Opinion
December 29, 1961
In a proceeding to judicially settle the final account of the executor of testator's last will and testament, the objectants, two daughters of the testator, appeal from so much of a decree of the Surrogate's Court, Kings County, rendered February 28, 1961 after hearings before a Referee, as: (1) adjudged valid the notice of election, filed by testator's widow, Angela Cassano, under section 18 of the Decedent Estate Law, to take against the testator's will; (2) directed payment to her of her intestate share of the estate pursuant to such election and said statute; and (3) awarded to said Referee a fee of $1,500 for his services. Decree, insofar as appealed from, reversed on the law, and proceeding remitted to the Surrogate for further hearings and for a redetermination of all the issues (including the Referee's fee) on the basis of the proof in the present record and on the basis of all the proof which may be adduced upon the new hearings, with costs to abide the event. On this appeal, the court did not pass upon any questions of fact. It appears that in 1921 a judgment was rendered in a court of competent jurisdiction in Italy, granting a separation to testator from his wife, Angela Cassano, on the ground of her abandonment of him, and fixing the alimony to be paid by him despite her misconduct. It also appears that under Italian law, by reason solely of the subsequent cohabitation of the parties and without further judicial intervention, such judgment may be vitiated and the parties may be restored to their former marital status. One of the principal issues in this proceeding was whether or not the testator and his wife, after the 1921 judgment of separation, did subsequently cohabit and thus effect a nullification of the judgment and a restoration of their marital status; or whether the wife's abandonment of the testator continued and thus deprived her of her right of election under the statute (Decedent Estate Law, § 18). The learned Referee found that in 1948, for a period of eight or nine months, the parties cohabited and resumed their marital relations. He concluded, therefore, that the 1921 judgment was vitiated, that the wife's abandonment of the testator had then terminated, and that pursuant to her notice of election she was now entitled to her intestate share of testator's estate. In reaching his conclusion the Referee excluded from evidence the objectants' Exhibits B and C, which were received for identification however. In our opinion, such exclusion was error and requires a new trial. Exhibit B is a copy of "legal aid proceedings" in Italy which occurred in 1949, and in which application was made on behalf of the wife for free legal aid in order to obtain an increase in testator's alimony payments. Such "legal aid proceedings" indicate that, as a part thereof, a hearing or conference was held before a local Magistrate for the purpose of an "attempted conciliation" between testator and his wife. Exhibit C is a copy of the minutes of such "attempted conciliation." Such exhibits, having been properly authenticated and reflecting, as they do, proceedings which are essentially of a legal and judicial nature, are competent and material to the issues; they should have been received in evidence and given due consideration. Since they related to events which transpired in 1949, they have direct probative force in determining whether, as the Referee found, a resumption of cohabitation and a termination of abandonment actually occurred during the preceding year — 1948. The respondents, of course, should be afforded an opportunity to offer proof in rebuttal or explanation of the facts set forth in such "legal aid proceedings" and to refute any inferences from such facts which may be deemed unfavorable to them. As there is to be a new trial, attention is directed to the absence from the record of any specific proof, in affidavit form or otherwise, showing the full extent of the services rendered by the learned Referee and the time devoted by him to his study of the matter and to the preparation of his comprehensive report. In the absence of such proof it becomes difficult to determine the adequacy or inadequacy of any compensation which may be allowed to the Referee for his services. Such proof should be adduced before the Surrogate. Nolan, P.J., Ughetta, Christ, Pette and Brennan, JJ., concur.