Muscillo v. Muscillo

283 A.D. 787

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 23, 1954
• Status: Published

Opinion

There has been a change in the parties since the decision in this case, materially affecting the necessity or desirability of entering a declaratory judgment. The action is to declare the marital status of the parties, and the defendant husband is now dead. All that matters now to plaintiff are her rights in the decedent’s estate. Whether her claimed widow’s interest in the estate is sufficiently protected by the separation agreement or will require her establishing herself as the wife of the decedent at the time of his death is a question not before us upon the present record and appeal and one that can more appropriately be determined by the Surrogate in the course of the administration of the decedent’s estate, The Surrogate at that time can rule upon the issue of widowhood, plaintiff’s right under the separation agreement, and the interests of all other parties in the estate who are not parties to the instant litigation, namely the second wife, her child, and the children of the first marriage. Whether the Surrogate determines the issues here referred to on the application for letters of administration or at some other stage of the administration proceedings, he should have before him at the time all of the parties in interest, including the infant child of the second marriage by a special guardian. Under the circumstances the order appealed from is unanimously modified so as to dismiss the complaint, not upon the merits, but in the exercise of discretion to refuse to entertain the action, with costs to the appellant, and, as so modified, affirmed. Present — Peck, P. J., Callahan, Breitel, Bastow and Bergan, JJ.