13 N.Y.2d 194 (1963)

A testamentary gift conditioned on a surviving spouse “having a right of election” is satisfied when the spouse possesses the legal right to elect against the will, regardless of whether that right is actually exercised.

Summary

This case involves the interpretation of a will provision granting the testator’s wife a share of his estate in trust, but only if it was determined she had a right of election against the will. The wife failed to file a timely election. The court had to determine whether the wife’s failure to exercise her right of election barred her from receiving the testamentary gift. The New York Court of Appeals held that the bequest was conditioned solely on the determination that the wife had a right of election, not on the exercise of that right. Therefore, the wife was entitled to take under the will despite her failure to file an election.

Facts

Frederick Collins’ will contained a provision for his wife, Lucia, stating that if she survived him and it was determined she had a right of election against the will, she would receive a share of his estate in trust, equivalent to her intestate share under Section 18 of the Decedent Estate Law. Collins stated he believed she did *not* have this right. Lucia survived Collins, but failed to file a timely notice of election to take against the will. The lower courts determined that this failure barred her from taking under the will. It was settled that Lucia was lawfully married to the decedent at the time of his death.

Procedural History

The Surrogate’s Court initially addressed the issue of Lucia’s right to take a statutory share. The Appellate Division affirmed that Lucia was barred from taking a statutory share due to her failure to file a timely notice of election. The Court of Appeals dismissed a prior appeal related to that issue. The case then proceeded to the Court of Appeals solely on the issue of whether Lucia’s failure to elect also barred her from taking a testamentary share under the will.

Issue(s)

Whether the testator’s bequest to his wife, conditioned on a determination that she “has a right of election,” requires the wife to actually exercise that right by filing a notice of election, or whether the bequest is satisfied by the mere existence of the right to elect, even if unexercised?

Holding

No, the bequest was conditioned solely on the determination that the wife *had* a right of election, not on the actual exercise of that right. Therefore, the wife’s failure to file an election does not bar her from taking the testamentary share. This is because there is a difference between having a right and exercising that right.

Court’s Reasoning

The court focused on the specific language of the will, noting the testator conditioned the bequest on a determination that his wife *had* a right of election. The Court emphasized the distinction between *having* a right and *exercising* that right. The statute itself distinguishes between the “right of election” and the exercise of that right. The court found that the testator could have conditioned the bequest on the *exercise* of the right, but he did not. To interpret the will as requiring the exercise of the right would be to add a condition not present in the will’s language. The court stated, “To say… that testator intended that respondent-appellant would not receive the bequest unless she had exercised her right of election is to ignore the very words chosen by the testator.” Courts construe will provisions that tend to defeat estates strictly, and will not interpret them to work a forfeiture unless the testator’s overriding intention is unmistakably clear. Here, no doubt existed. The court cited *Matter of Uhlfelder*, *Matter of Fischer*, *Matter of Halpern*, and *Matter of Clark* to support its holding.