Opinion
July 6, 1972
Appeal from the Niagara County Surrogate's Court.
Present — Goldman, P.J., Marsh, Gabrielli, Cardamone and Henry, JJ.
Decree unanimously reversed on the law and facts, with costs to all parties filing briefs, payable out of the estate, and matter remitted to Niagara County Surrogate's Court for further proceedings in accordance with the following Memorandum: We are here concerned with the construction of a will which provided that testator's wife was to receive 40% of the adjusted gross estate and his two children were to receive 60% and 40% of the residuary estate, respectively. The testator further directed that "each share or portion of my estate which is distributable to any person under the terms of this, my Will, * * * shall bear its proportionate share of all obligations of mine secured * * * against any of my personal property, and shall bear its proportionate share of all inheritance, estate * * * and death taxes * * * imposed upon or in relation to any property included in my taxable estate". The Surrogate determined that from the wife's 40% share of the adjusted gross estate there should also be deducted 40% of the secured debts. This was error. By receiving 40% of the adjusted gross estate, the surviving spouse's share had been, in effect, diminished by 40% of the secured obligations. This reduction should have been computed as a credit against what was finally determined to be the spouse's proportionate share of the secured obligations. Such a conclusion is consistent with the unambiguous and controlling language of the will ( Matter of Watson, 262 N.Y. 284, 294; Matter of Debout, 35 A.D.2d 1067). Finally, the testator's wife and two children should bear their proportionate share of all estate taxes due with any benefit the estate might receive because of the relationship of each beneficiary to the testator, inuring to the benefit of that beneficiary ( Matter of Shubert, 10 N.Y.2d 461, 473; Decedent Estate Law, § 124, subd. 3, par. [ii]; EPTL 2-1.8, subd. [c], par. [2]).