Estate of Clark, In re

• Decision Date: 28 February 1968
• Citation: 288 N.Y.S.2d 993,236 N.E.2d 152,21 N.Y.2d 478
• Parties: , 236 N.E.2d 152 In the Matter of the ESTATE of Robert V. CLARK, Jr., Deceased. N. Holmes CLARE et al., Appellants, v. Elizabeth D. CLARK, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 993

288 N.Y.S.2d 993

21 N.Y.2d 478, 236 N.E.2d 152

In the Matter of the ESTATE of Robert V. CLARK, Jr., Deceased.

N. Holmes CLARE et al., Appellants, v. Elizabeth D. CLARK, Respondent.

Court of Appeals of New York.

Feb. 28, 1968.

Edward J. Reilly, Jr., Alexander D. Forger, New York City, and Samuel S. Polk, Oyster Bay, for N. Holmes Clare and another, appellants.

John B. Loughran, New York City, as special guardian for infants, in person, and Joseph H. Spain, New York City, for John B. Loughran, appellant.

John B. Jessup, B. Brooks Thomas and Paul S. Byard, New York City, for respondent.

FULD, Chief Judge.

This appeal poses an interesting and important question concerning a widow's right of election to take against her husband's will. More particularly may her husband, domiciled in a foreign state, by selecting New York law to regulate his testamentary dispositions, cut off or otherwise affect the more favorable right given his widow to elect by the law of their domicile?

In the case before us, Robert V. Clark, Jr., died in October of 1964, domiciled in Virginia, and there his widow continues to reside. His estate, consisting of property in Virginia and in New York, had an aggregate value of more than $23,000,000--the bulk of which consisted of securities on deposit with a New York bank. His will, made in 1962, contained a provision that 'this Will and the testamentary dispositions in it and the trusts set up shall be construed, regulated and determined by the laws of the State of New York.' It devised the Clark residence in Virginia, together with its contents, to the widow and created for her benefit a preresiduary marital deduction trust--under which she would receive the income for life, with a general testamentary power of appointment over the principal of the trust. The residue of the estate, after payment of estate taxes, was placed in trust for the testator's mother. There has been a bi-state administration of the estate. The New York executors are administering the major portion of the estate--consisting, as noted, of securities held in New York during Mr. Clark's lifetime--and the Virginia executors are administering the balance, including the real and tangible personal property located in Virginia.

The testamentary trust for the widow's benefit would satisfy the requirements of section 18 of our Decedent Estate Law, Consol.Laws, c. 13. However, it is conceded that, under the statutes of Virginia, the widow has an absolute and unconditional right to renounce her husband's will and take her intestate share (in the absence of issue, one half) of his estate outright (Virginia Code, § 64--16). ¹ Timely notice of the widow's election having been given, the New York executors initiated this special proceeding in the Surrogate's Court, pursuant to section 145--a of the New York Surrogate's Court Act. The petition requests a determination denying the widow any right of election on the grounds that the terms of the will barred her from recourse to Virginia law and that, under New York law, the testamentary provisions in her favor were sufficient. The executors contend that, by declaring that his testamentary dispositions should be construed by the laws of New York, the testator meant to bar his widow from exercising her Virginia right of election and that section 47 of the Decedent Estate Law requires that we give effect to his purpose. That section-- replaced, since the testator's death, by a very similar provision (EPTL 3--5.1, subd. (h))--provided, in essence, that, when a nondomiciliary testator recites in his will that he elects that his 'testamentary dispositions' shall be construed and regulated by the laws of New York, 'the validity and effect of Such dispositions shall be determined by such laws.' ²

The Surrogate upheld the executor's position. On appeal, the Appellate Division reversed, deciding that the widow's right to take in opposition to the will must be determined by the law of the domicile of the parties. Section 47--which relates solely to the decedent's 'testamentary dispositions' and their validity and effect--was inapplicable, the court concluded, because 'the right of a widow to inherit despite the will is not a 'testamentary disposition' in any sense' but is, on the contrary, 'a restriction on the right to make a testamentary disposition.' (28 A.D.2d 55, 57, 281 N.Y.S.2d 180, 183.)

We thoroughly agree with the Appellate Division's construction of the statute and with the conclusion it reached.

As already appears, section 47 permits a foreign domiciliary to have the validity and effect of his 'testamentary dispositions' construed and regulated by the laws of this State. A regard for the language of the statute, as well as its legislative history and the policy to be served by it, clearly demonstrates that the words 'testamentary dispositions' and 'the validity and effect of such dispositions' do not encompass the right accorded a spouse to elect to take in opposition to the will.

