In the Matter of the Estate of WILLIAM N. HOWLAND, Deceased. CAROLINE E. HOWLAND, Appellant; CENTRAL TRUST COMPANY, as Administrator with the Will Annexed of WILLIAM N. HOWLAND, Deceased, et al., Respondents.
APPEAL from so much of a decree of the Monroe County Surrogate's Court (WITMER, S.), entered November 5, 1953, as adjudged that appellant had waived her right of election under subdivision 9 of section 18 of the Decedent Estate Law.
Daniel F. Fitzgerald, Jr., and Daniel F. Fitzgerald for appellant.
Donald J. Corbett for Central Trust Company, as administrator with the will annexed, respondent.
George J. Nier, Jr., special guardian for Clarence W. Swan, an incompetent, respondent.
MCCURN, P. J.
The petitioner instituted a proceeding pursuant to section 145-a of the Surrogate's Court Act praying for a decree determining that she is entitled under the provisions of section 18 of the Decedent Estate Law to take her intestate share in the estate of her deceased husband. The Surrogate found that she had waived her right of election pursuant to subdivision 9 of section 18 of the Decedent Estate Law. The appeal is from that part of the decree which denies to the petitioner her right of election.
The petitioner and the testator were married in 1903; they separated in 1932, at which time they entered into a separation agreement in writing by the terms of which they agreed to live separate and apart and each waived his or her interest in the other's estate. The separation agreement was signed by both the petitioner and the testator but no acknowledgment by either was made or attached to such agreement. The husband thereafter obtained a Nevada divorce. The Surrogate held that the Nevada divorce was void and that the petitioner continued to be the lawful wife of the decedent until his death. There is no appeal by either party from that part of the decree.
On the trial before the Surrogate the petitioner was called to the witness stand by the attorney representing the administrator with the will annexed of the testator. She was confronted with the separation agreement and was asked whether or not the signature appearing thereon was her signature. The Surrogate overruled objections by petitioner's counsel to the question and she answered, 'Yes, but I refuse * * * to acknowledge it.' The sum total of her testimony is to the effect that the signature appearing on the separation agreement is her signature but that she did not acknowledge it at the time it was written and refuses to acknowledge it now.
Counsel for the estate thereupon contended before the Surrogate that since the petitioner had admitted in open court the identity of her signature on the separation agreement that the Surrogate should take her acknowledgment and attach his certificate of acknowledgment to the instrument in question. The Surrogate concluded: 'A written certificate of acknowledgment, dated the day the widow testified before the Surrogate herein, shall, therefore, be attached to the separation agreement, and the Surrogate will take the widow's acknowledgment of the agreement as of that date, and thereupon a decree may be submitted denying the widow's right of election.'
Subdivision 9 of section 18 of the Decedent Estate Law as it existed at the time the agreement was made reads as follows:
'The husband or wife during the lifetime of the other may waive the right of election to take against a particular last will and testament by an instrument subscribed and duly acknowledged, or may waive such right of election to take against any last will and testament of the other whatsoever in an agreement so executed, made before or after marriage. An agreement so executed made before the taking effect of this section wherein a spouse has waived or released all rights in the estate of the other spouse shall be deemed to release the right of election granted in this section.' (Emphasis supplied.) (L. 1930. ch. 174.)
A waiver of the right of election is void and of no effect where the instrument although subscribed was not duly acknowledged (Matter of McGlone,284 N.Y. 527; Matter of Colaci,288 N.Y. 158). A separation agreement containing a waiver of the right of election is effective to bar the right of election where the separation agreement is subscribed and duly acknowledged by the parties (Matter of Sturmer,303 N.Y. 98). However, where such a separation agreement is not acknowledged it is of no effect so far as a waiver of the right of election is concerned (Mat ...