The decedent, a domiciliary of Virginia, died October 4,1964. His estate was made up of property in Virginia and in New York. The property here, which in value is the larger part of the estate, consisted of securities deposited with a New York bank. His will provided that it should be construed, regulated and determined by the laws of the State of New York.
The will contains a testamentary trust for the benefit of his widow which would fulfill the requirements of section 18 of the Decedent Estate Law. However, it is conceded that under the laws of the Commonwealth of Virginia the widow has the absolute right to renounce the will and to assert her statutory rights to her proportionate share of the estate outright. It is further conceded that timely notice of her election to do so was given. The purpose of this proceeding is to determine whether under these facts she is entitled to renounce.
It must be quite clear that in the resolution of -this question it is immaterial whether the provision made for the widow was equitable or inequitable, or how it compares in actual monetary return with what she would be entitled to after renunciation. While such considerations would be pertinent to an inquiry as to whether the disposition was permissible under our laws, no such issue is here presented. The testator’s power to make the dispostion that he did does not depend on whether the trust he created provided an equivalent inheritance to his widow but rather on whether he had the power, against her wishes, to provide for her by trust at all.
Concededly, under the laws of the domicile of both parties he had no such right. In the absence of statute there could be no question that the law of the testator’s domicile would control (Restatement, Conflict of Laws, § 301). The very statute which is relied on to provide the exception enunciates this established *57rule. ‘1 Except where special provision is otherwise made by law, the validity and effect of a testamentary disposition of any other property [other than real estate] situated within the state * # * are regulated by the laws of the state or country, of which the decedent was a resident, at the time of his death.” (Decedent Estate Law, § 47.) The same statute, however, provided that wherever a nonresident “ shall have declared in his will and testament that he elects that such testamentary dispositions shall be construed and regulated by the laws of this state, the validity and effect of such dispositions shall be determined by such laws. ’ ’
Does or can this provision go to the extent of depriving a renouncing spouse of her rights under the laws of the jurisdiction where she resides or, conversely, does it empower the testator to make testamentary provisions in derogation of these rights and enable him to do what he otherwise could not? We believe that it does not. Primarily, the right of a widow to inherit despite the will is not a ‘ ‘ testamentary disposition ’ ’ in any sense. It is a restriction on the right to make a testamentary disposition. Where the law of her domicile gives a widow no right to take against the will, she gains none from the fact that the property and administration are in a jurisdiction where there is such a right (Matter of Slade, 154 Misc. 275, Foley, S.; Matter of Thorold, 147 Misc. 899). “ That decision [Matter of Slade] is in full accord with the generally accepted rule that a widow’s right to take personal property against the will of her husband is regulated by the law of his domicile. ’ ’ (Matter of Sahadi, 30 Misc 2d 166, 167-168, affd. 283 App. Div. 1012.) On the other hand, where the laws of the widow’s domicile do give the widow such a right, the fact that the property and administration are here does not deprive her of that right (Flatauer v. Loser, 156 App. Div. 591, revd. on other grounds 211 N. Y. 15). It would therefore appear that the right of election is one that arises not out of testamentary rights but contrary to them.
“The condition clearly was such as New York might, without restraint from the Federal Constitution, annex to the privilege of making a will under its law. Its effect was to continue as obligations of his estate social responsibilities which he had assumed during life, unless they had been waived with required formality.” (Irving Trust Co. v. Day, 314 U. S. 556, 563.) Our Court of Appeals had taken a similar view of the nature of the right of election. “The inconsistency in our old law which compelled a man to support his wife during his lifetime *58and permitted him to cut her off with a dollar at his death, has given way .to a new public policy which no longer permits a testator to dispose of his property as he pleases.” (Matter of Greenberg, 261 N. Y. 474, 478.)
It therefore appears that the domiciliary State of the testator may place limitations on his right to dispose of his property by will; and that the right of election to take against the will is such a restriction, and whether such a right exists, and the extent of it, is determined by the law of the domicile.
Nothing in section 47 of the Decedent Estate Law changes this. Primarily, the section does not apply because the right of election is not a .testamentary disposition. The learned Surrogate so recognized but concluded that it affected the validity and effect of a testamentary disposition. But to so construe the section would be to give the testator the right to nullify the applicable law and substitute another at his sole election. The reliance placed by the Surrogate on the decisions in Wyatt v. Fulrath (16 N Y 2d 169) and Matter of Smith (182 Misc. 711) is misplaced. The former case did not involve a testamentary disposition but rather the right of survivorship in a joint account. But even eliminating this distinction, a far more compelling one exists. In Wyatt both spouses acted in concert in the intial application to have New York law apply to the property in question. In Smith, the widow adopted the testator’s election to have New York apply. Even with this distinction that decision has been severely criticized. (Scoles, Conflict of Laws and Elections in Administration of Decedents’ Estates, 30 Ind. L. J. 293, 307.) And today the decision could not be made. The right of election pursuant to New York law is now limited to spouses of decedents who were domiciled in New York at the time of death (Decedent Estate Law, § 18-c, subd. 6). There is no exception for decedents who elect to have their wills governed by New York law pursuant to section 47, though this possibility was before the Legislature .(see Temporary State Comm. on Law of Estates, Fourth Report, N. Y. Legis. Doc., 1965, No. 19, p. 148).
It would follow that section 47 does not effect any change in the basic law and the election right of the widow, governed by the law of the testator’s domicile, should be recognized.
The decree entered January 4, 1967, denying appellant the right to elect against the will of her deceased husband should be reversed, on the law, and the relief granted.