Opinion
March 13, 1962
Present — Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ.
This is an appeal by the executor from a decree of Greene County Surrogate's Court which denied his petition to dismiss a notice of election by the surviving husband to take his intestate share of his deceased wife's estate. Section 18 of the Decedent Estate Law provides for the right of election by a surviving spouse against or in the absence of testamentary provision contained in the will and subdivision 4 thereof states: "No husband who has neglected or refused to provide for his wife, or has abandoned her, shall have the right of such election". The record discloses that the husband and his deceased wife were married in June, 1948 and lived together at her home until May 2, 1954, at which time the husband departed at the suggestion of his wife. The testimony shows that the prior events which led to the argument were not monumental; that on the day of the husband's departure, the wife allegedly told him "to get the hell out and stay out and don't bother coming back". Thereafter they continued to live separate and apart until the death of his wife on December 16, 1959. The record is silent as to any subsequent attempts of reconciliation on her part. The husband testified that he never was approached or contacted with reference to returning to his former abode. The only issue on this appeal is whether the executor sustained the burden of proof that the husband abandoned the decedent pursuant to section 18 of the Decedent Estate Law. It has been held that "The burden to establish abandonment is and remains at all times upon those asserting it" and that the applicable part of section 18 was "an expression by the Legislature of its intent to exclude from the benefits of the statute a wife against whom a judgment of separation could be sustained. * * * To constitute abandonment under this statute something more is necessary than a departure from the marital abode or a living apart. * * * To amount to abandonment the departure of a spouse from the marital home must be unjustified and without the consent of the other spouse. The reason for leaving is inseparable from the act." ( Matter of Maiden, 284 N.Y. 429, 431, 432.) The Surrogate found that the executor failed to sustain the burden of proof that the husband had abandoned the decedent and found that it affirmatively appeared that the decedent had ordered the husband from the marital abode. We are in accord with the finding made by the Surrogate that there was no showing of abandonment by the husband and that the executor has failed to sustain his burden of proof. Order unanimously affirmed, with costs to the respondent payable from the estate.