Indeed, our statutes, in terms, draw a distinction between the two concepts, between the decedent's 'testamentary disposition' and the spouse's right to elect. Section 145 of the Surrogate's Court Act (now SCPA 1420)--a statute procedurally related to section 47--gave the surrogate jurisdiction to determine 'the validity, construction or effect of any Disposition of property contained in a will'. ³ And, in contrast section 145--a of the Surrogate's Court Act (now SCPA 1421) gave the court jurisdiction of proceedings for the 'determination as to the validity or effect of any Election to take an intestate share against the provisions of a will'. This latter provision appeared in our law for the first time in 1929 (eff. Sept. 1, 1930) as part of the same legislative package which included the first statute creating a right to elect against a will (L.1929, ch. 229, §§ 4, 9). It is apparent--and highly significant--that the Legislature deemed it necessary to adopt this new procedural section (§ 145--a), despite the long-time presence on the statute books of the avove-mentioned provisions empowering the surrogate to determine 'the validity (and) effect of a Testamentary disposition'. It is also significant that the proceeding now before us was brought, and properly so, under section 145--a, dealing with the 'validity or effect of any election' rather than under section 145 which deals with testamentary dispositions.

The difference between the wording of section 145 and the much more recent section 145--a merely reflects the profound differences, in history and design, between the law of testamentary dispositions, of which section 47 of the Decedent Estate Law is a part, and the law of election to take in opposition to testamentary dispositions, embodied in section 18.

Unlike the expressions of intent which constitute testamentary dispositions, the right of election, both in Virginia and New York, is statutory in nature and exists wholly outside of, and in direct contravention to, the provisions of a will. (See Newman v. Dore, 275 N.Y. 371, 375, 9 N.E.2d 966, 967, 112 A.L.R. 643; Matter of Greenberg, 261 N.Y. 474, 478, 185 N.E. 704, 705, 87 A.L.R. 833; First Nat. Exch. Bank of Roanoke v. Hughson, 194 Va. 736, 74 S.E.2d 797; Gentry v. Bailey, 6 Grat. (47 Va.) 594.) As the court noted in Matter of Greenberg, 261 N.Y., at p. 478, 185 N.E., at p. 705, section 18 of the Decedent Estate Law, when enacted in 1929, introduced into this State a 'new public policy which no longer permit(ted) a testator to dispose of his property as he please(d).' This being so, it necessarily follows that the widow's right of election--or, more precisely, its availability or nonavailability--is not a 'testamentary disposition' whose validity and effect may be controlled by the provisions of a will under section 47. In the words of the Appellate Division, the spouse's right of election, far from being a testamentary disposition, is a 'restriction on the right (of the decedent) to make (such) a * * * disposition.'

A moment's reflection is all that is necessary to establish the difference between statutes which have to do with restrictions placed on the decedent's testamentary power--for instance, to disinherit his spouse or other members of his family--and those which bear on discerning and carrying out the testator's wishes and desires. Section 47 is an example of the latter sort of legislation. Its earliest version (Code Civ.Proc., § 2694 (L.1880, ch. 178)) simply reflected the traditional choice of law rules, referring dispositions of personal property to the law of the decedent's domicile. (See Holmes v. Remsen, 4 Johns. Ch. 460, 461; see, also, Fowler, Decedent Estate Law of New York, 324.) It provided that the 'validity and effect * * * of a testamentary disposition' of real property were to be regulated by the law of the situs and those of personalty by the law of the domicile; no exception was made for a case in which the testator might express a contrary intent.

Despite this statute, cases decided before (see, e.g., Chamberlain v. Chamberlain, 43 N.Y. 424, 433--434), as well as after (see St. John v. Andrews Inst., 191 N.Y. 254, 267, 83 N.E. 981, 983; Robb v. Washington & Jefferson Coll., 185 N.Y. 485, 496, 78 N.E. 359, 363; Hope v. Brewer, 136 N.Y. 126, 139, 32 N.E. 558, 561, 18 L.R.A. 458) its adoption, held that, when personalty had been placed outside the domiciliary jurisdiction, a testamentary disposition of the property which violated (for example) the domicile's rule against perpetuities or its mortmain statute--the cases dealt almost invariably with charitable bequests--would be given effect if valid under the law where the property was situated. The declared purpose of the courts was, if possible, to give effect to, and not frustrate, the testamentary dispositions; the reasoning underlying these determinations was that perpetuities and mortmain affected only the administration of the...