(dissenting). I dissent and vote to affirm the decrees herein appealed from. In Matter of Rosenzweig (4 Misc 2d 142) Surrogate Collins expressly held “ That testator’s brother is entitled to the share of the income bequeathed to the widow and terminated by her recourse to section 18 of the Decedent Estate Law ” (p. 144). Computation of the widow’s share and contribution thereto by the other interests under the will were to be determined in the subsequent accounting proceeding. A decree was entered in accordance with Surrogate Collins’ determination. Appeal was taken therefrom. On such appeal the widow, who was both trustee and executrix, contended the decision of the Surrogate permitting the brother to enjoy the undiminished income from the trust after withdrawal of the.widow’s share of the residue, was error. This court affirmed without opinion (Matter of Rosenzweig, 7 A D 2d 969). Subsequently, the widow rendered her account as trustee and as executrix and decrees were entered thereon. In his decision, Surrogate Cox stated the issue as to the right of the testator’s brother to trust income was res judicata. “ By reason of the prior determination [that of Surrogate Collins], the brother is entitled to receive 15% of the net income of the residuary trust but not less than $300 per month.” (Matter of Rosenzweig’s Estate, 237 N. Y. S. 2d 438, 440.) In the decree entered in accordance with such determination, Surrogate Cox *117expressly ordered, adjudged and decreed, that decedent’s brother be paid “15% of the net income, but not less than $300 per month from that portion of the trust ” established under decedent’s will and bequeathed to decedent’s wife, of which decedent’s brother became the successor in interest.
It was further decreed, if the net income from such portion be less than $300 per month, “ to pay from the principal of the aforesaid trust ” an amount necessary to make up the deficiency.
This court, on appeal, reversed. We concluded the earlier decision (Matter of Rosenzweig, 4 Misc 2d 142, affd. 7 A D 2d 969) and the decree later entered thereon merely declared the status of Emanuel as successor in interest to the estate of the widow, and that such decision was not “ res judicata on the issue of contributions or value of Emanuel’s interest * * *
The interest of the widow under the will must first be applied in satisfaction of her elective share and that such application exhausts her interest, leaving nothing to which Emanuel can succeed as her successor in interest.” (Matter of Rosenzweig, 23 A D 2d 427, 434.) We adopted a concept of separate trusts and pointed out the consequences to Erica if payments of $300 per month to Emanuel were mandated. Much reliance was placed upon Matter of Curley (160 Misc. 844) as contrasted with Matter of Byrnes (149 Misc. 449).
The Court of Appeals rejected any concept of separate trusts. Its language refers to “the trusts” or “the testamentary trust”. While the Court of Appeals noted “there do not appear to be any Court of Appeals or even Appellate Division decisions dealing with this problem [the proper method for satisfying the widow’s elective share] ” (Matter of Rosenzweig, 19 N Y 2d 92, 96), it rejected the method adopted by the Appellate Division and expressly disapproved of Matter of Curley {supra). The court declared the widow entitled to take her intestate share outright, such share to be satisfied by prorata contributions from each of the legacies, and directed that the decrees of the Surrogate’s Court be reinstated. That the Court of Appeals was not unaware or unmindful of effects possibly adverse to Erica may be gleaned from its observation ‘ ‘ the real problem with this case was that the testator * * * never thought about what would occur if his wife chose to exercise her right of election. It is no doubt true * * * that if the testator had considered it, the will might have been quite different and that Emanuel might not have come off as well as he did.” (Matter of Rosenzweig, 19 N Y 2d 92, 99.)
The arguments advanced by appellant in the instant proceeding were raised before Surrogate Cox and rejected. They *118were accepted later by this court which reversed the decrees appealed from. Such arguments were advanced on appeal to the Court of Appeals and there rejected. As noted, that court reversed the Appellate Division and reinstated the decrees of the Surrogate. The fact that Erica, decedent’s daughter, was the appellant on the prior occasion (Matter of Rosenzweig, 23 A D 2d 427, revd. 19 N Y 2d 92), and that Aranka, the wife as trustee and executrix, is appellant here should not serve to bar application of the doctrine of res judicata (see Israel v. Wood Dolson Co., 1 N Y 2d 116). The right of Emanuel to payment of $300 per month as successor in interest to Aranka, the wife of decedent, was established in the earlier cases. . It follows that the power to invade the principal of the residuary trust conferred by the will should be exercised, if necessary, to effectuate that right, and give it meaning.
On the contempt issue, the record establishes a willful refusal to pay as directed by the decrees heretofore entered.
Eager and McGivern, JJ., concur with Wither, J.; Stevens, J., dissents in opinion, in which Botein, P. J., concurs.
Decree entered July 12, 1967, modified, on the law and the facts, in accordance with the opinion filed herein, and, as so modified, affirmed with $50 costs and disbursements to all parties filing briefs payable out of the estate.
Order entered on September 15,1967, reversed, on the law and the facts and as a matter of discretion, with $50 costs and disbursements to all parties filing briefs, payable out of the estate, and the application to punish appellant for contempt of court denied.
Settle order on notice.