197 Misc. 339 | N.Y. Sur. Ct. | 1949
In the petition for probate of the will herein the petitioner requested that the will be construed upon its admission , to probate. No objection to probate having been made and the necessary proofs having been presented, the court directed that the will be admitted to probate and that decree therefor be presented. The construction proceeding was then entertained. All of the parties to such proceeding being adults and competent and before the court, the special guardian appointed upon the probate proceeding was released and discharged from further participation in the matter.
The will was executed on March 6, 1923. The testator’s first wife is named therein as life beneficiary of the entire estate, the remainder to her four children, the respondents, by her former marriage. The testator’s first wife died, and on October 14, 1937, he married the petitioner, and lived with her until his death on April 29, 1949. Three days before the testator’s marriage to the petitioner, he and she entered into a written agreement, duly acknowledged, whereby it was recited that the testator owned the residence premises at No. 24 Poplar Street, Rochester, New York, and was about to marry the petitioner, and it was provided that the testator thereby granted to the petitioner the life use and possession of said realty at No. 24 Poplar Street, and the petitioner agreed that if she survived the testator, she would maintain the property and pay the taxes thereon for life and upon her death it would pass to his heirs “ or pursuant to the provisions of his Last Will.” No reference was made therein to any
It appears that the petitioner is the testator’s sole distributee (Decedent Estate Law, § 83, subd. 4); that the real estate above mentioned is free and clear of liens and is worth about $5,000; and that the testator’s personalty amounts to about $5,000. The petitioner claims that by virtue of section 35 of the Decedent Estate Law she is entitled to take her intestate share in the testator’s personalty, that is, all of his estate aside from the real estate referred to in said agreement. The respondents contend that the agreement of October 11, 1937, above-described, between the testator and petitioner, is such an antenuptial agreement as is intended by section 35 of the Decedent Estate Law shall bar the petitioner from any rights in the testator’s estate except as provided for her in such agreement. The personalty, less funeral and administration expenses, is the stake; and the question is whether it shall pass to the respondents under the will or to the petitioner as by intestacy.
Section 35 of the Decedent Estate Law provides in part as follows: ‘1 Revocation by marriage. If after making any will, such testator marries, and the husband or wife survives the testator, such will shall be deemed revoked as to such survivor, unless provision shall have been made for such survivor by an ante nuptial agreement in writing ’’.
Prior to the 1932 amendment of said section (L. 1932, ch. 459), it was similar in form to section 26 of the Decedent Estate Law which provides that a will is ineffective as against .an after-born child of the testator “ unprovided for by any settlement ” and not mentioned in the will. Historically, the basis for the law, as codified in section 26 and former section 35 of the Decedent Estate Law, was the principle that where a testator’s situation changed after he made his will, he must have intended a revocation of his will in order to effect a discharge of his moral duties arising out of the changed situation. Under such theory and law any act which satisfied the court that the testator had recog
Since this statute (Domestic Relations Law, § 35) deprives a testator of the power to disinherit his spouse in the absence of ‘ ‘ an ante nuptial agreement in writing ’ ’ and is silent as to the nature of such antenuptial agreement, it becomes necessary to construe the act in this respect. The statute as amended having fixed the rights of the surviving spouse as a matter of substantive law just as does section 18 of the Decedent Estate Law, it is proper to look to the latter section by way of analogy as a guide .to the probable legislative intent. The latter statute provides that a spouse under certain circumstances is entitled to elect to take her intestate share in her husband’s estate, but may waive such right. It appears that the Legislature, in amending section 35 of the Decedent Estate Law, meant to protect the surviving spouse in the situation there referred to substantially to the same extent as in section 18 of the Decedent Estate Law, in respect of the waiver of intestate rights.
These statutes are not abstractions but are designed to relate to the succession of property. The words ‘1 unless provision shall have been made ” as contained in section 35 of the Decedent Estate Law are to be read in connection with the intended subject matter, namely, the testator’s property. Thus, this portion
The policy of the Legislature and of the courts has been to protect the interest of a surviving spouse in decedent’s assets. The Appellate Division of this department has closely adhered to this general policy. (See Matter of Withall, 191 Misc. 1016, revd. 274 App. Div. 846; Matter of Palmer, 192 Misc. 385, affd. 275 App. Div. 792, and Matter of Daniels, 193 Misc. 862, revd. 275 App. Div. 890.) Releases and separation agreements have been, strictly construed and held not to constitute a waiver of the right of election where such waiver has not been expressly stated (Matter of Colaci, 288 N. Y. 158; Thompson v. Thompson, 163 Misc. 946, 949-950, affd. 254 App. Div. 601; Matter of Brown, 153 Misc. 282; Jardine v. O’Hare, 66 Misc. 33, 34), and where it was not contained in a binding written instrument (Matter of Goldberg, 275 N. Y. 186); and even an express waiver of a right of election has been declared invalid where not duly acknowledged. (Matter of McGlone, 284 N. Y. 527.) The construction sought by the respondents herein is contrary to the intent of the Legislature and the policy of the courts.
Section 35 of the Decedent Estate Law provides that the will is revoked as to the surviving spouse in the absence of provision made for her by antenuptial agreement. The burden of proof of “ the existence of such ante nuptial agreement ” is upon those who would sustain the will, in this case the respondents. The antenuptial agreement refers only to the realty. Apart from the principle that it should be strictly construed and not extended to include property not referred to, we have the companion instrument, the waiver of the right of election duly executed by the testator in favor of the petitioner on the same day on which the antenuptial agreement was executed. It shows clearly that the lawyer in whose legal covers each instrument is enclosed was mindful of the manner of drafting a full and complete waiver and release of rights in the property of a spouse. It is evident from the two instruments that the parties never intended that the petitioner was releasing her rights under section 35 of the Decedent Estate Law to any of the testator’s property, except the real estate specifically mentioned.
Submit decree accordingly.