112 Misc. 433 | N.Y. Sur. Ct. | 1920
This is a contested probate proceeding. The framed issues I directed the jury to answer favorably to the proponent. Another issue arose during the trial, and that was as to the revocation of the will by reason of the subsequent marriage of the decedent. Upon the question of law thus presented I directed the filing of briefs, and that is the matter for present disposition.
A short résumé of the evidence will perhaps not be amiss. Nicholas W. White, while a resident of the state of Illinois, executed on September 26, 1900, a will in due and proper accordance with the requisites
There is a conflict between the laws of New York and Illinois as to the effect of the subsequent marriage of a man upon a prior will executed by him, hence the issue herein. The law of Illinois, as embodied in section 10 of the Descent Act of Illinois, reads, inter alia, “ a marriage'shall be deemed a revocation of a prior will,” and has repeatedly been applied by the courts of that state to the will of an unmarried man. McAnnulty v. McAnnulty, 120 Ill. 33; Sloniger v. Sloniger, 161 id. 277. The claim is made that such law governs; that the will of a resident of New York becomes revoked by his subsequent marriage made while domiciled here by operation of the law of Illinois because it was executed in Illinois while he was a resident there, or, as the contestant phrases it, that “ a will is construed as to revocation by marriage by the circumstances and law in force at the date of the instrument.”
Upon analysis the cases cited by contestant fail to sustain such a claim. For the most part they do not involve, as does this matter, any change of domicile with its consequent complications. The apparently favorable expression from the opinion in Matter of Del Genovese, 169 App. Div. 140, which contestant seizes upon, must be taken in connection with the facts
“ The law of a decedent’s domicile at the time of death governs and gives effect, or otherwise, to his will. If Mrs. Cobum had died a resident of the state of New Jersey her will would have been admitted to probate there as valid, and undoubtedly such personal property as was in this state could have been administered according to the will under ancillary letters issued !h this state. But it is not true that, having made her will in New Jersey while a resident there, her will should have the same effect now and here as it would have had if she had been a resident there at the time of her death (the case of Braithwaite, 19 Abb. N. C. 113; In re Witter, 15 N. Y. Supp. 133; Trimble v. Dzieduzyiki, 57 How. Pr. 208). * * *
“ The principles maintained in these cases go further than establishing the rule by which the domiciliary law governs the disposition of personalty; they also prove that this law overrides previously existing
“A will is ambulatory not only in being subject to revocation and alteration, but in being incomplete and inchoate. Before rights can be acquired under it the testator must die, and at the time of his death the will must be valid under the laws then existing (Moultrie v. Hunt, 23 N. Y. 298). And this I suppose to be true whether a change in the law has occurred by legislation or b)r removal, to another state where different laws exist. ’ ’
There is one > more point which the contestant' stresses ■—that the 1919 amendment to section 35 of the Decedent Estate Law is applicable in the instant case. Prior to such date the law of this state while holding that the will of an unmarried woman is revoked by her subsequent marriage (Decedent Estate Law, § 36), did not apply the same rule in the case of an unmarried man. Chapter 293 of the Laws of 1919, in effect September 1, 1919, altered this situation and placed the spouses upon a parity. The contention, however, that the law, as thus promulgated, applies to the matter at bar is without merit. The decedent died prior to the enactment of such law, and there is nothing to indicate that it is intended to be retroactive. Dodin v. Dodin, 16 App. Div. 42; affd., 162 N. Y. 635.
I hold therefore that the law to be applied in this' matter is the law of the state of New York at the time the decedent died domiciled here, and that under such law the will remains imrevoked.
Having resolved the question presented in favor of the proponent, the propounded paper is admitted to probate.
Probate 'decreed,.