In re the Accounting of Post , 18 A.D.2d 795 ( 1963 )

unanimously modified, on the law and the facts, either to conform the amounts of the reduced legacies to those proposed by the attorney for the executor hy affidavit dated May 24, 1962, subject only to further adjustment because of increases or decreases since the account was filed, or to remand, if the parties are so advised, to the Surrogate to settle contested adjustments in accordance with his prior decision, and the decree is otherwise affirmed, with costs to all parties submitting briefs payable out of the estate. On the authority of Matter of Matthews (255 App. Div. 80, affd. 279 N. Y. 732), the trust for the widow is subject to invasion for the testator’s sister and, consequently, the widow’s election to take her intestate share under the statute is not precluded. However, there is a variance, as urged by remainder-man appellant, between the legacies as proposed to be reduced in the affidavit of adjustment, to which there was no objection, and the distribution decreed. The executor does not explain the variance. Settle order on notice. Concur — Botein, P. J., Breitel, McNally, Stevens and Eager, JJ.