
    In the Matter of the Construction of the Will of Manuel J. Marxuach, Deceased.
    Surrogate’s Court, New York County,
    November 8, 1957.
    
      Sidney J. Shaw and Sanford Solars for Manufacturers Trust Company, as executor, petitioner.
    
      Carson Be Witt Baker, special guardian for John K. McManus and another, infants, respondents.
   Joseph A. Cox, S.

The executor has petitioned for a construction of paragraph Fourth of decedent’s will. After directing that debts and funeral expenses be paid, the testator bequeathed his personal and household effects to his wife in paragraph Third of his will. Paragraph Fourth thereof reads as follows: ‘ ‘ In addition to the bequest made to her in Article ‘ THIRD ’ hereof, I give, devise and bequeath to my wife, forty (40) per cent of my net estate computed before payment of any Federal or State estate taxes. ’ ’

In paragraph Fifth, he gave a general legacy of $5,000 to his stepdaughter and in paragraph Sixth he established a trust of $70,000 for the benefit of his son for life. In paragraph Seventh, the testator disposed of his residuary estate by giving one half to one daughter outright and the other half to another daughter in trust. In paragraph Eighth, the testator stated that the provisions for his wife were in lieu of dower and in bar of her right of election.

The question presented is whether the benefits in paragraphs Third, Fifth and Sixth should be deducted, together with debts, funeral and administration expenses, from the gross estate in computing the widow’s 40% of the net estate. The court holds that those legacies are not to be deducted. The net estate is the gross estate less debts, funeral and administration expenses (Matter of Mass, 65 N. Y. S. 2d 93; Matter of Goldstein, 109 N. Y. S. 2d 553; see, also, Matter of Petroff, 5 Misc 2d 318, 320). A reading of the entire will shows that the testator was cognizant of the difference between a net estate and a residuary estate.

Submit decree on notice construing the will accordingly.  