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MATTER ESTATE HARRY BENIN (01/13/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


January 13, 1969

IN THE MATTER OF THE ESTATE OF HARRY BENIN, DECEASED. BLANCHE BENIN, APPELLANT; ANN KNAPP ET AL., AS EXECUTORS AND TRUSTEES OF HARRY BENIN, DECEASED, ET AL., RESPONDENTS

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.

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

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.

Disposition

Decree affirmed, with $10 costs and disbursements to all parties filing separate briefs, payable out of the estate.

19690113

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