Summary
In Matter of Hollister (18 N.Y.2d 281, supra), this court was presented with an opportunity to decide whether a general release clause in a separation agreement revoked a prior testamentary disposition in favor of the testator's husband.
Summary of this case from Matter of MarucciaOpinion
Argued September 19, 1966
Decided October 20, 1966
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, S. SAMUEL DI FALCO, S.
Joseph Calderon and William Baronoff for appellant. Arthur D. Zinberg and George Zinberg for respondents.
On January 26, 1945, testatrix executed a will in which she bequeathed all her property to her husband and named him executor. In October, 1954, testatrix and her husband entered into a separation agreement wherein they waived rights in each other's estates. On February 4, 1955, the testatrix obtained an Alabama divorce. The decree of divorce incorporated the provisions of the separation agreement. The testatrix died on December 11, 1962, not having executed a new will. The husband offered the will for probate, which had been in the possession of his attorneys since its execution. Testatrix' mother filed an answer in which she challenged proponent's status, requested a construction of the will in the light of the separation agreement, and cross-petitioned for letters c.t.a. The mother then moved for summary judgment.
The Surrogate held that the separation agreement was binding upon the proponent, its validity having been determined by the Alabama court to whose jurisdiction both parties submitted themselves, and that the Alabama decree must be given full faith and credit; that the proponent was not the surviving spouse of the decedent at the time of her death; that an agreement adjusting and settling the mutual rights and interests of the parties in and to the estate of the other under section 40 of the Decedent Estate Law operates as a revocation of a provision in a will theretofore executed if the terms and conditions of the adjustment and settlement are wholly inconsistent with the terms and nature of such previous devise or bequest; that this separation agreement under that section resulted in a revocation of the bequest and devise to the husband and a revocation of his appointment as executor. The Appellate Division affirmed without opinion.
The proponent argues that section 40 of the Decedent Estate Law does not operate on a separation agreement so as to revoke a devise or bequest of the residuary estate made by an earlier will of one spouse in favor of the other; that this separation agreement is not "wholly inconsistent" with the testamentary gifts to appellant which were not thereby revoked by the operation of section 40; that the Alabama statute as to the effect of a divorce decree as revocation has no application to the will of a New York decedent; that summary judgment was not warranted by the record, which is claimed to raise a triable issue of fact as to the effect of the separation agreement determined from the circumstances and conduct of the decedent. In our view the decisions by the Surrogate and the Appellate Division are correct.
The Alabama law providing that divorce revokes testamentary gifts to the other spouse would appear to have no application, even though the deceased was domiciled there when she procured her divorce, inasmuch as she later resumed her domicile in New York State. The rule is that in case of a bequest of personalty the law of the testator's domicile at the time of death determines whether events subsequent to the execution of a will constitute a revocation and, in the case of a devise of realty, the law of the State in which the land is located (see 16 Am.Jur.2d, Conflict of Laws, § 61, "Revocation", p. 94; 9 ALR 2d 1423). Respondent would distinguish the New York case of Matter of Lans ( 29 Misc.2d 758, affd. 13 A.D.2d 922) upon the ground that here the spouse who procured the divorce was the testator. It is argued that because the testator-wife had to be domiciled in Alabama when she obtained the divorce, and was adjudicated to have been domiciled there by that decree, her estate is estopped to deny that the Alabama law of revocation governs since she was located there when the act of revocation (viz., the divorce) occurred. In Lans the testator was defendant in the divorce suit, and never became domiciled in the other State. But the rule of conflict of laws is "that whether a divorce procured subsequently to the execution of the will has the effect of revoking the will as to the divorced spouse, is to be determined as to personal property disposed of by the will, by the law of the decedent's domicile at the time of death and not by the law of the state where the divorce was procured, notwithstanding the testator was domiciled in the latter state at the time the will was executed" and the divorce obtained (16 Am.Jur.2d, Conflict of Laws, § 61, citing Matter of Lans, supra, and Matter of Patterson, 64 Cal.App. 643, error dsmd. 266 U.S. 594). Neither the Surrogate nor the Appellate Division placed their decisions on that Alabama statute.
This does not affect the outcome if the Surrogate and the Appellate Division were correct that this separation agreement operated as a revocation of the gifts to the husband under the law of this State under section 40 of the Decedent Estate Law and rulings such as Titus v. Bassi ( 182 App. Div. 387, 396); Matter of Ga Nun ( 200 Misc. 789, 790, affd. 279 App. Div. 982); Matter of Loeb ( 155 Misc. 863); Matter of Gilmour ( 146 Misc. 113). Appellant's contention is based mainly on section 34 of the Decedent Estate Law which prescribes particular methods for the revocation and the cancellation of written wills that do not include the making of subsequent separation agreements. The leading case for the respondent is Titus v. Bassi ( supra) which holds that section 40 of the Decedent Estate Law modifies section 34 to the extent that bequests are revoked by provisions in a separation agreement which "are wholly inconsistent with the terms and nature of such previous devise or bequest". The language of the separation agreement now in suit is that the husband (appellant) releases "any and all right, title and interest in and to the property or estate of the Wife (whether now owned or hereafter acquired), her executors and administrators, heirs at law and next of kin, which the husband now has or may have" including any right to take against her will under section 18 of the Decedent Estate Law. This language, read as a whole, is inconsistent with the survival of the testamentary gifts to the husband.
