In re the Estate of Sherman

34 Misc. 2d 67, 230 N.Y.S.2d 741, 1962 N.Y. Misc. LEXIS 3312

Opinion

Pierson R. Hildreth, S.

This is a construction proceeding to determine the construction, validity or effect of the provisions of paragraphs “second” and “ fourth ” of decedent’s will under which decedent made a specific devise of real property and a bequest of the residue of his estate to his wife. The proceeding was instituted by the executor for the reason that decedent and his wife, subsequent to the date of the will containing the above provisions, entered into a separation agreement and the marriage was also terminated by divorce.

Decedent was survived by his said wife and daughter who are the only parties concerned with this proceeding. It appears that they concur in the view that the provisions of the separation agreement and payments made by the husband under the agreement are inconsistent with the provisions of the-will for -the benefit of the wife, and as to such provisions, it was the intent and effect of the agreement .to nullify and revoke the will. (Titus v. Bassi, 182 App. Div. 387.) The wife has in fact executed an assignment and release in favor of the daughter for all her rights in the estate under decedent’s will including-any of decedent’s property, real or personal.

Accordingly, the court determines that paragraphs ‘1 second ’ ’ and “fourth” of the will were revoked by the separation agreement and are ineffective and of no validity, as a valid disposition in favor of the wife. The result is, that his estate not disposed of under the other provisions of the will, passed to and must be distributed as in intestacy to his daughter as sole distributee. ...