dissents and votes to affirm the judgment appealed from, with the following memorandum: When the decedent’s husband died, his will left one dollar to the decedent, and the remainder of his assets to the parties’ daughter *592and son. During the administration of the decedent’s husband’s estate, which was worth about $35,000, the decedent sought to exercise her right of election against the estate. Thereafter the decedent settled her right of election claim by accepting $3,600, $2,700 to be deducted from the distributive share of her daughter and $900 to be deducted from the distributive share of her son. In addition, the stipulation of settlement dated December 23, 1971, provided that the decedent "will leave intact and without change her Last Will and Testament dated December 1, 1969”. In relevant part, this 1969 will made separate bequests to a named charity and a friend, in the total sum of $800, and the remainder of the estate was left to the daughter and the son. In 1980, the decedent’s son died, leaving no issue.
Prior to her death on September 10, 1985, the decedent made a will in 1982, which was admitted into probate. In relevant part, this 1982 will made one bequest to a named charity in the sum of $500 and the remainder of the estate was left to two friends. The residuary legatees renounced their interest and the residuary estate—valued at from less than $50,000 to $70,000—passed to the decedent’s daughter. In addition, over the years, the decedent created several Totten trust accounts. In pertinent part, 14 accounts were in trust for various named charities and individuals, with a total balance at the time of the decedent’s death, in the sum of $147,785.26.
In this proceeding, the decedent’s daughter and her children essentially seek to enjoin payment to the beneficiaries of the remaining Totten trust accounts on the ground that those accounts were created in violation of the 1971 stipulation of settlement.
In my view, the Surrogate’s Court properly concluded, in light of the circumstances surrounding the execution of the 1971 settlement, and the fact that there was no express provision in the stipulation of settlement precluding the decedent from creating the 14 Totten trust accounts, that there was no basis for inferring such a term therein. Contrary to the majority’s position, this matter is not analogous to a case involving joint wills. The decedent herein had not appropriated property belonging to her children. Rather, the undisputed deposition testimony of the decedent’s attorney indicated that she had obtained the $3,600 in settlement of her right of election claim against her husband’s estate, and not on the strength that she would bequeath the bulk of her estate to her children (see, Oursler v Armstrong, 10 NY2d 385, 397). The decedent’s counsel specifically noted that at the time *593of the 1971 stipulation of settlement, there had been no discussions concerning Totten trust accounts, inter vivos gifts, insurance policies or the assets of the decedent, and that the purpose of the provision not to change the 1969 will was to preserve the family relationship between the decedent and her children. Thus, that provision is consistent with a mere expression of the decedent’s then present intent not to change her will (see, Oursler v Armstrong, supra), and did not preclude the creation of the Totten trust accounts.