Opinion
January 22, 1937.
Present — Lazansky, P.J., Hagarty, Adel and Taylor, JJ.; Johnston, J., not voting.
In a proceeding brought by the surviving spouse for the determination of the validity and effect of her election to take her intestate share against the provisions of the decedent's will, decree of the Surrogate's Court of Kings county unanimously affirmed, with costs to respondent, payable out of the estate. We are of opinion that the addition of subdivision (h) to section 18 of the Decedent Estate Law (Laws of 1936, chap. 234, in effect April 3, 1936) did not deprive the respondent, the surviving spouse, of her right of election against a will, exercised prior to the amendment, which will, in part at least, is concededly within the contemplation of the decision in Matter of Curley ( 245 App. Div. 255; affd., 269 N.Y. 548). ( Matter of Bommer, 159 Misc. 511.)