In re the Estate of Liberman

Fuld, J. (dissenting).

The appellant widow may be allowed counsel fees in this case, pursuant to section 278 of the Surrogate’s Court Act, only if the decree was made “in a proceeding to construe a will ”. The question, therefore, is whether the proceeding brought by the widow was one to construe her husband’s will. Mere statement that she instituted the pro*534eeeding, pursuant to section 145-a of the Surrogate’s Court Act to elect “ against the provisions of [the] will ”, it seems to me, supplies the answer. And so the courts have consistently held. (See, e.g., Matter of Mills, 272 App. Div.…