Becker's Estate, In re

• Decision Date: 23 July 1965
• Parties: In re BECKER'S ESTATE. Application of Melba Minnie ZUCKER and Daniel Zucker as Executors of the Estate of Hyman Becker, Deceased, for a determination as to the validity or effect of an election by Sonia Becker to take an intestate share against the provisions of the Last Will and Testament of said deceased, and for a determination as to the validity, construction and effect of disposition of property contained in said Last Will and Testament. Surrogate's Court, Kings County
• Court: New York Surrogate Court

Page 22

263 N.Y.S.2d 22

47 Misc.2d 443

In re BECKER'S ESTATE.

Application of Melba Minnie ZUCKER and Daniel Zucker as

Executors of the Estate of Hyman Becker, Deceased, for a

determination as to the validity or effect of an election by

Sonia Becker to take an intestate share against the

provisions of the Last Will and Testament of said deceased,

and for a determination as to the validity, construction and

effect of disposition of property contained in said Last

Will and Testament.

Surrogate's Court, Kings County.

July 23, 1965.

Schwartz & Frohlich, New York City, for petitioners (executors).

Myron Goldman, New York City, for respondent (widow).

Theodore D. Ostrow, Brooklyn, special guardian.

EDWARD S. SILVER, Surrogate.

In this proceeding the executors seek a determination as to the validity and effect of the notice of election filed by the testator's widow, and for a construction of article Sixth of the will and directing the disposition of the excess income that may be derived from the trust created thereunder. The gross estate left by the testator is approximately $740,000.

The testator died on June 7, 1964 survived by his widow and a daughter. In his will he provides for the payment of debts and funeral expenses; bequeaths his household furniture, furnishings and effects and the sum of $2,500 to his wife; nominates his daughter and son-in-law as executors and trustees; and by article Fourth bequeaths one-third of his residuary estate to his trustees 'to be held by them during the lifetime of my wife * * * and during that period to pay the income thereof to my wife * * * monthly.' After providing, in article Fifth, for the payment of a legacy in the sum of $3,000 to his brother, the testator, in article Sixth, bequeaths 'all the rest, residue and remainder of the two-thirds (2/3) of my residuary estate to my trustees, in trust, as a separate fund to invest and re-invest the same and collect the income therefrom, and out of the net income, or if the income is insufficient, then out of principal to pay to my daughter, * * *, the sum of Three Thousand One Hundred Twenty ($3,120.00) Dollars annually for a period of ten (10) years from the date of my death in equal monthly installments, and upon the date of expiration of the said ten (10) years to pay and distribute the remaining principal as follows, to wit: three-fourths (3/4) thereof to my said daughter * * * and one-fourth (1/4) thereof equally among my grandchildren living at the time of the date of expiration of said ten (10) years.' The testator further provides in said article Sixth that in the event his daughter survives him but dies prior to the expiration of said ten year period the balance of the principal of said trust and accrued interest shall be paid to his daughter's issue living at the time of her death, and in the event his daughter predeceased him, 'in lieu of the trust herein created, I give, devise and bequeath the two-thirds (2/3) of the residuary estate after the payment of the Three Thousand ($3,000.00) Dollars to my brother * * * as herein provided, to the issue of my daughter * * *, equally, share and share alike.' In article Seventh the testator authorizes his executors and trustees to sell any of his property for the purpose of preserving or enhancing their value; and article Eighth directs 'that all income, or annuity payable under any of the Trusts created by this Will shall be computed and accrued from the date of my death and that payment of such income or annuity shall be begun as soon as practicable after my death.'

The issues raised by widow's answer are that she is entitled to elect to take her share of the testator's estate as in intestacy, i. e., '$2,000 plus one-half of the residue', because the will neither creates nor gives her the equivalent of such intestate share nor does it sufficiently provide for her so as to defeat the right of election accorded to a surviving spouse pursuant to section 18 of the Decedent Estate Law; that section 83 of the Decedent Estate Law, as amended, does not reflect the true intention of the Legislature and attacks that section as being violative of her rights under the Federal and State Constitutions, and as denying her equal protection under the law, and that section 83 of Decedent Estate Law is discriminatory and creates a double standard for surviving spouses; that the provisions of the will do not create a separate and independent trust for the benefit of the widow as required under section 18; that the provisions of the will permit invasion of the trust principal in violation of said section 18; that the provisions of the will are 'ambiguous and interwoven, one with the other, and cannot be separated', and lastly, that the income in excess of $3,120 per annum, earned by the trust directed to be created for the benefit of the testator's daughter in article Sixth of the will, must be distributed as in intestacy pursuant to section 83 of the Decedent Estate Law because the will is silent as to the distribution of such excess income.

