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MATTER ESTATE CONRAD TRUBENBACH (06/08/62)
SURROGATE'S COURT OF NEW YORK, NEW YORK COUNTY
1962.NY.44248 <http://www.versuslaw.com>; 230 N.Y.S.2d 322; 35 Misc. 2d 318
June 8, 1962
IN THE MATTER OF THE ESTATE OF CONRAD TRUBENBACH, DECEASED
Wormser, Koch, Kiely & Alessandroni for Edward M. Trubenbach and another, as executors, petitioners.
Gillespie & O'Connor for Manville F. Hendrickson and another, respondents.
Burlingham Underwood Barron Wright & White (Herbert M. Lord and Harrington Harlow of counsel), for Janet Trubenbach, respondent.
Woodson D. Scott, as special guardian for Jill A. Hendrickson and another, infants, respondent.
Joseph A. Cox, S.
This proceeding was instituted by the executors to determine the legal effect and validity of the right of election exercised by the testator's widow pursuant to the provisions of section 18 of the Decedent Estate Law. The testator died on June 30, 1961 leaving a last will and testament dated December 30, 1960, which was duly admitted to probate in this court on August 9, 1961. The testator's sole distributees are his widow, the respondent in this proceeding, and two infant grandchildren who are the issue of a daughter who predeceased him.
In articles third and fourth of his will the testator bequeathed personal property to his wife and, by the sixth article, he created a trust for her benefit. These testamentary provisions are attacked on the ground that they do not provide the widow with her "intestate share" of the estate within the meaning of section 18 of the Decedent Estate Law. It appears to be conceded that the value of the property to be received by the widow under articles third and fourth exceeds $2,500, but the claim is made that the principal of the trust created for the widow under article sixth is not equal to the excess between the legacies and her intestate share and, for this reason, the will fails to meet the requirements of paragraph (d) subdivision 1 of section 18.
The testator in article sixth carefully provided that the trust for his wife should "consist of that portion of my residuary estate which, when added to the value of the property bequeathed to my wife, Janet, under Articles 'third' and 'fourth' above, shall be equal in value to the intestate share which my wife would have the right to elect to receive under section 18 of the Decedent Estate Law of the State of New York, as the same shall be in effect at the time of my death." He then provided that the trust income be paid or applied for the benefit of his wife during her life and he went on to authorize the trustee to pay to the wife so much of the principal of the trust as the trustee "in its sole discretion, deem advisable ...