
    In the Matter of the Estate of F. Cliffe Johnston, Deceased.
    Surrogate’s Court, New York County,
    July 22, 1955.
    
      H. Boardman Spalding for Grace P. Johnston, as executrix of F. Cliffe Johnston, deceased, petitioner.
    
      Borton Baum, special guardian for Constance A. Kiesewetter and others, infants, respondents.
   Frankenthaler, S.

The court holds that the surviving spouse has an absolute right of election to take her intestate share and has validly exercised such right. The provisions of the will which give to the widow only a life interest in a nonincome producing piece of real property constituting a small portion of the estate, subject to her paying all taxes, assessments, insurance and other carrying charges thereon and the upkeep and repair thereof, do not satisfy the requirements of section 18 of the Decedent Estate Law, as they impose conditions or contingencies by which the life estate may be terminated during her lifetime (Matter of Byrnes, 141 Misc. 346, affd. 235 App. Div. 782, affd. 260 N. Y. 465). If the widow were unable to pay the high upkeep on this summer estate she would under the terms of the will lose her right to occupy it. Such a gift instead of being a benefit might well turn out to be a burden. The widow under the statute is entitled to a proportionate part of a fair cross-section of the estate and she cannot be saddled with a specific asset which possesses an income value disproportionate to the other assets of the estate. (Matter of Reich, N. Y. L. J., July 30, 1954, p. 5, col. 4; Matter of Bommer, 159 Misc. 511.)

Submit decree on notice accordingly.  