185 N.E. 704 | NY | 1933
Ancil Greenberg, the testator, died in Kings county, February 16, 1931. He left a widow and five children. He also left a will, dated December 21, 1927, a codicil thereto dated October 30, 1930, and another codicil dated January 3, 1931. The will and codicils were admitted to probate. No provision was made in the will for the widow except a legacy of one dollar coupled with an expression of disappointment in her failure to establish for testator "a blissful and contented home." The widow gave notice of election to take her share of the estate as in intestacy, as provided *477 by section 18 of the Decedent Estate Law (Cons. Laws, ch. 13). The Surrogate's Court sustained her contention. The Appellate Division affirmed.
The Decedent Estate Law (Laws 1929, ch. 229, § 18, par. 1) provides: "Where a testator dies after August thirty-first, nineteen hundred and thirty, and leaves a will thereafter executed and leaves surviving a husband or wife, a personal right of election is given to the surviving spouse to take his or her share of the estate as in intestacy," subject to limitations not bearing on this question.
It also provides (§ 2): "The term `will,' as used in this chapter, shall include all codicils."
The appellant contends that as the "will" herein was executed prior to August 31, 1930, section 18 of the Decedent Estate Law does not apply for the reason that the codicils executed after the effective date of the statute did not re-execute the will. InOsburn v. Rochester Trust Safe Deposit Co. (
Cases having to do with bequests to charity lawfully made by the terms of the will are cited from other jurisdictions. (Carl's Appeal, 106 Penn. St. 635; Estate of McCauley,
The new law provides against and prevents unjust provisions, cutting off the widow from her share of the estate, but it does not leave open the question whether the wife has offended her lord and master. It makes no rule for the individual case. Proper provision must be made for the widow where the statute is applicable. The right of election may not be available to her in certain cases of divorce and separation (Decedent Estate Law, § 18, pars. 3 and 5), but no exception takes care of this case. *479
The new policy is so well defined that we would be doing violence not only to the meaning of plain language but also to the legislative intent, if we said that the testator did not re-execute the will within the meaning of the statute when he executed the codicils. To so hold would permit a testator who had made a will prior to September 1, 1930, to make as many new wills after that date as he saw fit, preserving the original instrument only to enable him to make no provision for his widow.
The order should be affirmed, with costs.
CRANE, LEHMAN, KELLOGG, O'BRIEN, HUBBS and CROUCH, JJ., concur.
Order affirmed.