16 N.E.2d 357 | NY | 1938
Esther Annie Rechtschaffen died intestate a resident of New York county in September, 1936, leaving as survivors her husband, this respondent, Louis Rechtschaffen, a nephew, this appellant, Nathan Zucker, and other collateral relatives. Upon petition by the nephew and cross-petition by the husband, the Surrogate issued letters of administration to the husband, this respondent.
The question is whether the husband, by refusing or neglecting to provide for his wife, or by abandoning her, has forfeited his interest in the estate and thus lost his right to appointment as administrator. If he has not so forfeited his right, and is entitled to share in the estate, he takes precedence over all others in appointment as administrator. (Surr. Ct. Act, § 118.) Section 87 of the Decedent Estate Law (Cons. Laws, ch. 13) provides: "No distributive share of the estate of a decedent shall be allowed under the provisions of this article * * * (c) * * * to a husband who has neglected or refused to provide for hiswife, or has abandoned her." The appellant in his petition alleges that respondent abandoned his wife twenty years prior to her death and has neglected and refused to provide for her and to contribute to her support. The burden is upon him to establish these allegations. The Surrogate held that the preponderance of the evidence on the issues of abandonment and failure to provide is in favor of the husband but, in reaching this conclusion, he struck from the record certain records of the Magistrate's Court and Domestic Relations Court which we deem relevant. The decree adjudges that appellant has failed to prove that the respondent husband abandoned, neglected and failed to provide for decedent. *339
Decedent, while employed as a cook, in the year 1908 married respondent. From that date until 1917, decedent and her husband were engaged in the laundry business when, as the witnesses, court and counsel state, they "separated." The capital for this business had been supplied by the wife. The circumstances under which they ceased to live together are thus described by the daughter of respondent who is the stepdaughter of decedent: "One day we came home — I came home from the store and I found the apartment empty. I ran back to the store and told Papa that I couldn't get into the apartment. * * * And he went to the apartment and everything was empty. * * * Q. Was the furniture in the apartment? A. No. Q. Did you see this decedent at the time? A. No. * * * Q. Did you see her after that? A. I have seen her when she summoned Papa to court. * * * Q. After, as you testified, your father came to the apartment and found it empty, what did you and your father do? A. We had to stay in the store. * * * Q. You mean, you slept in the store? A. Yes, on the floor. * * * My brother left — went to Baltimore at the time, when mystepmother broke up house." In addition to this testimony, the Surrogate evidently gave consideration to testimony by the decedent in a proceeding, in which she charged her husband with failure to support, before a city magistrate February 8, 1917, which is embodied in respondent's Exhibit 2. This exhibit wasadmitted without objection but apparently by consent. In that proceeding, decedent as complainant admitted that she had sold the furniture, that she did not intend to live in the apartment, that if her husband came back, she would not stay with him and that "I can't live with him. He make me sick. I have the key." After this separation, decedent returned to her former employer. The husband did not know where she lived after the separation in 1917. Respondent testified in this proceeding before the Surrogate that, *340 pursuant to orders of court, he paid his wife three dollars and fifty cents a week and four dollars a week until he became ill in December, 1935.
The Surrogate admitted in evidence and later struck out records in Magistrate's Court and Domestic Relations Court adjudging respondent husband to be a disorderly person by reason of the fact that his wife was in danger of becoming a burden upon the public and ordering him to pay three dollars and fifty cents per week for her support from November 2, 1917, the date of the first order, the same sum from November 26, 1918, the date of the second order, and other records indicating delinquency in payments.
The proceedings in the Domestic Relations Court and the Magistrate's Court which resulted in judgments that defendant was a disorderly person necessarily included the issues whether this respondent husband had abandoned his wife without adequate support or left her in danger of becoming a burden upon the public or neglected to provide for her according to his means. A disorderly person is defined as one who is guilty of these acts or omissions (Code Crim. Proc. § 899, subd. 1), and proof of the judgments of the Domestic Relations Court and the Magistrate's Court that respondent was a disorderly person is prima facie
evidence in the present proceeding that he neglected to provide for his wife according to his means. (Schindler v. Royal Ins.Co.,
The orders should be reversed and the matter remitted to the Surrogate's Court to proceed in accordance with this opinion, with costs to abide the event payable out of the estate.
LEHMAN, HUBBS, LOUGHRAN, FINCH and RIPPEY, JJ., concur; CRANE, Ch. J., taking no part.
Ordered accordingly.