The cases cited in appellant's brief holding that no revocation occurred contain no language of the other spouse releasing any interest in the estate, or contain different and weaker expressions, e.g., Matter of Lans ( supra); Matter of Torr ( 17 Misc.2d 1063 [Surr. Ct., N.Y. County, 1959]); Matter of Cote ( 195 Misc. 410 [Surr. Ct., Broome County, 1949]); Matter of Silberstein (108 N.Y.S.2d 88); Matter of Swords ( 120 Misc. 427, affd. 208 App. Div. 852); Schoonmaker v. Crounse ( 261 App. Div. 77).
In Matter of Silberstein ( supra, p. 92), where the language of the separation agreement was less positive than here, Surrogate SAVARESE summarized the law in reaching an opposite result on different facts: "Where separation agreements have been held to be wholly inconsistent with the provisions of a precedent testamentary instrument the parties either expressly provide for a release or waiver of all rights and interests in the estate of each other or used language from which such an intent could reasonably be implied."
That is the situation here.
Prior to the effective date of chapter 952 of the Laws of 1966 (Estates, Powers Trusts Law [EPTL], 5-1.4, not applicable to this appeal) a divorce decree, in and of itself, did not effect a revocation of a testamentary gift in this State ( Matter of Tuck, 165 Misc. 346, 348-349, affd. 256 App. Div. 971, affd. 281 N.Y. 697; Matter of De Nardo, 268 App. Div. 865; Matter of Torr, 17 Misc.2d 1063, 1065, supra; Matter of Sussdorff, 182 Misc. 69; Matter of Simpson, 155 Misc. 866, 868).
The order appealed from should be affirmed, without costs.
I concur in result for affirmance.
The question of what language in a separation agreement shall have the effect of a revocation of a prior testamentary disposition, as well as the question of whether a divorce in itself is sufficient to revoke such a bequest or devise, does not appear to have been decided by this court.
As to the question of the effect of a divorce on a prior testamentary bequest, the basis of the lower court decisions has been that "A revocation or alteration to be effective must be made pursuant to the statute * * * The statute neither mentions divorce nor provides that it shall have any effect on the will of a spouse previously executed. In view of the fact that the statutory methods of revocation are exclusive, the common-law doctrine of implied revocation of wills by reason of subsequent changes in the condition or circumstances of a testator does not prevail in this State." ( Matter of Sussdorff, 182 Misc. 69, 70-71.)
While this is a correct statement of the general rule, its application to cases such as this, where the parties are divorced, is contrary to "common knowledge and experience" ( Luff v. Luff, 359 F.2d 235, 238), for it would seem that a testator would "no longer wish testamentary benefits conferred upon a former spouse prior to the divorce or annulment to remain effective thereafter." (Hoffman, Revocation of Wills and Related Subjects, 32 Brooklyn L. Rev. 1, 32.)
Based upon the recommendation of the above-quoted scholar, the Legislature, in the new Estates, Powers and Trusts Law (EPTL), has created a conclusive statutory presumption that provisions in a will for a spouse are intended to be revoked by a subsequent divorce or annulment (EPTL 5-1.4).
The statute further provides that the provisions of this section apply to the will of a testator who dies after the effective date, " notwithstanding that the will was executed and the divorce * * * was procured prior thereto." (Emphasis added.)
Since the effective date of this statute is September 1, 1967 it is not by its terms applicable to the case at bar. However, in view of the fact that we have yet to rule on this question I am inclined to follow the policy enunciated in the statute and hold that the divorce here in question revoked the prior testamentary devise. "If the presumption upon which the statutes implying revocation from divorce or annulment are premised (that testators are deemed to prefer the revocation rather than the retention of testamentary benefits conferred upon a former spouse) is sound [and I believe it is], no reason of policy is apparent for making the statute prospective only." (Hoffman, Revocation of Wills and Related Subjects, 32 Brooklyn L. Rev. 33, supra.) Likewise, though the new statute is not by its terms applicable, no reason of policy exists for the continued adherence to an old and irrational rule.
This conclusion would save us from becoming involved in the confusing subtleties that have surrounded the question of whether the language in a separation agreement is "wholly inconsistent" with the prior testamentary bequest. This latter question has served to involve courts in numerous controversies as to whether a particular testamentary bequest or devise has been revoked. The Legislature by outlining strict requirements, as to the steps necessary to effect a revocation, has sought to eliminate just such controversies and guessing games.
I would hold that no language in a separation agreement is sufficient to have the effect of a revocation of a prior testamentary devise unless the agreement stated in no uncertain terms that the spouse, for whom the bequest or devise has been made, renounces any bequest or devise made for his or her benefit in any will or codicil executed by the other spouse prior to the date of the separation agreement. In any other case, where the separation agreement has not been followed by a divorce, I would hold that the testamentary devise has not been revoked by the language of the separation agreement.
Since a divorce has followed the separation agreement in this case, as it does in many of these cases, I concur in the result reached by the court.
Chief Judge DESMOND and Judges FULD, BURKE, SCILEPPI and BERGAN concur with Judge VAN VOORHIS; Judge KEATING concurs in result in a separate opinion.
Order affirmed.