In re the Estate of La Due

Kimball, J.

The question presented is whether the surviving husband of the testatrix, Mary C. La Due, by virtue of the provisions of a separation agreement entered into on May 26, 1920, effectively waived or released all his rights in the estate of the said testatrix, pursuant to subdivision 9 of section 18 of the Decedent Estate Law. The surviving husband, being an adjudged incompetent, his claimed right of election to take against the will was duly exercised by the committee of the incompetent, in accordance with subdivision 6 of section 18 of said law. The petition to the Surrogate for the determination of the validity of the election was by the executor of the last will of the deceased wife. The will was executed on July 20, 1950. There was no mention of the husband therein and no provision was made for his benefit. The testatrix died on August 14, 1955. The will was probated on October 4, 1955. The primary and principal beneficiary under the will is Edward C. La Due, son of the testatrix. We are not informed of the character or size of the estate. However, that information is not essential to our determination.

It is unnecessary to here recite the whole separation agreement. The parties agreed “ to live separate and apart from each other during their natural life.” The husband agreed to permit the wife to reside where she chose and promised not to ‘ ‘ sue, molest, disturb or trouble any person whomsoever, for receiving, entertaining or harboring her; and that he will not claim or demand, any of her moneys, jewels, plate, clothing, household goods or furniture, which the said Mary G. La Due now hath in her power, custody or possession, or which she may at any time hereafter have, or which shall be devised or given to her, or that she may otherwise acquire.” The husband then agreed to convey to the wife his interest in a house and lot, then the home of the parties and he agreed to transfer to her the household furniture then in the house, with certain exceptions. The above, in brief, is a statement of everything which the husband promised or agreed to do and of everything, including any rights he had, which he either waived or released. The remainder of the agreement is a recitation of the agreements and releases by the wife which presumably were carried out. The wife agreed to pay the husband $800 in cash and $100 to one Hurley 1 ‘ balance due him for attorneys fees for which the first party [husband] might be responsible.” The wife, as second party, released the husband of all obligation of support and care of herself and the son, Edward. She also released her inchoate dower interest in any real property of the husband which he then owned or thereafter acquired and appointed an attorney in fact to execute ‘ ‘ any release or conveyance of said inchoate right of dower.”

Some testimony was taken before the Surrogate which sheds no light upon the issue. No memorandum or opinion was written by the Surrogate except the statement at the close of the hearing that: ‘c The Court finds that it is a valid agreement and there is no right of election.” There was no contention as to the validity of the separation agreement. That was not the issue. The question was whether, by the execution of the separation agreement, the husband intended to waive or release all rights in the wife’s estate so as to effect a waiver or release of his right of election. This question the Surrogate did not consider, evidently being of the opinion that if the separation agreement was valid, it followed that there could be no right of election.

The agreement between the husband and wife having been made prior to the enactment of section 18 of the Decedent Estate Law, the relevant portion of subdivision 9 of the section is as follows:

“A waiver or release of all rights in the estate of the other spouse shall be deemed to be a waiver or release of the right of election as against any last will.”

There being no evidence to show the intention of the husband except the agreement, the intention must necessarily be gathered from the provisions of the agreement itself. The burden of establishing a waiver is upon the one who asserts it. (Matter of Colaci, 288 N. Y. 158, 162.) We are convinced that the agreement herein falls far short of being a “ waiver or release of all rights in the estate ’ ’ of the testatrix.

The respondents rely almost solely upon the decision in Matter of Sturmer (303 N. Y. 98), When that case was before this eonrt (277 App, Div. 503), we divided three to two in holding that there was no waiver of the right of election. The Court of Appeals unanimously reversed and the reasons for such reversal were clearly and unmistakenly stated in the opinion of Judge Xjewis. There it was pointed out (p, 105) that the agreement in question referred to “ all right, title or interest of every kind, name and nature, she may have In the instant case, the husband merely agreed not to “claim or demand” certain specified categories of personal property. In the Sturmer agreement, the wife not only released “ all right, title or interest ” in her husband’s property which he then had or might acquire in the future but she agreed to execute releases ‘ ‘ which may or might become proper and necessary to be executed, and having to do with or affecting the interests, property, property-rights, and estate of the first party, her said husband ⅝ * ⅝.” In the agreement before, us, there is nowhere a mention of “ estate It was largely upon the word “ estate ” that the Court of Appeals made its determination. To hold that the agreement here considered, was a ‘ ‘ waiver or release of all rights in the estate of the other spouse ” would necessitate the writing of a new agreement for the parties and one which, we think, was never within their contemplation when it was made in 1920, prior to any statute giving a surviving spouse the right to take against the will of the other. At that time, there were dower and curtesy. The husband conveyed his interest in the home to the wife and she in turn released her inchoate right of dower as to real property subsequently acquired by him. There having been a child born alive of the marriage, the husband had the right of curtesy in the wife’s real property, after her death. Not only are there no words of waiver and release as to real property of the wife but real property then owned or after acquired by the wife is not mentioned. The husband did not waive or release his right of curtesy.

There are no words, sentences or phrases which indicate that the husband did more than to agree not to demand certain classes of personal property which the wife had or might have during her life. There was no release of other classes of personal property during the wife’s life or in her “ estate ” after her death. No mention was made of stocks, bonds, mortgages, domestic animals, equipment or other items of personal property. A waiver or release of something less than “ all rights in the estate of the other spouse ” is not a compliance with the statute (Decedent Estate Law, § 18), and may not “ be deemed to be a waiver or release of the right of election as against any last will.” (Matter of Colaci, 288 N. Y. 158, supra; Matter of Sachs, 155 Misc. 233, affd. 246 App. Div. 546; Thompson v. Thompson, 163 Misc. 946, affd. 254 App. Div. 601; Matter of Lamash, 8 Misc 2d 544).

The decree should be reversed and the matter remitted to the Surrogate’s Court to enter an order or decree in accordance-with this opinion.