The question in this ease is whether an absolute election has been defeated by a trust which in form complies with the requirements of section 18 (subd. 1, par. [d]) of the Decedent Estate Law, but is composed of stock which is presently nonproductive of income. The Surrogate, by section 18 (subd. 1, par. [h]), is. vested with a general supervisory power to make such “ direction consistent with the provisions and purposes of this section as the court may deem necessary for the protection of the surviving spouse.” The surviving spouse is thus amply protected and, at the same time, the testator may exercise reasonable flexibility in the disposition of his estate.
The Clark will, while declaring as its dominant intent the continued operation of the Clark Music Company, nevertheless subordinates that intent to “ the best interests of my estate.” The Surrogate may therefore direct the sale of unproductive assets without accomplishing a complete revision of the will or effecting an unnecessary disruption of the testamentary plan. Where the trust is adequate in form, an absolute election should not be granted so long as the Surrogate may protect the widow’s rights by the exercise of the supervisory power conferred by section 18 (subd. 1, par. [h]) in a manner not inconsistent with the terms of the will.
The cases relied upon by the widow are not opposed to this principle for they relate to situations in which the intestate share was subject to diminution or “whittling away” under the terms of the will (Matter of Wittner, 301 N. Y. 461; Matter of Matthews, 255 App. Div. 80, affd. 279 N. Y. 732), or where the protection of the spouse’s rights would require the Surrogate’s Court in effect to rewrite the terms of the will (Matter of Schrauth, 249 App. Div. 846), or would require the court to exercise powers in excess of those conferred by section 18 (subd. 1, par. [h]). (Matter of Shupack, 206 Misc. 875, mod. 1 A D 2d 841; Matter of Halperin, 201 Misc. 763.)
The reversal of the order destroys the prerogative of the testator to exercise reasonable flexibility and discretion in his dispositive plan.
I, therefore, dissent.
All concur, except Williams, J., who dissents and votes for affirmance, in a separate opinion. Present — McCurn, P. J., Vaughan, Kimball, Wheeler and Williams, JJ.
Decree reversed on the law and facts and application granted, with costs to all parties filing briefs payable out of the estate.