We agree with Surrogate’s Court that Frances Feuer (hereinafter Feuer), surviving spouse of the testator, Fred Feuer (hereinafter decedent), never obtained "the beneficial use” of decedent’s estate within the meaning of *873paragraph six of decedent’s will and that decedent’s residuary estate devolved to the alternate beneficiaries as a result. Accordingly, we would affirm.
Initially, it is our view that the majority has improperly focused on the question of whether decedent intended to benefit Feuer or, conversely, whether he intended to divest her of his residuary estate. In fact, there is no question that Feuer was the natural and actual primary object of decedent’s bounty and that decedent’s dominant purpose was to assure that her needs were met during the balance of her life. Because we are dealing with an alternate disposition, however, the real issue concerns decedent’s secondary intent, i.e., the objects of his bounty should Feuer have no need for the assets of his estate because of the timing of her own death. Because decedent and Feuer married late in life and their marriage was childless, decedent’s obvious choices in such a case were (1) to permit substantially all of his property, earned and accumulated by him during his lifetime, to pass through Feuer’s estate to her blood relatives, the natural objects of her bounty, or (2) to bypass Feuer’s estate and primarily benefit his own blood relatives and favored educational, religious and charitable institutions. We submit that decedent’s obvious secondary intent, logically and as ascertained from the four corners of the will (see, Matter of Cord, 58 NY2d 539, 544), is that expressed in the second choice.
In construing the time when Feuer "has had the beneficial use of’ decedent’s estate as the earliest possible moment when a beneficiary could seek to compel an advance pursuant to SCPA 2102 (5), the majority has ignored both the clear language of decedent’s will and established law on the subject. First, decedent’s will does not speak to the time when Feuer gains the power to obtain a portion of the estate assets. Rather, the language "has had the beneficial use” required Feuer’s actual exercise of her right to possess, control and use the assets before the residuary estate would become indefeasibly vested in her (see, Matter of Cavanagh, 14 AD2d 175, 177, affd 13 NY2d 641; Matter of Brew, 7 AD2d 364, 366). Second, even if an executor is entitled to bring a proceeding against herself to obtain an advance under SCPA 2102 (5), a point that need not be considered, on this record there is no means of ascertaining whether, at the time of her death, Feuer could have satisfied the statutory requirements that "the property of the estate applicable to the payment of debts, legacies and expenses exceeds by at least one-third the amount of all known claims, legacies having priority and beneficial interests *874of the same class and [that she] needs such payment for [her] support or education or of [her] family” (SCPA 2102 [5]). In fact, it is clear that at the time of her death Feuer had not paid the $25,000 legacy to petitioner Betty Sealove, satisfied the claims of creditors or paid the administration expenses of the estate. It also appears that Feuer had ample liquid assets, in her own name or as decedent’s surviving joint tenant, to sustain her for the short time that she lived following decedent’s death.
In our view, the majority’s position has the unfortunate effect of thwarting decedent’s intent. Rather than interpreting the will in such a way as to defeat the alternate residuary disposition, we believe that proper recognition of decedent’s testamentary scheme favors a construction that gives it maximum vitality (see, Matter of Brew, supra).
White, J., concurs. Ordered that the decree is reversed, on the law, with costs, petition denied and decedent’s will is construed to devise the residuary estate to Frances Feuer under paragraph five thereof.