IN THE MATTER OF THE ESTATE OF Robyn R. Lewis, DECEASED. JAMES ROBERT SIMMONS, PETITIONER-RESPONDENT; OPINION AND MEREDITH M. STEWART, RONALD L. LEWIS, RONALD L. LEWIS, II, AND JONATHAN K. LEWIS, OBJECTANTS-APPELLANTS. (APPEAL NO. 1.)
Appeal from a decree of the Surrogate's Court, Jefferson County (Peter A. Schwerzmann, S.), entered May 18, 2012. The decree dismissed the objections to the petition for probate and admitted to probate the last will and testament of Robyn R. Lewis, deceased, executed July 15, 1996.
WITTENBURG LAW FIRM, LLC, SYRACUSE, D.J. & J.A. CIRANDO, ESQS. (ELIZABETH deV. MOELLER OF COUNSEL), FOR OBJECTANTS-APPELLANTS.
MENTER, RUDIN & TRIVELPIECE, P.C., SYRACUSE (JULIAN B. MODESTI OF COUNSEL), FOR PETITIONER-RESPONDENT.
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND VALENTINO, JJ.
It is hereby ORDERED that the decree so appealed from is affirmed without costs.
Robyn R. Lewis (decedent) was married to James A. Simmons (ex-husband), and they divorced in 2007. The parties resided in Texas during the course of the marriage, but they purchased property in Clayton, New York. Pursuant to the divorce decree entered in the State of Texas, decedent was awarded, inter alia, the real property located in Clayton. Decedent relocated permanently to that residence, and she lived there until her death in March 2010. Following decedent's death, her parents applied for letters of administration, and amended letters of administration were issued in May 2010. Decedent's parents thereafter renounced their interest in the Clayton property so that it would pass to decedent's brother and half-brother.
In December 2010, petitioner, who is the father of the ex-husband, filed a petition to probate a will of decedent dated July 15, 1996 and executed in the State of Texas (1996 Will). Pursuant to the 1996 Will, decedent appointed the ex-husband, who at that time was still married to her, as executor of the will and beneficiary of all of her property. Also pursuant to the 1996 Will, in the event that the ex-husband predeceased decedent, petitioner was named as alternate executor and alternate beneficiary. In his petition to probate the 1996 Will, petitioner alleged that the testamentary disposition to the ex-husband, as well as his appointment as executor, were revoked by virtue of the divorce (see generally EPTL 5-1.4 [a] , ). Petitioner further alleged that he was the sole beneficiary of the 1996 Will, and asked Surrogate's Court to issue letters testamentary to him. At the time petitioner filed the petition to probate the 1996 Will, he filed an additional petition seeking, inter alia, revocation of the amended letters of administration issued to decedent's parents.
Decedent's parents, brother and half-brother (collectively, objectants) filed objections to probate. They contended that, inasmuch as decedent was a domiciliary of Texas at the time the 1996 Will was executed as well as at the time of her divorce, the nomination of petitioner as the alternate executor and alternate beneficiary failed under the Texas Probate Code. Pursuant to section 69 (b) of that Code, "[i]f, after making a will, the testator's marriage is dissolved... by divorce..., all provisions in the will, including all fiduciary appointments, shall be read as if the former spouse and each relative of the former spouse who is not a relative of the testator failed to survive the testator, unless the will expressly provides otherwise" (emphasis added). Objectants further contended that, because the divorce decree required the ex-husband to return any "paperwork associated with any items of the decree, " his failure to return the 1996 Will to decedent wrongfully and fraudulently deprived decedent of the opportunity to access and evaluate the 1996 Will. As a result, objectants contended that petitioner was "estopped from claiming any benefit or nomination from the late offering" of the 1996 Will.
In supplemental objections, objectants contended that the 1996 Will was "revoked by the revocatory language and content of a Second and Lost Will" executed by decedent (Lost Will). Following a hearing, the Surrogate issued the decree in appeal No. 1, which dismissed all objections to the petition for probate and admitted the 1996 Will to probate. The Surrogate further issued the decree in appeal No. 2, which revoked the amended letters of administration to decedent's parents and issued letters testamentary to petitioner. We conclude that the decree in each appeal should be affirmed.
We note as a preliminary matter that our dissenting colleague would reverse primarily based on her conclusion that, because petitioner failed to account for all of the alleged copies of the 1996 Will, he failed to rebut the presumption that the 1996 Will was revoked by an act of destruction performed by decedent (see EPTL 3-4.1 [a]  [A]). Objectants have never contended, however, that the 1996 Will was revoked by destruction. Aside from challenges to the testamentary dispositions in the 1996 Will, the only other contention raised by objectants is that the 1996 Will was revoked by the purported execution of the Lost Will (see generally EPTL 3-4.1 [a]  [A], [B]).
It is well settled that "[a]n issue may not be raised for the first time on appeal... where[, as here, ] it could have been obviated or cured by factual showings or legal countersteps' in the trial court" (Oram v Capone, 206 A.D.2d 839, 840; see Matter of Jared, 225 A.D.2d 1049, 1049; see generally Misicki v Caradonna, 12 N.Y.3d 511, 519; Bingham v New York City Tr. Auth., 99 N.Y.2d 355, 359). Moreover, appellate courts cannot and will not review an issue that has never been raised by the parties themselves. An exception to that rule is where a trial court or the Appellate Division determines, sua sponte, that it lacks subject matter jurisdiction (see Matter of Fry v Village of Tarrytown, 89 N.Y.2d 714, 718). In this case, the dissent would decide this appeal on an issue objectants "never so much as hinted much less claimed before" the Surrogate or this Court (Misicki, 12 N.Y.3d at 519 [emphasis omitted]).
