In re the Estate of Falanga

Appellate Division of the Supreme Court of New York

In re the Estate of Falanga

36 A.D.2d 918, 320 N.Y.S.2d 989, 1971 N.Y. App. Div. LEXIS 4117

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 11, 1971

StatusPublished

This text of 36 A.D.2d 918 (In re the Estate of Falanga) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Falanga, 36 A.D.2d 918, 320 N.Y.S.2d 989, 1971 N.Y. App. Div. LEXIS 4117 (N.Y. Ct. App. 1971).

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Opinion

[919]*919Concur—Markewich, J. P., McNally, Steuer and Tilzer, JJ.; Nunez, J., dissents in the following memorandum: The issue of whether or not the widow and her deceased husband had effected a reconciliation and thus abrogated the agreement of waiver of their interests in each other’s estate should not be decided without a trial. I agree with the Surrogate that ,the course of the previous appeals in this case leaves open all issues except that letters of administration to the widow had been properly revoked. The Court of Appeals so stated in limiting its affirmance of this court’s decision (23 N Y 2d 860). The majority states: “In this posture, whatever relief the widow may be advised to seek in further proceedings, the petitioning nephew is a prospective distributee.” But the only manner in which the nephew can become a distributee is by excluding the widow. Thus, she is being summarily and without due process, deprived of a valuable right notwithstanding that a separation decree had been entered in Tier favor. The order directing a hearing should be affirmed.

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[919]*919Concur—Markewich, J. P., McNally, Steuer and Tilzer, JJ.; Nunez, J., dissents in the following memorandum: The issue of whether or not the widow and her deceased husband had effected a reconciliation and thus abrogated the agreement of waiver of their interests in each other’s estate should not be decided without a trial. I agree with the Surrogate that ,the course of the previous appeals in this case leaves open all issues except that letters of administration to the widow had been properly revoked. The Court of Appeals so stated in limiting its affirmance of this court’s decision (23 N Y 2d 860). The majority states: “In this posture, whatever relief the widow may be advised to seek in further proceedings, the petitioning nephew is a prospective distributee.” But the only manner in which the nephew can become a distributee is by excluding the widow. Thus, she is being summarily and without due process, deprived of a valuable right notwithstanding that a separation decree had been entered in Tier favor. The order directing a hearing should be affirmed.

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Bluebook (online)

36 A.D.2d 918, 320 N.Y.S.2d 989, 1971 N.Y. App. Div. LEXIS 4117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-falanga-nyappdiv-1971.