I dissent and would affirm upon the opinion of Surrogate Cox. However, I wish to add that if *59section 47 of the Decedent Estate Law is to be given effect, we cannot refuse to do so because of the consequences. That is a matter to be considered by the Legislature and not by the courts. Section 47 of the Decedent Estate Law provides that testamentary dispositions of a nonresident “ shall be construed and regulated by the laws of this state ” where the testator shall have in his will expressed his election that it be so done.
The cases which have considered the effect of section 47 of the Decedent Estate Law have recognized that such section might be used by a testator to avoid restrictions on testamentary dispositions of property imposed by the laws of their own domiciles. In Matter of Cook (204 Misc. 704, 705, affd. 283 App. Div. 1047) the court stated: “ In this proceeding the court is asked to say whether this provision [section 47 of the Decedent Estate Law] affords residents of other jurisdictions a means of escaping onerous restrictions on the testamentary disposition of property imposed by the laws of their own domiciles. The answer is that the statute does exactly, that when the estate left by the testator is subjected to control by the courts of this State as it was in this case by the selection of a New York fiduciary, by the testamentary transmittal of the property to this jurisdiction and by the direction as to the governing law.”
The argument is made that the right of election does not constitute a testamentary disposition — with regard to which section 47 of the Decedent Estate Law is concerned. However, it does in fact affect testamentary dispositions and, therefore, comes right within the meaning of section 47. Permitting the right of election given by another State, rather than by New York could destroy the right of a nonresident to have New York law prevail in connection with his testamentary dispositions. To put it another way, to give a widow a right of election under the laws of the domicile of the decedent, in the face of an expressed intention by the testator to have New York law apply,, in effect, nullifies whatever right is given him by section 47 of the Decedent Estate Law.
The nature of the right of election was considered in Matter of Smith (182 Misc. 711), where the court permitted the widow of a domiciliary of Spain to make her election under New York State law, since the testator had invoked section 47 of the Decedent Estate Law.
It is contended that the Smith case (supra) does apply here for, by allowing the right of election in that case, the widow acquired a greater right than that which was allowed under the *60law of the testator’s domicile. However, that argument is merely addressed to the consequences of the application of section 47 of the Decedent Estate Law and not to whether section 47 applies to the widow’s right of election. At any rate, the court in Matter of Smith (supra) indicated that it would have reached the same conclusion had less rights been given to the widow under the laws of the State of New York than those by the domiciliary country. The court stated, that had .the will been made before September 1, 1930, (that is, before the right of election under New York State law accrued, and when the widow would not have had any right of election to take against the will) the testator could have avoided the forced heirship of the widow as provided for by the laws of Spain.
It is claimed, moreover, that the principle enunciated in the Smith ease is not applicable here since the widow in that case was seeking to obtain her right of election in agreement with her husband’s choice of law and not in opposition to it. However,. here again the court indicated quite clearly that the result would have been the same, i.e., New York State law would have been followed even though she chose to elect in opposition and not in agreement with her husband’s choice of law. The court stated: This testator submitted his last will to the laws of New York, whatever they might be, in respect of his personalty in this State; and he did so in such general terms that the application of New York law to his personal estate cannot be said to have been limited by him to the express provisions or affirmative dispositions óf his will, but it necessarily involves the omission, or ‘ absence ’ as the title of the statute reads, of the requisite compulsory testamentary provision for the widow.” (Matter of Smith, supra, p. 714; emphasis supplied.)
This case also indicates that the right of election does affect testamentary dispositions and does come within section 47 of the Decedent Estate Law.
An additional argument is raised by the parties. It is stated that subdivision 6 of section 18-c of the Decedent Estate Law (as amd. by L. 1966, ch. 517, eff. Sept. 1, 1966) provides that the right of election pursuant to New York State law, is not available to the “ spouse of a decedent who was not domiciled in this state at the time of death,” and that therefore that section would be rendered meaningless if section 47 of the Decedent Estate Law gives such a spouse a right of election under New York State law. It must be noted that prior to the enactment of this statute, the wife of a nonresident did not have a right of election with respect to personalty. This new *61section did not change the prior holding of the courts with respect to personalty, but merely equated realty with personalty in this regard. Yet, such holdings notwithstanding, in construing section 47 of the Decedent Estate Law, the courts have held that when invoked, the right of election would be given to the wife. (Matter of Smith, supra; see Matter of Cook, supra.)
In any event, the decedent here died on October 4, 1964, and the will was executed in January of 1962. Subdivision 6 of section 18-c of the Decedent Estate Law did not go into- effect until September 1, 1966. That statute is prospective in operation and only affects wills executed after the effective date of the statute. (See N. Y. State Legis. Annual, 1965, Temporary Comm, on the Law of Estates, p. 206.)
Accordingly, the decree of the Surrogate Court should be affirmed.
Botein, P. J., and Bastow, J., concur with Steuer, J.; Rabin, J., dissents in opinion in which Telzer, J., concurs.
Decree reversed, on the law, with $50 costs and disbursements to all parties filing briefs payable out of the estate, and appellant’s right to elect against the will is upheld.