149 Misc. 843 | N.Y. Sur. Ct. | 1933
This proceeding is brought for the construction of the will and for a determination as to the validity and effect of the exercise of the right of election by the husband of the testatrix, under section 18 of the Decedent Estate Law. The plan of the will, in general terms, provides for the setting up of one-half of the estate in trust, with income payable to the husband for life. Upon his death, the principal of that fund is given to a sister of the testatrix, Ida Cole. There is directed to be set aside out of the residue a fund sufficient to produce an annuity of $1,200 per year to be paid to the mother of the testatrix. The remainder of that fund is to be disposed of as part of the residue. The residue is given to the sister of the testatrix named above. There are certain small legacies which are not material to the questions involved here.
The net estate amounts to approximately $80,000. The testatrix left no children or issue. It should be noted that by the benefits provided in the will for her surviving husband, she prevented him from electing to take his intestate share outright. The will created for him a trust in one-half of the estate. That was all the testatrix was required to set aside under the law for his benefit. She did all that the statute required her to do in order to protect the will and the estate from an absolute election by the husband. He became entitled, however, to a limited right of election, under section 18 of the Decedent Estate Law (Subd. 1, H [b]), to withdraw absolutely the sum of $2,500 from the principal of his fund, which aggregates $40,000. Under the terms of that subdivision of the paragraph, after such withdrawal, the other terms of the will “ remain effective.” He now contends that because of the inclusion of paragraph eleventh of the will, he is entitled to withdraw his entire intestate share of one-half of the estate outright. The determination depends on the ascertainment of-the intent of the testatrix rather than upon the effect of section 18 of the Decedent Estate Law. His contention must be overruled. I find no evidence of any intent on the part of the testatrix to permit him to take his intestate share absolutely and against the terms of the will.
Despite the misunderstanding on the part of the draftsman of the will of the provisions of section 18, I find a clear intent and purpose expressed by the testatrix that the provisions of paragraph eleventh of the will were intended to limit her husband to the income of one-half of her estate, subject, however, to his statutory right to withdraw the relatively small amount of $2,500 from the principal of the fund created for his benefit. By this paragraph she clearly intended that he should not be entitled to withdraw
The contention of the husband is that by the provisions of paragraph eleventh the testatrix intended that his exercise of the limited election to withdraw the relatively small sum of $2,500 from the principal of his trust fund should nullify the provisions in the will for the trust income to him in one-half of the estate. I find no such evidence of intent or purpose. The will in its entirety presents a comprehensive plan for the disposition of the whole estate. The minor withdrawal of the limited amount of $2,500 by the husband does not disturb the general plan of distribution. The testatrix must be presumed to have known that the husband possessed this limited right to withdraw tj^at amount from the principal of his trust fund. Paragraph eleventh cannot be interpreted as an indication of purpose on the part of Mrs. Rich to diminish the benefits which she had given to the relatives of her blood. I hold, therefore, that the testatrix provided for her husband to the full extent of bis statutory rights. He is entitled to the payment of •the withdrawable amount under his limited right of election. The will is otherwise immune from attack by him, and the remaining provisions of the trust for his benefit must stand, not because of the provisions of section 18 of the Decedent Estate Law, but because of the dominant expression of intent by the testatrix. In Matter of Vowers (113 N. Y. 569) the terms of the will were essentially different from those here, and the will left no doubt of the testator’s intent. That case is not applicable as an authority here.
I hold, further, that the tenth paragraph of the will, which gave preference to the annuity to the mother of the testatrix, when construed with paragraph second, which directed the setting up of a fund sufficient to produce that annuity “ out of the residue,” has no effect upon the separate fund of one-half of the estate set up as
Submit decree on notice construing the will accordingly.