165 Misc. 683 | N.Y. Sur. Ct. | 1937
The executor under the last will of Edna B. Moore petitions in this proceeding for a determination as to the validity and effect of the election of Raymond W. Moore, the husband of the testatrix, to take against her will. The proceeding is brought under the provisions of section 145-a of the Surrogate’s Court Act, which authorize a method of review of the right of a surviving
Mrs. Moore died on October 1, 1936. The probate of her will was contested by her husband. A compromise was negotiated and the will admitted. In addition to a cash settlement made with him as consideration for the settlement of the contest, the arrangement between the parties provided for the setting aside of a further sum of $68,000. If it was determined by the court that he had a right of election, the amount of the reserve fund is to be paid to him. If it was determined that no right of election existed the reserve fund is to pass under the terms of the will to the residuary legatees.
Mrs. Moore left a gross estate of approximately $750,000. She was married to Raymond W. Moore on May 17, 1935. At that time she was about sixty years old. He was forty. They had met about the year 1928 in Dennis, Cape Cod, Mass., where she spent her summers. He was engaged in the presentation of theatrical performances in that place. She had been previously married. Her former husband had died. By him she had three daughters, who survived her. In her will the testatrix made certain bequests by way of outright legacies and directions to pay fixed annual amounts to named persons. She gave the income of a trust fund of $100,000 to her husband for his life with remainder to her residuary legatees. She gave the residue to her three daughters.
The relationship of the testatrix and her husband is rather exceptional. After their marriage they maintained separate residences, although they appear to have taken various trips and sojourned together from time to time. She continued to be known as Mrs. Tweedy, her first marriage name. Before her marriage to Mr. Moore, and in the period from 1929 to the end of 1934, she made gifts to Mr. Moore aggregating $517,000. From January 1, 1935, to the date of her death on October 1, 1936, she gave him additional sums, in total, $112,000. The aggregate amount received by him in her lifetime was, therefore, $629,000. He received by way of settlement of the probate contest $104,000. In all he has obtained $733,000 of Mrs. Moore’s property. The validity of the gifts made by her in her lifetime has not been questioned by her executor or legatees.
The present controversy arose because of a document which he executed on May 24, 1935. That document reads as follows: “ The right of election to take against any Last Will and Testament executed by my wife, Edna Bradley Moore, pursuant to the pro
The terms of section 18 of the Decedent Estate Law expressly include a provision which permits the waiver of a right of a surviving spouse to take against a will of the other spouse by formal document. Subdivision 9 of the section, at the time of the execution of the waiver by Mr. Moore, read: “ The husband or wife during the lifetime of the other may waive the right of election to take against a particular last will, and testament by an instru
The history of the preparation of the section by the Decedent Estate Commission, its original enactment by the Legislature in 1929, and the subsequent amendment made in 1930, all negative the interpretation of its terms urged by counsel for the husband here. When the section was originally enacted it provided that the election to take against any will might be made in “ an agreement of settlement * * *, made before or after the marriage.” In the following year the Decedent Estate Commission recommended to the Legislature the elimination of the words “ of settlement,” so that the form of the instrument remained by statutory direction merely an agreement. Recommendation was also made to add a new sentence at the end of the subdivision which appears in the language quoted above. The purpose of this new sentence was to give legal recognition to an agreement by which a husband or wife had waived all rights in the estate of the other spouse in an instrument executed before September 1, 1930. The change of the form of the subdivision from an “ agreement of settlement ” to a mere “ agreement ” of any kind is significant in the solution of the controversy here. It is illuminative of the intent of the Decedent Estate Commission which recommended it and of the Legislature which enacted it, to authorize a form of instrument other than an ante-nuptial or post-nuptial agreement of settlement. The footnote printed in the legislative bill indicates the broadened scope of the document to be employed. The waiver might be embodied
Again, the word must be inferred to have been used in the statute in the sense that is customarily employed in the nomenclature of the law of estates. There are many forms of such agreements constantly presented for consideration in the Surrogates’ Courts and considered in the decisions of this court and the appellate courts. None of these instruments is required to be signed by all of the parties involved in the estate or even by two parties where the transaction is limited to that number. This group of instruments is composed of agreements to assign legacies or interests in estates specifically mentioned in section 32 of the Personal Property Law under the article of that statute entitled “ Agreements in writing.” Again, there are agreements to renounce legacies, agreements to waive a fiduciary’s commissions, agreements releasing fiduciaries from liability to account or approving a specific account and waiving its judicial settlement (Surr. Ct. Act, § 251), agreements releasing the surety on the bond of a fiduciary, agreements as to gifts and donations, agreements by a creditor relinquishing a claim against an estate or compromising such a claim. It should be noted also in the majority of these forms of relinquishment and releases the instrument signed by the party surrendering the right to litigate seldom states the consideration paid in money or property. Nevertheless, they are supported in the courts as valid and effective.
A person may waive any right that he has whether secured to him by contract, conferred upon him by statute, or guaranteed him by the Constitution except in a case where public policy intervenes. (People ex rel. McLaughlin v. Police Commissioners, 174 N. Y. 450, 456; Matter of Cooper, 93 id. 507; Baird v. Mayor, 74 id. 382.) In Amherst College v. Ritch (151 N. Y. 282, at pp. 338, 349) it was held that the next of kin had validly released their rights to question a charitable gift in excess of one-half of the estate.
I find no intent whatsoever to limit the word “ agreement ” in the statute to a formal contract executed by both spouses. “ The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal. It takes a broader view today.” (Cardozo, J., in Wood v. Duff-Gordon, 222 N. Y. 88, 91.) Cases may arise where fraud or imposition or coercion or duress may be proven to have been exercised in the procurement of an agreement to relinquish a right of election.
The attention of the court has been called by counsel to the decision in Mosby v. Chapin (217 Ill. App. 442), where the husband waived his rights in the estate of his wife by an instrument under seal. Although the statutory right of election exists in that State, it does not appear that there was any express provision in the statute for a waiver of the right by instrument or agreement as required by the law of our State. The waiver was, nevertheless, sustained as valid. The waiver in that case being under seal was presumed to be based upon a valuable consideration. The situation of the parties and the surrounding circumstances leading up to the execution of the paper were presented in the evidence. Both spouses were dead when the case came on for determination. The corut said: “ Where the mouths of the contracting parties are closed by death, the acts and dealings of such parties in regard to the subject-matter of the supposed contract may be properly resorted to to determine the contemporaneous constructions and understanding of such parties as to its terms.”
Finally, the provisions of section 18 were enacted for the liberal purpose of protecting a spouse against disinheritance. (Matter of Byrnes, 260 N. Y. 465, affg. 141 Misc. 346.) Safeguards were supplied to prevent a delinquent husband or wife from obtaining these benefits. The rights granted by the section might be waived
The husband of the decedent is barred from any right of election to take against her will.
Tax costs and submit decree on notice accordingly.