In re the Estate of Vlachakis , 199 Misc. 516 ( 1951 )

Rubenstein, S.

The surviving spouse of the testator has instituted this proceeding under.section 145-a of the Surrogate’s Court Act to determine the validity and effect of her election under section 18 of the Decedent Estate Law to take an intestate share against the will provision in her behalf. The will dated August 8, 1928, and the codicils dated May 31, 1940, and May 1, 1946, were admitted to probate August 24, 1950. The ‘ ‘ will ’ ’ here probated includes the codicils. The will was re-executed as of the date of the latest codicil and the widow’s right of election exists (Matter of Greenberg, 261 N. Y. 474, 478; Matter of Simeone, 141 Misc. 737; Matter of Atkins, 193 Misc. 273).

The testamentary provision for the widow gives her the entire income of the estate during her lifetime or until her remarriage, at which time if the youngest child has reached the age of twenty-one years, the entire estate is divided one fifth to the widow and one fifth to each of the four children. The testamentary trust for the widow “ during her lifetime or until her remarriage ” is not a trust for her “ benefit for life ” within the meaning of section 18 of the Decedent Estate Law. The conditions imposed render the provision less than the equivalent of the widow’s intestate share (Matter of Byrnes, 260 N. Y. 465; Matter of Kent, 180 Misc. 567; Matter of Fleishman, 189 Misc. 655). The widow is entitled absolutely to one third of the' net estate as her statutory share, and her prorata share of the income earned during the executorial period (Matter of Kent, supra, 569; Matter of Byrnes, supra). The remainders to the four children are accelerated by the vesting of" the interest of the widow (Matter of Leibson, 92 N. Y. S. 2d 693).

Submit decree accordingly.