9 Misc. 2d 167 | N.Y. Sur. Ct. | 1957
In this accounting proceeding the executor presents 23 questions of construction resulting for the most part from the determination heretofore made by this court upholding the exercise of the widow’s right of election. The court determines that the widow has an absolute right of election, inasmuch as the devise to her for life of the real property in paragraph “ Second” and the life annuity to her in paragraph “Third” of the will are subject to stated conditions including one that “ she remain single and unmarried.” The exercise of her absolute right of election nullifies the conditional life estate and annuity to the widow (Matter of Bevan, 185 Misc. 192; Matter of Giddings, 198 Misc. 536; Matter of Gingold, 116 N. Y. S. 2d 868; Matter of Spencer, 145 N. Y. S. 2d 397). At the same time the remainder interest in the real property is accelerated and vests immediately in the remainderman. The widow thus becomes entitled to her intestate share outright, i.e., one half of the decedent’s estate after deducting her statutory exemption, decedent’s debts and funeral and administration expenses, but before deducting and subject to the allocation of her shares of estate taxes. The amendment to Decedent Estate Law (§ 18, subd. 1, par. (a), eff. April 19, 1955) directing that in computing the net estate, all estate taxes be disregarded is not retroactive and therefore not applicable herein (Matter of Spingarn, 5 Misc 2d 36; Matter of Holcombe, 6 Misc 2d, 241). The widow’s interest cuts across the entire estate, subjecting each testamentary gift pro tanto to her statutory lien which is to be satisfied from the subject matter of the several gifts or by exoneration of their respective donees (Matter of Byrnes, 260 N. Y. 465; Matter of Wishart, 149 Misc. 343; Matter of Curley, 160 Misc. 844; Matter of Ferrara, 165 Misc. 900; Matter of Topazio, 175 Misc. 132; Matter of Willoughby, 45 N. Y. S. 2d 177, affd. 268 App. Div. 1046; Matter of Furno, 199 Misc. 273; Matter of Vlachakis, 199 Misc. 516; Matter of Getz, 115 N. Y. S. 2d 18; Matter of Vitale, 118 N. Y. S. 2d 773; Matter of Reich, 133 N. Y. S. 2d 77; and cases cited above). Since the real estate has been sold pursuant to order of this court, the widow’s lien attaches to the proceeds.
The bequest in paragraph “ Third ” of the will was of “ all the stock in Tally Paper Box Co., Inc., which I own” to four beneficiaries in specified numbers totaling 100 shares (emphasis supplied). This constituted specific legacies (Crawford v. McCarthy, 159 N. Y. 514; Matter of Morphy, 70 N. Y. S. 2d 167) which vested immediately subject pro tanto to the widow’s statutory lien as stated above. Actually however testator owned 101 shares of the stock, being all the shares of stock issued by the
Finally, the gift to the widow by paragraph “Fourth” of ‘ ‘ the proceeds and moneys I have on deposit in my name in the East Brooklyn Savings Bank ’ ’ must be deemed a confirmation of the Totten Trust created by testator for her and therefore is not to be considered as part of the estate for the purpose of computing her elective share (Matter of Perlmutter, 199 Misc. 330; Matter of Koster, 119 N. Y. S. 2d 2; Matter of Phipps, 125 N. Y. S. 2d 606; cf. Matter of Ludwig, 207 Misc. 860).
The special guardian in his report raises several questions pertaining to the computation of commissions in the account. These will be disposed of upon the settlement of the decree. Proceed accordingly.