Opinion
June 30, 1955.
Appeal from Surrogate's Court, Nassau County.
Decree, insofar as appealed from, affirmed, with costs, payable out of the estate. The parents of the claimants, while the latter were minors, disagreed and entered into a separation agreement. It is the contention of the appellants that the children have claims to one third of the estate of their father, founded on a decree of divorce entered in an action in Nevada. They argue that the separation agreement had no force until the entry of that decree. There is no provision in the agreement whereby the approval of any court was necessary to give it vitality. Neither did it provide that it would not be effective until delivery to the parties nor that it would become ineffective if a divorce was not obtained. The separation agreement did provide that the mother would not apply for alimony or maintenance and support in any action for divorce, whether brought by her or the husband, and she released the husband from all claims for support and maintenance except as provided by the agreement. Each party granted and released any interest then had or that might thereafter be acquired in real property of the other and waived any right to election as against the provisions of a will. The agreement was to remain in force insofar as its provisions did not conflict with any order or decree made by any court of competent jurisdiction and any proceedings for divorce on any lawful ground were not to impair the validity of the agreement or any lawful term thereof. It was recognized that the parties could not bind a court by the provisions of the agreement for custody and control of the children, but a decree conflicting with "this agreement as to the custody or control or support" of the children was not to impair the validity or enforcibility of any other provision. Presumably the agreement was valid in Nevada, where both parties submitted to the jurisdiction of the divorce court. It is not reasonable to assume that the Nevada court approved an agreement which was invalid under the law of that State. No finding was made by the Nevada court that the agreement had been executed subject to the approval of the court. Delivery of the agreement to the wife was apparently withheld because it was feared she, with possession of a valid agreement, might not seek a divorce which the husband desired. The Nevada court did no more than approve the agreement and make it part of the decree. There was no direction in the decree for performance, as in Harris v. Commissioner ( 340 U.S. 106); Commissioner of Internal Revenue v. Maresi ( 156 F.2d 929); Commissioner of Internal Revenue v. Watson's Estate ( 216 F.2d 941), and Douglas v. Willcuts ( 296 U.S. 1). Moreover, the Nevada divorce court, without the consent of the parties, appears to have had power to decree support and control of children during minority solely (4 Hillyer, Nev. Comp. Laws [1929], § 9462; Nev. Comp. Laws [Supp., 1931-1941], §§ 9463, 9465). The provision of the agreement whereby the father agreed by will to give and bequeath one third of his estate to the children obviously was not intended to furnish support for the children during their minority. They have no claim on the basis of the decisions in Harris v. Commissioner ( 340 U.S. 106, supra) and Commissioner of Internal Revenue v. Maresi ( 156 F.2d 929, supra). The Nevada divorce court could not of its own volition direct the father to make a will and provide for the children thereby. ( Hooker v. Commissioner of Internal Revenue, 174 F.2d 863; Rosenthal v. Commissioner of Internal Revenue, 205 F.2d 505; Krause v. Yoke, 89 F. Supp. 91.) MacCrate, Beldock and Murphy, JJ., concur; Nolan, P.J., and Ughetta, J., dissent and vote to reverse on authority of Harris v. Commissioner ( 340 U.S. 106); Commissioner of Internal Revenue v. Watson's Estate ( 216 F.2d 941); Commissioner of Internal Revenue v. Maresi ( 156 F.2d 929), and McMurtry v. Commissioner of Internal Revenue ( 203 F.2d 659). [ 207 Misc. 972.]