
    In the Matter of the Estate of Martin McKenna, Deceased.
    Surrogate’s Court, New York County,
    August 11, 1937.
    
      Hieronimus A. Herold, for executor, petitioner.
   Delehanty, S.

Deceased’s will provides for his wife in the following text: First, after my lawful debts are paid, I give to my wife, Kate McArdle McKenna, the amount or share of my estate provided by law.” The balance of the estate is given to a grandniece whose husband is named executor of the will.

The executor asks construction of the will and urges that the widow of deceased is deemed to have elected against the will and hence to be entitled to one-half of the estate, the remaining half going to the grandniece. The court holds the contrary. The true meaning of the will is that deceased gave to his wife the share in his estate fixed by section 83 of the Decedent Estate Law. It is incongruous to say that the gift under the will is measured by a statutory right to take against a will.

Submit decree directing distribution of the net estate in the proportions fixed by section 83 of Decedent Estate Law.  