We find that by her will the testatrix intended to and did disinherit her children, the petitioners, except for the nominal legacies of $50 each. These nominal legacies, in our view, tend to support the testatrix’s intent to disinherit them. Thus, the decision in Matter of Cairo (35 AD2d 76, affd 29 NY2d 527), on facts almost identical to those in this case, is controlling and must *68be followed. The notices of election should therefore have been declared invalid.
The legislative trend has been to reduce restrictions on charitable bequests, apparently because children sometimes deserve to be cut out of their parents’ wills and because many people find comfort in their religion. As the concurring opinion of Mr. Justice Christ so eruditely demonstrates, from 1860 to the present the restrictions on who must be granted bequests have gradually been reduced to those set forth in the statute here under consideration (see, also, Practice Commentary to EPTL 5-3.3 in McKinney’s Cons. Laws of NY, Book 17B, EPTL). So far as our research discloses "forced heirship”, a concept foreign to our legal philosphy, is retained in only two of the "civil law” States.
The intent of a testator has always been the touchstone of testamentary interpretation. The clear intent of the testatrix in the will under consideration was to cut off the children with a nominal $50 bequest. That intent should not here be ignored.
Matter of Norcross (67 Misc 2d 932, affd 39 AD2d 874) and Matter of Rothko (71 Misc 2d 74), relied on by the Surrogate for sustaining the notices of election here, are not controlling, in view of Cairo (supra). Moreover, they are distinguishable from the situation at bar in that the respective testators therein made substantial testamentary and inter vivos gifts to their respective issue, and the wills therein show affection and. beneficence for the issue, whereas at bar there is no such showing. Further, the Surrogate noted at bar that no hearing was requested by the petitioners, indicating that they did not seek to establish that their relationship with their mother was such that it was unreasonable to assume, as her will indicated, that she had intended to disinherit them.
Thus, the children would not benefit as "a beneficiary under the will or as a distributee” (EPTL 5-3.3, subd [a], par [1]) and may not challenge the charitable disposition. To hold otherwise would implant in our law the anomalous pattern that a testatrix could cut her children off completely and leave her estate to a stranger, but could not cut off her children and leave it to her church which may have given her solace and comfort in her old age.
Martuscello, Acting P. J., and Cohalan, J., concur, on the opinion of Surrogate Laurino; Christ J., concurs in the result, *69with an opinion; Latham and Shapiro, JJ., dissent and vote to reverse and to adjudge that petitioners are not entitled to take a share of the estate against the will, with an opinion.
Decree of the Surrogate’s Court, Queens County, dated May 16, 1973, affirmed, without costs.