Opinion
February 28, 1938.
Order of the Surrogate's Court, Westchester county, in so far as it denies the motion of the executors-appellants to dismiss the amended petition of respondent, reversed on the law, with ten dollars costs and disbursements to appellants, payable out of the estate, and motion granted. The amended petition does not state facts sufficient to warrant any of the three forms of relief demanded. The powers granted to the trustees by the terms of the will do not impair the trust so as to entitle the respondent to take her intestate share. ( Matter of Clark, 275 N.Y. 1.) Assuming, as the amended petition alleges, that a mistake was made as to the value of the estate, it does not follow that there is a trust in form only. ( Matter of Clark, supra.) Consequently, the respondent has no legal claim to the intestate share; and the two other forms of relief demanded, namely, (1) for a construction of the notice of election previously filed, and (2) for leave to file an amended election to take the intestate share, may not be granted. Lazansky, P.J., Hagarty, Davis, Johnston and Close, JJ., concur.