
    In the Matter of the Accounting of David Hand, as Executor of Jacob Rosenberg, Deceased.
    Surrogate’s Court, Kings County,
    November 26, 1958.
    
      
      Hand & Hand for David Hand, petitioner.
    
      Bachrach $ Bisgyer for Jewish Chronic Disease Hospital.
    
      OusiJc <& BouJcstein for Creta Turvie, as Vice Consul of Israel for Girls Orphan Home of Jerusalem.
    
      Lillian Rosenberg, respondent in person.
   Maximilian Moss, S.

It appears from this executor’s account that testator’s widow has elected to take her intestate share against the will. None of the parties has controverted the validity of her notice of election. The will gives her a legacy of $5,000 chargeable on a one-half interest in a parcel of real property of the testator, and the residuary estate to two named charitable institutions. Testator was survived by his widow but left no descendants, no adopted children and no descendants of adopted children. Schedule F of the account shows that the executor proposes to distribute the net estate by allowing the widow the first $10,000 thereof and one half of the residue, evidently applying the provisions of subdivision 4 of section 83 of the Decedent Estate Law. However, this case is controlled by section 18 (subd. 1, par. [a]) of the Decedent Estate Law and distribution shall be made accordingly. The section provides as follows: “In exercising the right of election herein granted a surviving spouse shall in no event be entitled to take more than one-half of the net estate of the decedent, after the deduction of debts, funeral and administration expenses ”. In computing the widow’s share of one half, the amount found to be due her shall include her $5,000 legacy under the will.

The compensation of the attorneys for the executor is fixed and allowed in the sum of $1,000 and the disbursements incurred are allowed in the amount requested.

Settle decree on notice.  