SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
December 4, 1969
IN THE MATTER OF THE ESTATE OF IRMA M. BERRY, DECEASED. VERMONT THORPE CAMP FOR CRIPPLED CHILDREN, INC., APPELLANT, ROBERT W. OWENS, JR., AS EXECUTOR OF IRMA M. BERRY, DECEASED, ET AL., RESPONDENTS
Surrogate's Court decree, entered May 13, 1969, affirmed, with costs and disbursements payable out of the estate to all parties filing briefs.
Concur -- Stevens, P. J., Eager, Capozzoli, Nunez and McNally, JJ.
We fully agree with the Surrogate's conclusion that the order of Supreme Court, entered June 17, 1968, is "permissive of the acts taken by the Committee of the incompetent spouse in filing the election on behalf of the incompetent under both statutes" (former Decedent Estate Law, §§ 17, 18-b). No further order of the Supreme Court is required to authorize the exercise of the right of election as provided for in the notice of election dated February 29, 1968. If, as seems to be conceded, the estate is such that the charitable excess as well as the intestate share of the surviving husband would exceed $10,000, the executor may pay said sum immediately, and such payment will be taken into consideration in the computation of the excess payment to charity to be distributed on the termination of the life estate.
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