In re Schweizer

119 Misc. 770 | N.Y. Sur. Ct. | 1922

Wingate, S.

Application is made to dismiss the only objections filed to the petition for probate of decedent’s will. The application is based upon the assertion that the contestant, decedent’s widow, is not a “ person interested ” who is entitled to file objections under section 147 of the Surrogate’s Court Act. She was married to the decedent, but separated from him some months prior to his death. Thereafter they lived apart from each other, and entered into a separation agreement which is in evidence.

Objections to the probate of a will may not be filed by one who would derive no financial benefit should the will be set aside. Matter of Hoyt, 55 Misc. Rep. 159; affd., 122 App. Div. 914; affd., 192 N, Y. 538.

A separation agreement may by its terms release the interest of a wife in the property of her husband. See cases cited in 14 McKinney’s Consol. Laws, under Dom. Rel. Law, § 51; Tiffany Dom. Rel. (3d ed.) chap. VII. See, also, Titus v. Bassi, 182 App. Div. 387.

The separation agreement in this case provides that the wife “ shall not and will not at any time hereafter claim or demand any of his [the decedent’s] money, property, real and personal, jewels, plate, clothing, household goods, furniture or stock in trade, which he has now in his power, custody or possession, or which he shall or may at any time hereafter have, buy or procure, or which shall be devised or given to him, or that he may otherwise acquire, and that he shall and may enjoy and absolutely dispose of the same as if he were single and unmarried; and that she fully and in all respects releases him and his property, real and personal from any and all claims whatsoever.” This agreement further contains the recital that “ all the covenants, stipulations, promises, agreements, and provisions in this instrument contained shall apply to, bind and be obligatory upon the heirs, executors, administrators, personal representatives, successors or assigns of the parties hereto, or either of them, whether so expressed or not.”

There is no real estate passing by decedent’s will. If the will were denied probate, the release contained in the agreement referred to and executed by the wife, would prevent her from sharing in the personal property of her deceased husband. Under the authority of the Matter of Hoyt case, cited supra, the widow is, therefore, not a party in interest who may contest decedent’s will.

The application to dismiss her objections is granted. Settle order on notice.

Ordered accordingly.