182 Misc. 69 | N.Y. Sur. Ct. | 1943
Louis Sussdorff, Jr., and Flores Howard Sussdorff were husband and wife at the time of the execution of the former’s will on June 11, 1929. They had one child, a daughter, ■ Mary Elizabeth. Subsequent to the making of the will, and at a time not disclosed, the wife procured a decree of divorce from him in the State of Nevada. The testator died on August 29, 1940, survived by his daughter, Mary Elizabeth, and another daughter, Laura, born subsequent to the execution of the will, as his sole distributees. The will was admitted to probate on December 26, 1940. Letters testamentary were granted on the following day to Flores Howard Sussdorff, who now seeks to judicially settle her account as executrix. In view of the divorce, the special guardian for the daughter, Mary Elizabeth, questions her mother’s right to take under the decedent’s will in which, by the second paragraph, he disposed of his entire estate as follows: “ Two-thirds (%) of my said residuary estate to my wife, Flores Howard Sussdorff; and one-third (%) of my said residuary to my daughter, Mary Elizabeth Sussdorff ”. In the next paragraph he names as his executrix “ my wife, Flores Howard Sussdorff, and I direct that she shall serve without bond ”.
The divorce obtained by the legatee does not, expressly or impliedly, revoke, alter' or destroy the testamentary provision made for her in testator’s will. A revocation or alteration to be effective must be made pursuant to the statute. (Lovell v. Quitman, 88 N. Y. 377; Burnham v. Comfort, 108 N. Y. 535; Matter of Evans, 113 App. Div. 373; Matter of McGill, 229 N. Y. 405; Matter of Tremain, 282 N. Y. 485; Matter of Lamerdin, 157 Misc. 431, affd. 247 App. Div. 887.) Section 34 of the Decedent Estate Law relates to the revocation and cancellation of written wills and provides as follows: “No will in writing, except in the cases hereinafter mentioned, nor any part thereof, shall be revoked, or altered, otherwise than by some other will
It is further urged that the gift is lost because the legatee did not remain the wife of the decedent nor was such at the time