The court is unanimously agreed that the matter of the construction of paragraph second of the testator’s last will and testament is open for consideration at this time. We are not in agreement, however, as to the proper interpretation of and the effect to be given the said paragraph.
The said second paragraph reads as follows: “second: In the event that lucia Baldwin collins survives me and in the event that it be determined that she has a right of election against or in absence of testamentary provision for her benefit in this my last Will and Testament, which I believe is not the case, and only in such events, I give, devise and bequeath to my Executors hereinafter named an amount equal to her share of my estate as in intestacy, as defined in Section 18 of the Decedent Estate Law, in trust, nevertheless, for and during her life, to invest the fund and keep it invested in such securities only as are authorized by law for the investment of trust funds, and to pay the income derived therefrom to her for and during her natural life; and upon her death to divide and pay over and I give, devise and bequeath the principal to my sons Frederick Arthur collins, jr. and hunt turner collins, share and share alike, and, should either of them not be living upon her death, I give, devise and bequeath such portion thereof as he would have taken if living to Ms issue living upon the termination of the trust, share and share alike per stirpes et non per capita.”
*309It having been determined that the respondent was duly married to, and is the widow of, the testator, thus having as of the time of his death a right of election against his will, I reach the conclusion that she is entitled to the trust benefits set up by the said second paragraph; and that she did not forfeit her rights thereunder by her action or inaction after the testator’s death.
The widow’s right of election was a present right, vested as of the date of testator’s death, to be exercised on the probate of his will; and as to this there can be and is no question. (See Decedent Estate Law, § 18.) On the other hand, upon the probate of his will, she also had a right by virtue of the terms thereof, to forego her right of election and to take under the will in lieu of taking against it. The choice was hers, alone, to make. Her right to elect against the will was a ‘ ‘ personal right ” (see Decedent Estate Law, § 18) and she alone could enforce or waive it.
If the widow so chose, she was entitled, on the probate of the will, to claim the trust benefits provided for her by said paragraph second. She could have said to the executor, “I waive my right of election and I want what the will gives me in lieu thereof and, then, she would be entitled to take under the will. Even if she had duly filed a notice of election she would have been entitled as a matter of right to timely withdraw the same and to take the trust benefits. (Matter of Allan, 5 N Y 2d 333.)
So, clearly, it was the absolute right of the widow, exercisable on probate of the testator’s will, either to take as the trust beneficiary under his will or to take, as against the will, her intestate share in his estate. To take the intestate share in lieu of the trust benefits, it was necessary that she timely proceed with a notice of election as provided by statute. But, as we have determined on a prior appeal, she failed to so proceed and thereby her right to take against the will was barred. The effect of this determination, however, was merely to preclude her from taking “ her share of my estate as in intestacy ” as provided by the will. See section 18. It should not and does not bar her from testamentary rights which were vested in her on the death of the testator.
Under the construction adopted by the majority, the testamentary provisions for the benefit of the widow, instead of being vested, were determined to be contingent upon her duly perfecting a right of election to take against these very provisions. To so hold, flies in the face of the cardinal rule of construction that, absent the expression of a contrary intent, a will is to be con*310strued as speaking from the date of death of the testator and not in the light of events occurring subsequent thereto. That the testator here was speaking of existing conditions and not in the light of what might happen after his death is clear from his use of the words in the present tense. The use of the word “ has ” in the phrase “ that she has a right of election ” and the use of the word “ is ” in the phrase “ which I believe is not the case ” indicate that the testator had in mind a present state of affairs and therefore, such words are referable to the time when the will speaks, namely, the time of death.
In fact, the construction laid down by the majority has the tendency to nullify the particular provisions of paragraph second. To hold that the widow must have duly exercised her right of election in order to take under these provisions renders them- ineffective for any purpose. Under such construction, the widow, having a right of election, would not take under the will under any circumstances. She would not take if she failed to exercise such right; and, of course, she would not take under the will if she did exercise such right for then she would take her intestate share. Thus, clearly, such a construction, anomalous in effect and having the result of depriving the widow of any and all interest in the estate of the decedent, should be avoided.
It is all very well to read between the lines and look to the extrinsic circumstances, and then to say that one is convinced that the testator did not intend to have his widow take any part of his estate. But we are bound by and should give effect to the will as it is written. Here, the testator’s language merely indicated that he wanted to reduce the respondent’s share in his estate as his widow to the minimum allowed by law; and we should not be constrained by the extrinsic circumstances to rewrite the will in a manner to entirely cut off the widow from sharing in the testator’s estate.
In view of the foregoing, I would hold that the respondent widow is entitled to the trust benefits provided by paragraph second of the testator’s last will and testament and I would accordingly modify the decree appealed from and the decree of August 3,1960.
Breitel,- J. P., and Valente, J., concur with Stevens, J. ; Eager, J., dissents in opinion in which McNally, J., concurs.
Decree, so far as appealed from by the respective parties, affirmed in all respects, with costs to the executors, payable out of the estate.