In re the Estate of Quick , 28 N.Y.S.2d 10 ( 1941 )

Decree reversed on the law and facts, without costs, and matter remitted to the Surrogate’s Court to enter a decree in accordance with the memorandum. Certain findings of fact reversed and new finding of fact and conclusion of law made. Memorandum: This appeal is from a decree of the Surrogate’s Court of Monroe County wherein it was adjudged that the appellant was not entitled to the right of election to take against the will of his deceased wife by reason of his having abandoned her within the meaning of section 18, subdivision 4, of the Decedent Estate Law. The surrogate’s decision that the appellant beginning in the spring of 1935 and following his separation from the decedent lived in adulterous cohabitation with another woman is not supported by the evidence and the finding to that effect should be reversed. The burden was upon the executor-respondent to prove that the appellant-husband had abandoned the decedent. (Matter of Rechtschaffen, 278 N. Y. 336; Matter of Maiden, 284 id. 429.) To meet that burden proof is required which would sustain a judgment of separation against the appellant and in favor of the decedent, if living. (Matter of Sadowski, 246 App. Div. 490; Matter of Maiden, supra.) The proof offered does not meet that requirement, and the finding of abandonment is disapproved and reversed. The conclusion of the surrogate that the appellant as surviving spouse is not entitled to a right of election to take a portion of his deceased wife’s estate against the provisions of her will is disapproved. The decree from which the appeal is taken is reversed on the law and facts, without costs, and a decree should be entered that the election of the appellant as surviving spouse is valid and effective. The matter is remitted to the Surrogate’s Court to proceed in accordance with this memorandum. All concur. (The decree adjudges that husband abandoned his wife and is not entitled to the right of election to take against her will.) Present — Crosby, P. J., Cunningham, Dowling, Harris and MeCurn, JJ.