"For us now to decide this appeal on a distinct ground that we winkled out wholly on our own would pose an obvious problem of fair play. We are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made. In sum, [petitioner] deserves an opportunity to refute the proposition on which the dissent would decide this appeal against him" (id.).
As the Court of Appeals recognized in Misicki, "[w]hile appellate judges surely do not sit as automatons..., they are not freelance lawyers either. Our system depends in large part on adversary presentation; our role in that system is best accomplished when [we] determine legal issues... that have first been considered by... the trial... court" (id. [internal quotation marks omitted]). "In our view, it would be fundamentally unfair to determine this issue sua sponte and conclude, as does our dissenting colleague, that [petitioner] failed to meet [his] initial burden" of rebutting the presumption that the 1996 Will was revoked by destruction (Woods v Design Ctr., LLC, 42 A.D.3d 876, 878; see e.g. Hann v Black, 96 A.D.3d 1503, 1503-1504; CB Richard Ellis, Buffalo, LLC v D.R. Watson Holdings, LLC, 60 A.D.3d 1409, 1410). Indeed, to decide this appeal on issues never raised by the objectants would "implicate due process concerns" (McHale v Anthony, 41 A.D.3d 265, 267).
The dissent attempts to avoid the rules of preservation by contending that, regardless of preservation, "it was petitioner's burden, as proponent of the 1996 Will, to make the proofs essential to its admission to probate' " (quoting Matter of Schillinger, 231 App Div 679, 680, affd 258 NY 186). While we agree that petitioner had the initial burden of proof, we recognize that "[t]he preservation of an issue for appellate review is completely distinct from the question whether [a party] has sustained his [or her] burden of proof" (People v Duncan, 177 A.D.2d 187, 192, lv denied 79 N.Y.2d 1048). We are mindful that Duncan involves an appeal from a judgment of conviction in a criminal case, but we conclude that the above principle is applicable to all appeals heard by this Court.
We now address those contentions raised by objectants on appeal. Although our dissenting colleague questions whether the ex-husband or his parents had possession of the 1996 Will, objectants contend that petitioner and his wife were the custodians of the 1996 Will and that they failed in their duty as custodians. It is well settled that one who accepts custody of an original will is "bound to return the instrument to its maker upon demand and[, ]... after the death of the testator and upon notice of such death, ... [is] bound to produce the will so that it might be probated" (Scholen v Guaranty Trust Co., 288 NY 249, 253-254; see generally SCPA 2507 ). Here, as in Scholen, there is no evidence that petitioner or his wife "voluntarily assumed any greater obligation, " and objectants "allege no facts which would permit the inference that from the bailment a broader duty ar[o]se" (id. at 254).
Even assuming, arguendo, that the ex-husband also could have been considered a custodian of the will, we conclude that neither the ex-husband nor his parents were under any legal obligation to return the 1996 Will to decedent at any time before her death inasmuch as it is undisputed that she never made a demand for its return (see id. at 253-254). Although decedent's divorce decree required the ex-husband to return financial paperwork and any paperwork "needed to effectuate [the] division [of property], " the 1996 Will was not a document needed to effectuate the division of any property. Moreover, petitioner and his wife were not parties to the divorce decree and thus were not subject to its provisions. IV
Objectants further contend that the nomination of petitioner as alternate executor and alternate beneficiary must fail because such a nomination would fail under the law of Texas, and it would be inequitable to allow decedent's former father-in-law to be the sole beneficiary of her estate. It is undisputed that the 1996 Will was a valid will and that the law of Texas, if applicable, would invalidate any testamentary distributions to petitioner (see Texas Probate Code § 69 [b]). In New York, however, a divorce operates to revoke testamentary distributions to former spouses only (see EPTL 5-1.4 [a], [b]). As objectants concede, New York law governs resolution of this case inasmuch as the real property is situated in this state and decedent was a domiciliary of this state at the time of her death (see EPTL 3-5.1 [b] , ; see generally Matter of Good, 304 NY 110, 115; Matter of Strauss, 75 Misc.2d 454, 456). Pursuant to New York law, the testamentary distribution to the ex-husband and his appointment as executor are revoked, but all other provisions of the will remain valid (see EPTL 5-1.4 [a], [b]; Matter of Coffed, 59 A.D.2d 297, 300, affd 46 N.Y.2d 514).
We reject the contention of objectants that we should ignore the clear and unambiguous wording of EPTL 5-1.4, as well as our own precedent, and decide this case on equitable principles. Indeed, we have previously held that the provisions of EPTL 5-1.4 apply only to former spouses, not to members of the former spouse's family (see Coffed, 59 A.D.2d at 300). Whereas Coffed involved a determination whether a former stepchild could inherit, and this case involves a former father-in-law, the statute does not permit us to distinguish between various members of the former spouse's family. If testamentary distributions to former stepchildren remain valid under the statute, we are constrained to conclude that testamentary distributions to other members of the former spouse's family also remain valid. We thus cannot rely on EPTL 5-1.4 to invalidate the testamentary distribution to petitioner; the clear and unambiguous language of the statute does not permit us to do so.
Contrary to the position of the dissent, such a result does not "circumvent the intent of the statute." Even if we could assume that the ex-husband might someday inherit or obtain the property from petitioner, we cannot decide petitioner's current legal rights to property based on our speculation of what he might do with that property in the future.
Finally, objectants contend that, although there is insufficient evidence to support admitting the Lost Will to probate (see SCPA 1407), there is sufficient evidence to establish that the Lost Will was duly executed, which thereby ...