In re the Estate of Austin

John D. Bennett, S. In this accounting proceeding the questions presented relate to the effect of the widow’s successful exercise of her right of election upon the terms of the residuary estate which had been placed in trust for her benefit. By paragraph ‘ ‘ Fourth ’ ’ of the will, the testator gave his residuary estate to his trustees with income payable to his wife for life. Upon her death subparagraph “ C ” directs, insofar as is relevant to the facts here, that the residuary trust be divided into as many separate and equal trust funds as shall equal in number the testator’s surviving nephews and nieces of whom there are eight. By order dated December 14, 1964 this court determined that the widow’s election to take against the will entitled her to receive outright and free of trust her intestate share. The widow’s successful election effected a nullification of all her trust rights (Matter of Leporati, 126 N. Y. S. 2d 742), and defeated the intention of the testator in part. It is the court’s function to endeavor to ascertain his primary intention and to carry it into effect as far as it can be done with a minimum disturbance of the general plan (Decedent Estate Law, § 18, subd. 2). Although the testator provided that the secondary trusts for the benefit of his eight nephews and nieces were to be erected upon the death of his wife, it is obvious that his intention was to provide for such disposition upon the termination of the widow’s interest in the trust. “ The exercise of her right of election as effectively terminates her interest in said trust as the conditions prescribed by testator ” (Matter of Rosenzweig, 4 Misc 2d 142, 144, citing Matter of Devine, 147 Misc. 273, and Matter of Levy, 171 Misc. 431). The court accordingly holds that the eight separate secondary trusts are accelerated and the income thereof payable to the [974] testator’s nephews and nieces. The widow’s trust having been excised, the secondary trusts will continue for the lives of the respective nephews and nieces only. The incidental relief requested, including permission to the petitioner to resign as trustee, is granted.