(dissenting). Prior to 1930, when section 124 of the Decedent Estate Law was enacted, estate taxes were ordinarily payable “ before determination and computation of the shares payable to individual legatees ” (Matter of del Drago, 287 N. Y. 61, 71, revd. on other grounds 317 U. S. 95). By virtue of said statute, equitable proration of Federal and State estate taxes among the beneficiaries of the estate is now required, “ except in a case where a testator otherwise directs in his will ”.
In this case the testator, who died on June 12, 1949, leaving him surviving his widow and two sisters, directed in paragraph Third of his will that all estate taxes ‘‘ shall be paid out of my residuary estate ”. The full text of this paragraph and the substance of the remaining paragraphs of his will are set forth in the prevailing opinion.
Paragraph Third of the will is now before us for construction, and we are all agreed that, standing by itself, it is a clear direction against the use of the tax apportionment formula prescribed in section 124 of the Decedent Estate Law. But, say the *252majority, there is an inconsistency between this paragraph and the later paragraphs Fifth, Sixth and Seventh, with resultant ambiguity.
I cannot follow this reasoning. The testator had a perfect right to direct that all estate taxes be paid out of his residuary estate, both before and after the enactment of section 124. That statute provides for equitable proration only where a testator does not otherwise direct in his will. Here he has made such direction in the clearest possible language. To say that such direction may not be heeded here is virtually to hold that no language can be safely framed to come within the exception of section 124.
Its application to the disposition of his estate under the terms of his will is unmistakably plain. After providing for the payment of his debts and expenses, and before making any dis-positive provisions, he wills and directs that all estate taxes be paid out of his residuary estate. At the same time he makes it clear that the “ bequests hereinafter made shall be paid over ” and “ the trusts hereinafter created shall be set up * * * freed from all ” estate taxes. He next gives $50,000, free of taxes, as part of the trust for the benefit of his wife. Only then, after providing for the payment of (1) debts and expenses, (2) estate taxes, and (3) said specific sum, may the trusts be set up out of “ all the rest, residue and remainder of my estate ” for the widow and two sisters, and when the trusts are set up they are free of taxes, which have already been provided for in the prior paragraph Third of the will. It is manifest that he did not wish to disturb the precise proportions of his trust plan in giving $50,000 plus one half to his wife, and an equal one half to his sisters.
The widow thus receives substantially more than either her elective share under section 18 of the Decedent Estate Law (one half of the estate), or her intestate share under section 83 (subd. 4) of the Decedent Estate Law (one half of the estate plus $10,000), to wit: $50,000 in addition to one half (properly in trust) of the remaining residuary estate. The portion of the taxes which she seeks to avoid, and which we are told will amount to $23,000, will as directed first come out of the residuary estate, and, though she will not receive the life income on said *253$23,000 which she would have had if it were not for paragraph Third, that is so because the husband directed otherwise in his will.
Thus there is neither inconsistency, paradox, ambiguity nor inequity in this will, and the testator’s clear intention should not be struck down and utterly disregarded. We have no right to speculate as to any alleged ambiguity concerning his motive. “ The intention of a will-maker is to be found in the words used in the will, and when these are clear and definite there is no power to change them ” (Matter of Watson, 262 N. Y. 284, 293; Matter of Roth, 291 N. Y. 1, 6). When a testator’s intent is manifest, “ it is quite unnecessary to discuss the decisions made in other eases ” (Matter of Pulis, 220 N. Y. 196, 202).
I would reverse, and heed the testator’s will.
Lewis, Ch. J., Desmond, Dye, Fuld and Van Voobhis, JJ., concur with Conway, J.; Fboessel, J., dissents in opinion.
Order affirmed.