Majority
p. 1064In the Matter of the Application of Madeline Martin Davis for a Determination as to the Validity and Effect of Her Notice of Election to Take the Intestate Share of a Widow as against the Last Will and Testament of Charles M. Davis, Deceased. John F. Davis, as Executor, etc., of Charles M. Davis, Deceased, and Individually, and Clara L. Davis, Appellants; Madeline Martin Davis, Respondent.
Order affirmed, without costs of this appeal to any party. - All concur, Harris, J., in the following memorandum: The order should be affirmed on the ground that there has been a substantial compliance with the statute in reference to the manner of service of the notice of election. The manner of such service herein has been
p. 1065
approved by the surrogate who has the power to prescribe a method, other than personally, of service on the executor; except Dowling, J., who dissents and votes for reversal and for granting the motion, on the ground that the executor, under the facts, was without power to waive personal service of the notice of election to the detriment of the legatees named in the will. (The order denies a motion by the executor to dismiss a petition to determine the validity of a notice of election.) Present — Crosby, P. J., Cunningham, Taylor, Dowling and Harris, JJ.