In re the Estate of Milbank

Millard L. Midonick, S.

This is an application by the alleged surviving spouse for a partial advance payment of her legacy under the will and to direct the executors to permit her to occupy the decedent’s co-operative apartment.

In paragraph Eighth of the will decedent provided a minimum elective share trust for the wife "if she shall be my surviving spouse within the meaning of section 5-1.2 of the Estates, Powers and Trusts Law of the State of New York”. In a codicil decedent amended article Eight to recite that he had instituted an action for divorce against his wife and that in the event…