From Casetext: Smarter Legal Research

Matter of Glasenberg

Surrogate's Court of the City of New York, Kings County
Aug 17, 1961
30 Misc. 2d 721 (N.Y. Surr. Ct. 1961)

Opinion

August 17, 1961

Solomon A. Koenigsberg for executors.

M.B. Rhine for Workmen's Circle Branch No. 99.

Leonard P. Simpson for Workmen's Circle Home for Aged.


The executors seek a determination as to the validity and effect of the notice of election served and filed by the surviving spouse to take against testator's will. The will, dated August 1, 1960, was admitted to probate on January 24, 1961.

By paragraph "THIRD", testator bequeathed 35% of his estate to his wife with the direction that she "devote and contribute one-third" thereof to certain charities. The will contains no other provision for testator's wife. The remainder of the estate is to be divided among named legatees in specified percentages.

There were no children born of testator's marriage, thus the intestate share of the surviving spouse is 50% of the net estate. The bequest provided for the surviving spouse under testator's will does not meet the minimum requirements of the statutes (Decedent Estate Law, §§ 83, 18). The statutory provisions in favor of a surviving spouse are remedial and are to be literally construed ( Matter of Peter, 20 Misc.2d 1082; Matter of Clark, 1 A.D.2d 567).

The court holds that testator's surviving spouse has a right to elect to take 50% of the net estate as in intestacy (Decedent Estate Law, § 18, subd. 1, par. [a], as amd.; Matter of Clark, 169 Misc. 202; Matter of Bommer, 159 Misc. 511; Matter of Perloff, 133 N.Y.S.2d 199, affd. 285 App. Div. 1178). Such intestate share of one half of decedent's estate shall be computed after deducting her statutory exemption, decedent's debts, funeral and administration expenses, but before deduction of any estate taxes (Decedent Estate Law, § 18, subd. 1, par. [a], as amd., eff. April 19, 1955; Matter of Wolf, 307 N.Y. 280, 287; Matter of Taliento, 9 Misc.2d 167). The will contains no direction as to the apportionment of estate taxes, thus the widow is entitled to have her share computed initially out of the net estate prior to deduction of State or Federal estate taxes ( Matter of Wolf, supra). The estate taxes on the widow's share however are thereafter to be equitably computed in accordance with section 124 of the Decedent Estate Law ( Matter of Peters, 275 App. Div. 950; Matter of Campbell, 4 Misc.2d 331). The widow's interest cuts across the entire estate, subjecting each testamentary gift to a pro tanto contribution to satisfy her statutory lien ( Matter of Byrnes, 260 N.Y. 465; Matter of Taliento, supra).


Summaries of

Matter of Glasenberg

Surrogate's Court of the City of New York, Kings County
Aug 17, 1961
30 Misc. 2d 721 (N.Y. Surr. Ct. 1961)
Case details for

Matter of Glasenberg

Case Details

Full title:In the Matter of ESTHER GATOV et al., as Executors of JACOB GLASENBERG…

Court:Surrogate's Court of the City of New York, Kings County

Date published: Aug 17, 1961

Citations

30 Misc. 2d 721 (N.Y. Surr. Ct. 1961)
223 N.Y.S.2d 563

Citing Cases

Matter of Schilling

It is the contention of the executor in answer to the informal and formal objections that all legacies, both…