Opinion
Argued April 20, 1965
Decided July 9, 1965
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JOHN T. CLANCY, S.
Henry N. Ess, III, Martin D. Heyert and Irvine D. Flinn for appellants.
Daniel Eisenberg and Sidney Eisen for respondent.
MEMORANDUM: We hold that a stipulation against the apportionment of accrued income, i.e., income earned by the corpus, but not yet payable to the trustee, does not, in and of itself, deprive the widow of the benefit of the income from a trust for life under section 18 of the Decedent Estate Law ( Matter of Byrnes, 260 N.Y. 465, 473-474; N.Y. Legis. Doc., 1930, No. 69, pp. 87-88) so as to give her a right of election.
In addition we hold that counsel fees should not be awarded out of the estate (Surrogate's Ct. Act, § 278; Matter of Liberman, 6 N.Y.2d 525, 530-531).
The order of the Appellate Division should be reversed and the matter remitted to the Surrogate's Court, Queens County, for the entry of a decree not inconsistent with this memorandum.
Judges DYE, FULD, VAN VOORHIS, BURKE, SCILEPPI and BERGAN concur in MEMORANDUM; Chief Judge DESMOND dissents and votes to reinstate the order of the Surrogate's Court.
Order reversed, in accordance with the memorandum herein, with costs to all parties appearing separately and filing separate briefs payable out of the estate, and matter remitted to the Surrogate's Court, Queens County, for further proceedings not inconsistent with the memorandum.