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SURROGATE'S COURT OF NEW YORK, BROOME COUNTY 1969.NY.43822 <>; 306 N.Y.S.2d 32; 61 Misc. 2d 402 December 8, 1969 IN THE MATTER OF THE ESTATE OF ANN R. WHITEFORD, DECEASED Lloyd C. Anderson and Frederick V. Marsi for Alice M. Ogden, executrix, petitioner, and for Ruth E. A. Houck and another, respondents. Gerhart & Kuhnen (Eugene C. Gerhart and Richard F. Kuhnen of counsel), for William C. Whiteford, respondent. John M. Keane, S. Author: Keane

John M. Keane, S.

Author: Keane

 This is a proceeding under SCPA 1421 to determine the validity of a right of election made by William C. Whiteford against the will of his late wife, Ann R. Whiteford, who died October 25, 1968. The executrix, a sister of the decedent, has initiated this proceeding to have the right of election declared invalid because of provisions in a separation agreement between the decedent and her husband dated September 5, 1956. The answer of William C. Whiteford alleges that the provisions of the separation agreement had been nullified by the subsequent reconciliation between the decedent and himself.

The facts can be briefly stated. The decedent and William C. Whiteford were married on March 14, 1922. They had no children. On September 5, 1956, they entered into a separation agreement after a separation action had been begun by Ann R. Whiteford in Supreme Court. For a period of around six months William C. Whiteford lived separate and apart from his wife. According to the testimony he returned to their home around Easter time of 1957. Thereafter both lived in the same house until her death.

The facts as presented to the court seem to present little if any controversy. However, the interpretation placed on these facts by counsel for the estate of the deceased wife and counsel for the surviving husband diverges most significantly. Counsel for the surviving husband has presented a picture in his brief in which the husband appears to be somewhat less devoted than Abelard was to Heloise in the early days of their love but, nonetheless, very devoted and attentive to his wife. On the same facts, counsel for the estate of the deceased wife in his brief pictures the husband as a subservient vassal for his liege lady in whose castle he lived in the bedroom over the garage.

The will of Ann R. Whiteford was executed April 15, 1955, almost a year and half before the separation agreement was signed. This will, which has been admitted to probate in this court, provides for her husband as follows: "fourth: I make no bequest to, or provision for my beloved husband, William C. Whiteford, for the reason that his individual estate is more than adequate."

Relying primarily on Graves v. Graves (174 N. Y. S. 615), the surviving husband contends that the separation agreement was invalid because he did not leave his wife until some time after its execution. The facts as presented do not support this argument. The court finds that the husband left sufficiently soon after the execution of the agreements so that it was valid.

There is no question that if the separation of the parties had continued until their death, the provision of the separation agreement concerning waiver and release of the right of election would be effective. (See Matter of Donnelly, 3 Misc. 2d 986 and Matter of Sturmer, 303 N. Y. 98.) In both cases cited the separation continued until the death and there was no finding of any reconciliation.

Additionally, if the waiver and release of a right of election had been contained in a separate instrument executed at any time before or during the marriage, it, too, would have been effective if it met the other requirements of the statute. (EPTL 5-1.1 subd. [f]). (See Matter of Griffiths, 38 Misc. 2d 87 and Matter of Wynne, 194 Misc. 459.)

Reduced to its simplest terms, the surviving husband claims that the reconciliation in 1957 between him and his now deceased wife nullified the entire separation agreement. The petitioner, representing the estate of the deceased wife, contends that the separation agreement was, in effect, a number of separable agreements, one of which was the waiver of the right of election. Even assuming that some of the provisions became inoperative by reason of the reconciliation, the petitioner claims that the provision for the waiver of the right of election remained valid and existing at the time of the death of Ann R. Whiteford. Counsel for the petitioner argues that the brief of counsel for the surviving husband reaches conclusions relating to a reconciliation not supported by evidence and testimony. His point is well taken except that he then proceeds to reach conclusions relating to the relationship between the husband and a manicurist that are equally unsupported by evidence submitted to this court. The zeal of the advocate is appreciated by the court but no service is done in favor of a cause when too many liberties are taken with the evidence. The court also has a transcript of the testimony.

To support his claim of reconciliation, the surviving husband has relied strongly on earlier cases which set forth the requirements to sustain common-law marriage in New York prior to 1933. The argument is that facts which in those days would support a common-law marriage would support the reconciliation claimed here. Certainly here where both parties lived in the one-family dwelling all during the period in question, the facts are much stronger than in such cases as Gall v. Gall (114 N. Y. 109) and Badger v. Badger (88 N. Y. 547).

In none of the decisions cited by counsel for the petitioner is the exact present situation presented, namely, a separation agreement containing a waiver of the right of election followed by a reconciliation. In most of the decisions, the parties continued to be separated. This, of course, is different from the present state of facts.

The surviving husband was permitted to testify after objection of counsel for the petitioner on the basis of CPLR 4519. The court received the testimony which consisted for the most part of statements that he did not live alone; that he was not alone when he went to a nurses' alumnae association reunion; that he was not alone when he attended business banquets of his employer, and that he was not alone on social occasions outside of the home. Of course, the implication was that his wife accompanied him.

The court reserved decision on the objection of counsel for the petitioner. Although the court believes that the testimony is technically admissible, it proved nothing and none of such testimony has been considered in reaching the decision herein. There was ample other testimony and documentary proof to sustain the contention that from Easter time 1957 until the death of Ann R. Whiteford, she and her husband, William C. Whiteford, lived in the home which they owned as tenants by the entirety. Counsel for the estate of the deceased wife argues that the reconciliation necessary to support any claim of the surviving husband does not exist here. Basically, petitioner contends that reconciliation is a subjective matter. Since clairvoyance is not a faculty of this court, a determination on the question of reconciliation must be based on objective evidence. Petitioner argues that reconciliation is not conceivable when the husband allowed the manicurist to remain deputy on his safe-deposit box until May 18, 1965, almost eight years after the husband went back to live with his wife. The testimony, however, showed that the manicurist never had a key to the box, nor had she ever visited the vault in all those years. Finally, there was no proof that she ever saw the husband after he returned to his wife in the spring of 1957.

It is not a single fact but a cumulative series of different facts which will sustain a finding of reconciliation as the term is generally interpreted. Reconciliation requires more than an occasional romp on the connubial couch with the separated spouse. Here the parties lived in the same house for over 11 years after the brief period of separation. This was not the brief period which ...

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