In re Florance's Will , 61 N.Y. Sup. Ct. 328 ( 1889 )

Van Brunt, P. J.

This application is a renewal of one made in June, 1888, pursuant to leave duly given. It appears from the papers before the learned surrogate that the petitioner and appellant resides in the city of Philadelphia, state of Pennsylvania, and that he was the husband of Rosalie Florance, who died on October 12,1887, in Europe. That in Hovember, 1887, the last will and testament of said Rosalie was filed for probate with the surrogate of Hew York, and at the same time a petition was presented alleging that she had been previous to her death a resident of the county of New York. A citation was duly issued to and served upon all persons entitled to notice, including the petitioner, to attend the probate of the will. That the petitioner neglected to appear, and the said will was admitted to probate, and letters testamentary issued thereon. The petitioner stated in his petition that he did not attend the probate of the will, because he did not suppose that any of his rights would be affected thereby, and that within a week or so after said probate the petitioner learned that said will had been improperly probated, in that the deceased was not a resident of New York at the time of her death, and he was advised by counsel that steps should be taken t& modify and correct said probate; that thereupon, on June 21, 1888, a petition was presented to the surrogate’s court, upon which a citation was issued, and such proceedings had that in October, 1888, the motion was denied; and that pursuant to leave granted the petition in question was presented in December, 1888. It 'further appeared that the petitioner and said Rosalie were married in the year 1860, and in the city of New York, where she was born, and had always resided up to the time of her marriage to the petitioner. That the petitioner and his said wife then went to Philadelphia to live, and resided there until 1873, when they broke up housekeeping, and resided in various places. In the fall of'1875 the petitioner and his wife finally separated from one another, he making his home in Philadelphia, and she, with three children, in New York; she taking care of and maintaining them. The said Rosalie, from her savings of some property left her, accumulated some $60,000, which comprised her estate at her death. The petitioner claims that, as no legal separation had taken place between them, although they had lived apart for 12 years, the residence of his wife was that of her husband, viz., Pennsylvania, and that by the laws of said state he was entitled to share in her estate, which would not be the case, were she a resident of New York.

The whole claim of the plaintiff is based upon the old rule that a woman in marriage acquires the domicile of her husband, and changes it with him. It is admitted thatPa wife may procure a separate domicile for purposes of divorce, but it seems to be claimed that such domicile cannot be procured for any other purpose. The old rule in reference to a married woman’s domicile cannot certainly prevail, in view of the rights which are recognized to be hers by the statutes. The property relations between husband and wife have been entirely changed since the rule in question has obtained, and the reasons for the rule no longer exists. The wife is now a distinct legal entity, having in the disposition of her property all the rights, and even more, than a husband has ever possessed, and the husband has no control whatever over her movements or her disposition of her property. In the case at bar it appears that, in 1875, the petitioner and his wife agreed to separate; she to take their children and maintain them. They did separate, he going to Philadelphia, and she living' in New York, which had been her home before marriage, and supporting their children from her own means. There is no pretense that the petitioner ever contributed a cent to the support of his wife or their children since 1875, or offered to do so, and the best that he can say in his petition is that he never refused to provide a home for his said wife or her children in the city of Philadelphia. Probably he was never asked to do so, and consequently did not refuse; but he nowhere alleges that he offered to provide a home for his wife and children anywhere, and probably he did not. They had agreed to live separated, and she had agreed to support herself and her children. She then, by and with his consent, acquired a domicile in New York; made that her home, and that of her children; and certainly, if she was enough of a resident to institute divorce proceedings, as is conceded, she is enough of a resident to leave her property to her children, and to. be protected from the claim of a husband with whom she had not lived for 12 years, and who has not during that time either contributed or offered to contribute to her support or to that of their children, and who desires now, under a legal fiction, to take away from his own children a portion of their mother’s inheritance. The motion was decided correctly by the learned surrogate, and the order appealed from should be affirmed, with costs to each of the parties appearing as respondents.

All concur.