Opinion
May 11, 1971
Order, Surrogate's Court, New York County, entered on January 12, 1971, implementing decision of former Surrogate SILVERMAN of the Surrogate's Court, reversed, on the law and the facts, the petitioner's application for letters of administration granted and the cross petition of the Public Administrator dismissed, with $30 costs and disbursements to petitioner payable out of the estate. Two separate opinions, both to the same effect, underlie the order appealed from. The later one states that the "course of the previous appeals in this case leaves open all issues except that the letters of administration c.t.a. to the widow must be revoked, and * * * forecloses * * * determination of any other issues without further hearing." This is not so. On the prior appeal ( 29 A.D.2d 169), it was specifically stated (p. 171) that the widow's waiver of rights in her husband's estate, not having been expressly terminated, subsisted, and held, further, on the facts, that the widow had not established reconciliation with her husband after the decree of separation. The Court of Appeals, in affirming ( 23 N.Y.2d 860), obviously refrained from passing on anything but the question of law involved, and did not, as the opinion under review supposes, leave the question of reconciliation open for consideration at a later hearing. In this posture, whatever relief the widow may be advised to seek in further proceedings, the petitioning nephew is a prospective distributee, entitled to letters, and this forecloses the Public Administrator's cross petition for the same. Nor is it entirely necessary to look to the prior appeal as a basis for dismissal of the cross application, for, except for the conclusory, and unfounded, allegation that the widow "is the surviving spouse in good standing," not a single averment of fact is set forth in the cross petition to justify the relief sought.
The issue of whether or not the widow and her deceased husband had effected a reconciliation and thus abrogated the agreement of waiver of their interests in each other's estate should not be decided without a trial. I agree with the Surrogate that the course of the previous appeals in this case leaves open all issues except that letters of administration to the widow had been properly revoked. The Court of Appeals so stated in limiting its affirmance of this court's decision ( 23 N.Y.2d 860). The majority states: "In this posture, whatever relief the widow may be advised to seek in further proceedings, the petitioning nephew is a prospective distributee." But the only manner in which the nephew can become a distributee is by excluding the widow. Thus, she is being summarily and without due process, deprived of a valuable right notwithstanding that a separation decree had been entered in her favor. The order directing a hearing should be affirmed.