Opinion
May 27, 1971
Decree, Surrogate's Court, New York County, entered on January 28, 1971, appealed from, affirmed, without costs and without disbursements. The single question is whether sufficient facts were established satisfactorily that cross petitioner-appellant (appellant), husband of the decedent, abandoned his deceased spouse, and such abandonment continued until the time of death (EPTL 5-1.2, subd. [a], par. [5]) so as to warrant affirming the decree. In resolving the question all circumstances are to be considered. Abandonment involves more than a technical physical separation, it must be without justification and with the intention of not returning. Intention of course is a mental condition and its existence or nonexistence with reference to a particular course of conduct can only be gleaned from the actions of the person involved. The testimony in the record establishes that the parties were living apart as a result of appellant leaving decedent after causing decedent to become infected with a disease, and apparently they lived apart from 1944 to August 14, 1970, the date of decedent's death. There was also testimony that decedent had to work to support herself and that appellant, on one occasion after the separation, attacked decedent with a knife, causing serious injuries for which decedent was hospitalized. Appellant stood trial, was convicted and actually served 20 months and 27 days of the sentence imposed. While it is true that much of the testimony came from a former brother-in-law of decedent, that brother-in-law had obtained a divorce from decedent's sister in 1954, and did not stand to profit in any distribution of estate assets. The Surrogate determined the credibility of the witnesses. In resolving the factual issues and the inferences reasonably flowing therefrom, the Surrogate could well find, as he did, that appellant abandoned decedent, and thus was not entitled to a distributive share of her estate.
I dissent and would reverse. Heartwise, the majority may be correct, but the precedents dictate a contrary conclusion. ( Matter of Maiden, 284 N.Y. 429; Schine v. Schine, 36 A.D.2d 300; Matter of Christesen, 277 App. Div. 893; Matter of Green, 155 Misc. 641; see, also, Diemer v. Diemer, 8 N.Y.2d 206, 210; Matter of Lapenna, 16 A.D.2d 655, app. dsmd., 12 N.Y.2d 671.) By these precedents, for a valid case of abandonment, there must be the essential elements of unjustified departure, with no intent of returning, and without consent. But on the record before us, we have only tenuous and tepid evidence indicating that the parties were married in 1929, ceased living together about 1947, that they "argued", and that she was the victim of a street-scene stabbing at his hands. This latter incident seems to have been caused by the pangs of despised love; to the guilt of it he pleaded; he had no previous record. The reference to "disease" in the majority opinion is not supported by the record, as objection to this testimony was sustained by the Surrogate. And, although the evidence relating to his attack upon her might have been relevant, if "cruelty" were the subject of our study, it has little or no bearing on the subject of culpable abandonment, which is the sole question before us. For aught that appears from this sparse record, there is no one she (decedent) would have parted with more willingly than her husband (petitioner). If this were so, then he did not leave without her consent, and abandonment has not been demonstrated within the meaning of EPTL 5-1.2 (subd. [a], par. [5]). And as the still surviving husband, he cannot be barred from participating in his wife's estate. Taking note that the principal testimony concerning the spouses comes from an ertswhile brother-in-law of decedent whose sisters stand to profit by the decree below, I do not think this evidence is sufficient to sustain abandonment within the statute, particularly since the burden is on the party asserting it. (See Matter of Rechtschaffen, 278 N.Y. 336.) Thus, in my view, the determination of the majority opinion affirming the decree below rests on the merest speculation and is insupportable as a matter of law. ( Matter of Maiden, supra; Diemer v. Diemer, supra; Schine v. Schine, supra.) Particularly pertinent is the statement of Justice SEARS, speaking for the majority of the court in Maiden (pp. 432-433): "Human relations between spouses are so complex and influenced by so many circumstances, separations occur in so many instances with fault and without fault, with consent and without consent that we deem the conclusion of fault on the part of the person leaving the joint home too uncertain for inference alone."