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MATTER OF SUNSHINE

51 A.D.2d 326 (1976)

In the Matter of The Estate of Oscar Sunshine, Deceased. Melvin Sunshine, Appellant. Elizabeth Sunshine et al., Respondents

Appellate Division of the Supreme Court of the State of New York, First Department.

March 23, 1976

Attorney(s) appearing for the Case

John M. Hadlock of counsel (Donald P. Parson and Lawrence N. Chanen with him on the brief; Whitman & Ransom, attorneys), for appellant.

Nicholas R. Doman (William T. Livingston, III, with him on the brief), attorney for Elizabeth Sunshine, respondent.

MURPHY and SILVERMAN, JJ., concur with BIRNS, J.; KUPFERMAN, J. P., and LUPIANO, J., dissent and would affirm on opinion of MIDONICK, S.

BIRNS, J.

By this proceeding petitioner Elizabeth Sunshine, as surviving spouse of Oscar Sunshine, sought a decree determining the validity and effect of her election to take against the will of decedent.

Petitioner and decedent were married on December 15, 1964. It was a second marriage for both and each had a child by a previous marriage. Their respective ages were 43 and 62 years. Decedent died November...

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