In re the Estate of Benin

31 A.D.2d 747, 297 N.Y.S.2d 347, 1969 N.Y. App. Div. LEXIS 4790

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 13, 1969
• Status: Published

Opinion

In a proceeding to construe and determine the validity and effect of certain provisions of the testator’s will, and to validate her notice of election to take against the will, petitioner appeals from a decree of the Surrogate's Court, Kings County, dated August 6, 1968, which adjudged that the will gave her the portion specified in section 18 of the Decedent Estate Law (now EPTL 5-1.1, subd. [a]), that this gift was not conditional and that the notice of election was a nullity. Decree affirmed, with $10 costs and disbursements to all parties filing separate briefs, payable out of the estate. The will contained clear indications that petitioner’s share of the estate was to be fixed by reference to former section 18 of the Decedent Estate Law (now EPTL 5-1.1, subd. [a]) (cf. Matter of Schlinger, 48 Misc 2d 438). This gift did not compel petitioner to elect against the will (cf. Matter of Filor, 267 App. Div. 269, affd. 293 N. Y. 699; Matter of Collins, 13 N Y 2d 194, 198, 199). Nor may the clause which provided that “this devise shall be in lieu of any and all rights of dower, or any other rights, which my said wife may have against my estate”-be read to limit any rights which petitioner may have as a creditor of the estate (Matter of Galewitz, 3 Misc 2d 197, affd. 3 A D 2d 736, affd. 5 N Y 2d 725; Matter of Tisnower, 16 N Y 2d 906). The language of the will providing for an outright payment to her is broad enough to cover payment of any debts which may be owed. Beldoek, P. J., Christ, Benjamin, Munder and Martuscello, JJ., concur.