time to commence proceedings to reform the deed.</p> <p>Held, that upon learning that her name had been omitted from the deed, the plaintiff was put to her election either to take under the will or to pursue her remedy by reformation of the deed, and that, in this case, she must be held to have elected to take under the will, and to have thereby lost the right to resort to the other remedy.</p>
Decided 1886-12-31
¶1I concur, as the authorities seem to force the result declared, although I do not understand why the plaintiff’s land should be lost by her acceptance of the provisions in lieu of dower, when there is nothing in the will which declares that it was thus intended by the testator to extinguish all other personal claims against the estate. She was entitled to dower by law.
¶2Judgment affirmed, without costs.