The executors assert that the provisions of the will relating to the widow satisfy in all respects the requirements of sections 18 and 83 of the Decedent Estate Law and hence her notice of election is of no effect. With respect to the undisposed income, they urge that it must be distributed, pursuant to section 63 of the Real Property Law, to the persons presumptively entitled to the next eventual estate, that is, to the testator's daughter and to her children. The special guardian for the testator's grandchildren takes a position similar in all respects with that taken by the executors.

The court is clearly of the opinion that the provisions for the widow in the will fully satisfy the requirements of subdivision 1(d) of section 18 of the Decedent Estate Law which reads as follows: 'Where the will contains an absolute legacy or devise, whether general or specific, to the surviving spuse, of or in excess of the sum of twenty-five hundred dollars and also a provision for a trust for his or her benefit for life of a principal equal to or more than the excess between said legacy or devise and his or her intestate share, no right of election whatever shall exist in the surviving spouse.'

Subdivision 1 of section 83 of the Decedent Estate Law, as amended by chapter 689 of the laws of 1959 and by chapter 712 of the laws of 1963, provides that in cases where there is only one surviving child or the issue of only one predeceased child and no issue of any other predeceased children, the surviving spouse shall take one-half of the net estate instead of one-third as previously provided. Thus the language of subdivision 1 of section 18 of the Decedent Estate Law, giving to the surviving spouse a personal right of election 'to take his or her share of the estate as in intestacy', might understandably be construed that a surviving spouse could elect to take her intestate share of one-half of the estate. However, this apparently clear language of section 18 of the Decedent Estate Law must be read in conjunction with the last proviso of subdivision 1 of section 83 of the Decedent Estate Law, as amended, which reads as follows: '* * * provided, however, that the provisions of this sentence [giving one half instead of one third] * * * shall not apply in the instance of any exercise of a right of election pursuant to section eighteen of this chapter.' (Matter of Weiss' Will, 33 Misc.2d 641, 226 N.Y.S.2d 351; Matter of Trubenbach's Estate, 35 Misc.2d 318, 230 N.Y.S.2d 322.) It has been held that the phrase 'intestate share', as used in section 18, are words of art and not descriptive of the share taken (Matter of Goldsmith's Estate, 177 Misc. 298, 30 N.Y.S.2d 474). In connection with his approval of the amendment, Governor Rockefeller, in his message dated April 22, 1959, stated in part as follows: 'The primary purpose of this bill is to increase the intestate share of a surviving spouse from one-third to one-half of the estate when the decedent is survived by a spouse and not more than one child or not more than the issue of one child. The desire is to avoid the anomalous situation of an only child receiving two-thirds of the estate of a decedent and the widow, who often must care for the child, receiving one-third. * * *. 'The bill would not be applicable to the exercise of a surviving spouse's right of election under section 18 of the Decedent Estate Law.'' (Matter of Weiss' Will, supra, 33 Misc.2d p. 642, 226 N.Y.S.2d p. 352.)

The Third Report of the Commission on Estates, Legislative Document 1964, No. 19 (March 31, 1964) at page 193 (781) describes the New York Law as follows: 'Then, too, amendments were made in 1959 and in 1963 to section 83 which changed the intestate share of the surviving spouse. The 1959 amendment provided for an equal division between the surviving spouse and a single child but specifically stated, and the courts have held that the elective share is still one-third in such cases. The 1963 amendment did not change this in any respect. Thus the elective share is still one-third, regardless of the number of descendants there are. In all other cases it is limited to one-half of the net estate as defined by the statute.' (Emphasis supplied.) If at a first reading sections 18 and 83 might appear inconsistent, a study of the legislative descussion in connection with its enactments, the Governor's message with respect thereto, and the authorities interpreting the sections with which we are concerned removes all doubt as to the meaning and purpose of the sections now under discussion.

Nor does the court find any merit to any of the constitutional issues raised by the widow. In Matter of Adams' Estate, 182 Misc. 937, at pages 940, 941, 45 N.Y.S.2d 494, at page 498, affd. 267 App.Div. 985, 48 N.Y.S.2d 801, mot. for lv. to appeal denied 268 App.Div. 849, 50 N.Y.S.2d 673, certiorari denied, Adams v. City Bank Farmers Trust Co., 324 U.S....