
    In the Matter of the Estate of Leopold Spingarn, Deceased.
    Surrogate’s Court, New York County,
    March 11, 1959.
    
      Lawrence I. Gerber for Howard Spingarn and another, as executors, petitioners.
    
      Herbert A. Mossier for Claire Spingarn and another, respondents.
    
      Julian 8. Bush for Celia Spingarn, respondent.
    
      Roy M. Cohn, as special guardian for James L. Spingarn and others, infants, respondent.
    
      Maclay, Morgan $ Williams (G. Bickerman Williams of counsel), for Pauline B. Paglin and others, respondents.
   Joseph A. Cox, S.

The first article of the codicil to the testator’s will bequeathed to the legatee therein named the sum of $20,000 “ in lieu of the gratuity which would otherwise be payable by reason of my membership in the New York Stock Exchange ”. At the date of the testator’s death the legatee was his wife and, as such, was paid a sum of $20,000 by the stock exchange.

Other than the legacy in the codicil, the will made no provision for the widow and she has elected, pursuant to section 18 of the Decedent Estate Law to take against the provisions of the will. If the legacy is effective, the widow will receive payment thereof and the difference between the amount of her legacy and her intestate share while if the legacy is ineffective, she will receive the identical aggregate amount as her intestate share. The question raised as to effectiveness of the legacy is of consequence only to determine whether she is entitled to interest on $20,000 as a legatee or as an electing spouse.

The provision for the legatee is quite analogous to a bequest in lieu of dower or other statutory benefit beyond the control of a testator and the intention expressed was that the legatee could not claim both the legacy and the gratuity (Matter of Rosenthal, 141 Misc. 404; Matter of Westerbeke, 143 Misc. 221, affd. 236 App. Div. 856, affd. 262 N. Y. 466; Hatch v. Bassett, 52 N. Y. 359). Having accepted the gratuity, the widow is not entitled to the legacy.

The gratuity was no part of the testator’s estate and was not his to bequeath but had he this disposition of the fund, it would not be considered in determining the extent of the property bequeathed to the widow by the will (Matter of Litt, 73 N. Y. S. 2d 368; Matter of Weil, 73 N. Y. S. 2d 370). The full intestate share of the widow is to be computed upon the basis that the will conferred no benefit to her.

The proposed decree is to be resubmitted with the computation of the elective share made in accordance with this opinion. A computation of the contributions required of the legatees to comprise the elective share and a computation of the average rate of return on principal is to be submitted to determine the widow’s participation in income earned during the estate administration. The executors will be permitted to hold a reserve for tax contingencies.

Proceed accordingly.  