In re the Accounting of Lincoln Rochester Trust Co.

Decree reversed on the law and facts, with costs to appellant payable out of the estate, and matter remitted to the Surrogate’s Court of Monroe County to enter a decree granting the widow right of election. Memorandum: The limitation placed by the testator upon the disposition of the income from the trust fund created for the wife’s benefit deprives her of the right to the use of all or any particular share of the trust. The purely contingent benefit of additional income that she might receive above that allowed her by the terms of the will is not a valid substitute for her intestate share (Matter of Bommer, 159 Misc. 511, 521). All concur. (The decree adjudges that testator bequeathed in trust for his wife an amount *847greater than her intestate share and that the widow is not entitled to a right of election.) Present — Taylor, P. J., McCurn, Larkin, Vaughan and Kim-ball, JJ. [191 Misc. 1016.]