In the Matter of the Estate of Marvin P. Middlemark, Deceased. Madeline Middlemark, Appellant; Martin Mittelmark, Respondent

In the Matter of the Estate of Marvin P. Middlemark, Deceased. Madeline Middlemark, Appellant; Martin Mittelmark, Respondent. [672 NYS2d 792] [MAJORITY] —In a proceeding pursuant to SCPA 1420 the appeal is from so much of an order of the Surrogate’s Court, Nassau County (Radigan, S.), dated April 11, 1997, as, upon reargument and renewal, adhered to its original determination which, inter alia, excluded certain trust proceeds from the decedent’s net probate estate. Ordered that the order is affirmed insofar as appealed from, with costs payable by the appellant personally. A review of the decedent’s will and the post-nuptial agreement executed by the deceased and the appellant establishes that the Surrogate properly excluded the proceeds of a certain trust fund from the decedent’s net estate. The appellant’s contention that the trust constituted a “testamentary substitute”, which should have been included in the decedent’s net estate, is without merit (cf., Matter of Katzenstein, 56 Misc 2d 16, affd 32 AD2d 611). Mangano, P. J., Thompson, Santucci and Altman, JJ., concur.