In re the Estate of Feuer

Mercure, J. (dissenting).

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…