In re the Estate of Lewis

114 A.D.3d 203, 978 N.Y.S.2d 527
Appellate Division of the Supreme Court of the State of New York·Decided January 3, 2014·No. Appeal No. 1·Published

Opinions

OPINION OF THE COURT

SCUDDER, EJ.

I

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,

[206]*206In 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] [1], [3]). 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 former 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). Fol[207]*207lowing 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.

II

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] [2] [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] [1] [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 AD2d 839, 840 [1994]; see Matter of Jared, 225 AD2d 1049, 1049 [1996]; see generally Misicki v Caradonna, 12 NY3d 511, 519 [2009]; Bingham v New York City Tr. Auth., 99 NY2d 355, 359 [2003]). 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 NY2d 714, 718 [1997]). 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 NY3d 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] de[208]*208serves 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 AD3d 876, 878 [2007]; see e.g. Hann v Black, 96 AD3d 1503, 1503-1504 [2012]; CB Richard Ellis, Buffalo, LLC v D.R. Watson Holdings, LLC, 60 AD3d 1409, 1410 [2009]). Indeed, to decide this appeal on issues never raised by the objectants would “implicate due process concerns” (McHale v Anthony, 41 AD3d 265, 267 [2007]).

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, 679 [1931], affd 258 NY 186 [1932]).

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In re the Estate of Lewis, 114 A.D.3d 203, 978 N.Y.S.2d 527 (N.Y. Ct. App. 2014).

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