Opinion
June 13, 1949.
Present — Nolan, P.J., Carswell, Sneed, Wenzel and MacCrate, JJ.
In a proceeding instituted by a surviving widow pursuant to section 145-a of the Surrogate's Court Act, decree of the Surrogate's Court, Suffolk County, adjudging that respondent is entitled, under the provisions of section 18 of the Decedent Estate Law, to elect to take her share of the estate of her deceased husband as in intestacy, and further providing that in allocating estate taxes the share of said taxes to be charged against respondent shall be in the proportion that the value of the property of the estate passing to her, less marital deduction in computing the Federal estate tax, and personal exemption of $20,000 in computing the New York estate tax, bears to the total value of the net taxable estate, insofar as appealed from, unanimously affirmed, with costs to respondent, and one bill of costs to appellants, payable out of the estate. The reference in paragraph (a) of subdivision 1 of section 18 of the Decedent Estate Law to deduction of "any estate tax" was not intended to effect a formula contrary to that set forth in section 124 of the Decedent Estate Law. The term "any estate tax" as used in paragraph (a) of subdivision 1 of section 18 of the Decedent Estate Law relates to a tax allocable to the share of the surviving spouse, theretofore determined.