Down v. Morris

• Decision Date: 13 February 1969
• Parties: Ruth Case DOWN, Appellant, v. Ardith Down MORRIS, as Executrix of the Estate of Elmer J. Down, Deceased, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 265

297 N.Y.S.2d 265

31 A.D.2d 870

Ruth Case DOWN, Appellant, v. Ardith Down MORRIS, as Executrix of the Estate of Elmer J.

Down, Deceased, Respondent.

Supreme Court, Appellate Division, Third Department.

Feb. 13, 1969.

A. Allen Saunders, New York City, for appellant.

Borst, Smith, O'Loughlin, Smith & Abbey, Schenectady, for respondent.

Before GIBSON, P.J., and AULISI, STALEY, COOKE and GREENBLOTT, JJ.

GREENBLOTT, Justice.

Appeal (1) from an order of the Supreme Court at Special Term which denied appellant's motion for summary judgment and granted respondent's cross motion for summary judgment, and (2) from the judgment entered thereon.

The appellant is the widow of Elmer J. Down, deceased, who died in Miami, Florida, on January 28, 1964. Both were residents of Florida at the time of his death. His will, executed in New York on October 29, 1962, named the respondent, his daughter, as executrix of the will and placed the bulk of his estate in trust with one half of the net income to be paid to his wife for life, and the other half to be paid to his daughter for life; the trust was to terminate on the death of the testator's wife with the corpus passing to the respondent.

The fifth clause of the will states: SU 'I elect and hereby declare that this Will and each and every disposition and provision herein contained shall be construed and regulated by and in accordance with the laws of the State of New York and the validity and effect of this Will and each and every disposition and provision herein contained shall be governed by the laws of the said State. It is my desire that this Will be probated in the State of New York and that the principal administration of my estate be had in said State, and that none of the assets of my estate, which may be found in said State, be remitted to any other jurisdiction for administration or distribution.'

Most of the estate consists of personal property located in the State of New York.

The will was filed in the Schenectady County Surrogate's Court on June 10, 1964, and admitted to probate. The will was also probated in Dade County, Florida, on November 10, 1964. Citations in the Florida proceeding were personally served on the respondent in New York, but she failed to appear. Pursuant to Florida law, appellant declared that she was not satisfied with the provisions in the will and elected to take dower of one third of the real and personal property of the deceased, free from all debts and expenses. The Florida court granted judgment for appellant, allowing her one third of the assets of the estate exclusive of debts and costs. Appellant then commenced this suit to declare the Florida judgment binding on respondent and entitling her to a judgment in the amount of one third of the New York property. Respondent's answer sets up the following defenses: the Florida court had no jurisdiction to render...