178 Misc. 338 | N.Y. Sur. Ct. | 1941
This is a proceeding, brought by the • executor herein to determine the validity of a notice of election filed by the surviving husband of this testatrix, pursuant to section 18 of the Décedent Estate Law.
Testatrix died on July 22, 1940,' leaving a will dated November 12, 1937. She was survived by her husband and two nieces who, together, constitute all of her distributees. Under article “ fifth ” of her will, she directed that her entire residuary estate be divided into four equal parts or shares, two of which were given outright
This will gives to the husband all that he is entitled to receive by statutory right, namely, the life use of one-half of the net estate. (Dec. Est. Law, § 18, subd. ¶, |a].) He has, however, the right to withdraw the sum of $2,500 outright from the principal of the trust created for his benefit. (Dec. Est. Law, § 18, subd. 1, ¶ [b]; Matter of Rich, 149 Misc. 843; affd., 242 App. Div. 613.)
One further point remains for consideration. The executor contends that in the event of the withdrawal of $2,500 from the corpus-of the trust, that such fund must first be exhausted toward making up the difference between the income earned and the required $150 per month, before resorting to the principal for such difference. Petitioner relies upon the authority of the opinion of the learned surrogate of Kings county in Matter of Rice (155 Misc. 678). Although there seems to be a dearth of authority upon this precise subject, the decision of the court in Matter of Bodenstein (257 App. Div. 901, 902) may be accepted as overruling the last cited authority. In this case the court stated: “ Mindful that it was the Legislature’s declared intention, when section 18 of the Decedent Estate Law was adopted, ‘ * * * to increase the share of a surviving spouse in the estate of a deceased spouse * * * ’ and giving heed to the admonition that the statute ‘ shall be liberally construed to carry out such intention ’ (Laws of 1929, chap. 229, § 20) we cannot accept appellants’ argument that section 18 must be so construed as to require the widow to exhaust the $2,500, which is to be deducted from the principal of the testamentary trust, before any withdrawals from income or the balance of principal are made for her care and maintenance. (See Matter of Byrnes, 260 N. Y. 465, 470-472.) ”
“ The testatrix must be presumed to have known that the husband possessed this limited right to withdraw that amount from, the principal of his trust fund.” (Matter of Rich, supra.)
• I, therefore, hold that Asa John Stott, the surviving husband of this decedent, is entitled to withdraw the sum of $2,500 from the principal of the trust for his benefit, no part of which shall thereafter be considered or computed in making up whatever deficiency there may be in the stipulated payments to which he is entitled under the the terms of the will. In so far as the husband seeks any further right of election, his application is denied.
Settle, order accordingly.