From Casetext: Smarter Legal Research

Matter of Benin

Appellate Division of the Supreme Court of New York, Second Department
Jan 13, 1969
31 A.D.2d 747 (N.Y. App. Div. 1969)

Opinion

January 13, 1969


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. Beldock, P.J., Christ, Benjamin, Munder and Martuscello, JJ., concur.


Summaries of

Matter of Benin

Appellate Division of the Supreme Court of New York, Second Department
Jan 13, 1969
31 A.D.2d 747 (N.Y. App. Div. 1969)
Case details for

Matter of Benin

Case Details

Full title:In the Matter of the Estate of HARRY BENIN, Deceased. BLANCHE BENIN…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 13, 1969

Citations

31 A.D.2d 747 (N.Y. App. Div. 1969)

Citing Cases

Matter of Osher

In other words, consistent with the manifested intent of the testator as well as of the widow, the situation…

Matter of Arlin

Some brief argument has been addressed to the question of the proper interpretation of the quantum of the…