Estate of Ragone

• Decision Date: 09 September 1981
• Citation: 459 N.Y.S.2d 649,116 Misc.2d 993
• Parties: ESTATE OF Joseph A. RAGONE. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 649

459 N.Y.S.2d 649

116 Misc.2d 993

ESTATE OF Joseph A. RAGONE.

Surrogate's Court, New York County.

Sept. 9, 1981.

Merritt T. Viscardi, New York City, for petitioners.

Hyman L. Rutman, New York City, for respondent.

MILLARD L. MIDONICK, Surrogate.

In the pending probate proceeding, the decedent's widow has sought to revoke the preliminary letters testamentary issued to the decedent's sisters, the nominated executrices under the will, and to disqualify the sisters from appointment as executrices. The sisters have questioned the status of the widow and have sought a construction of the decedent's will. The widow has cross-moved for summary judgment and for an accounting. The parties are also disputing the ownership of the contents of the decedent's safe deposit box. A hearing was held with respect to the issues of the widow's status and the ownership of the safe deposit box contents.

The decedent, Joseph A. Ragone, died on May 20, 1980, at eighty years of age. He left a will, dated January 19, 1973, which has been offered for probate. The decedent's will provides a bequest to his wife, Josephine Ragone, of "all my furniture, furnishings, automobiles and all my other household goods and effects." The will then gives a $2,500 legacy to the decedent's brother, Vincent Ragone, and gives all of the decedent's "jewelry and articles of personal adornment", in equal shares, to the decedent's sisters, Antionette Viscardi and Camille Ragone. The will then provides as follows:

"SIXTH: I give and bequeath to my wife, JOSEPHINE RAGONE, if she survives me, such part of my estate as my wife would have received had I died intestate domiciled in the State of New York. In the event that my wife, JOSEPHINE RAGONE, shall die with me in a common accident or disaster, or under such circumstances as to make it impossible or difficult to determine which of us died first, or within sixty (60) days after my death, I direct that my wife shall be conclusively deemed not to have survived me.

"SEVENTH: In the event that my wife, JOSEPHINE RAGONE, shall predecease me, or shall be deemed not to have survived me in accordance with the provisions of paragraph "Sixth", all property, of all kinds, wherever situated, belonging to me at the time of my death, shall pass in accordance with the provisions of paragraph "Eighth".

"EIGHTH: All the rest, residue and remainder of the property which I own at my death I devise and bequeath to my sisters, ANTIONETTE VISCARDI and CAMILLE RAGONE, or the survivor. If neither of said sisters of mine shall survive me, I devise and bequeath my residuary estate to my brother, VINCENT RAGONE."

The decedent's two sisters are named as executrixes under Article NINTH of the will.

The proof adduced at the hearing established the following facts concerning the status of Josephine Ragone who claims to be the decedent's widow. The decedent married Josephine on September 10, 1963 in Greenwich, Connecticut and a valid marriage certificate is in evidence. The decedent and Josephine lived together as husband and wife continuously from the date of their marriage until the decedent's death in 1980. The decedent had been married twice before. The second marriage ended with the death of the wife in 1960. The first marriage terminated by divorce decree dated January 18, 1943 issued by the Supreme Court, County and State of New York which provided that:

Defendant [the husband-our decedent] is forbidden to marry any person other than plaintiff [the first wife] during the life time of the plaintiff except by express permission of the court." There is no evidence of any such permission having been obtained by decedent at any time with respect to his later second or third marriages. The decedent had a son with his first wife who lived with the first wife, his mother, after the divorce, and who was adopted by his stepfather in 1959 when the son was an adult.

The decedent's sisters contend that Josephine is statutorily excluded from the definition of "spouse" under EPTL 5-1.2, subd. (a), par (2) in that her marriage to decedent was a "prohibited" remarriage under Section 8 of the Domestic Relations Law in effect at the time of the marriage in 1963. Section 8 of the Domestic Relations Law was amended in 1968 to permit remarriages without court permission. Nevertheless, the court need not consider the effect of the statute, since it is clear to the court that the marriage took place in Connecticut. The marriage certificate clearly establishes that fact. The courts have held that the prohibition in a decree of divorce such as the one quoted above was penal in character and had no extra-territorial effect (Fisher v. Fisher, 250 N.Y. 313, 165 N.E. 460; Thorp v. Thorp, 90 N.Y. 602; Beaudoin v. Beaudoin, 270 A.D. 631, 62 N.Y.S.2d 920; Matter of Sokoloff, 166 Misc. 403, 2 N.Y.S.2d 602).

The testimony and all of the documentary evidence clearly proves that Josephine Ragone is the surviving spouse of the decedent herein. The decedent's sister testified that she attended the wedding reception of the decedent and Josephine. The Social Security Administration has recognized Josephine as decedent's wife, as has the insurance company which insured the decedent's life. The decedent and Josephine filed joint income tax returns as well. It is clear that the decedent and Josephine resided together and held themselves out as husband and wife continuously for seventeen years since their marriage in 1963 until the decedent died in 1980. Accordingly, the motion to strike the appearance and objections of Josephine Ragone in the probate proceeding is denied in all respects.

The construction question presented by the decedent's will concerns the meaning of Article SIXTH thereof which is quoted in full hereinabove, in which the decedent states, in part, that: "I give and bequeath to my wife, Josephine Ragone, if she survives me, such part of my estate as my wife would have received had I died intestate in the State of New York." The sisters argue that the decedent intended to give his wife an elective share, or, in the alternative, that the share of Josephine Ragone should be determined as in the case of a decedent survived by a spouse and a child, and without regard to the 1959 adoption of the decedent's son by his stepfather.

The sisters assert that parol evidence as to the decedent's intent should be admissible. Aside from the fact that the recollection and notes of the attorney-draftsman do not shed light on the decedent's intent, the language of the will does not permit resort to extrinsic evidence (Matter of Dearstine, 26 A.D.2d 736, 272 N.Y.S.2d 82; Matter of Lewin, 51 Misc.2d 141, 272 N.Y.S.2d 848, affd., 27 A.D.2d 971, 279 N.Y.S.2d 489; Matter of Scheubel, 43 Misc.2d 674, 251 N.Y.S.2d 999; Annot., 36 A.L.R.2d 147, 150 [1954] ). In Matter of Dearstine, supra, the decedent-husband gave his wife certain real property and cash and

"in addition such a portion of my estate which will in the aggregate equal the amount in property or cash which my wife would have been entitled to receive, had I died intestate. It being my intention that my said wife shall receive no more and no less than the proportion of my estate which the laws of the State of New York compel me to give, devise and bequeath unto her as my surviving spouse."

The Appellate Division, Third Department, stated at 26 A.D.2d 736, 272 N.Y.S.2d 82:

"We disagree with the Surrogate's determination that it was testator's intention to give to his widow one third of his estate--the share she would have been entitled to had she elected to take against the will under section 18 of the Decedent Estate Law in effect at the time of his death. The will clearly gives one half of the estate to the widow by providing in clear and unambiguous language: 'I give ... the amount in property or cash which my wife would have been entitled to receive, had I died intestate' as section 83 of the Decedent Estate Law, in effect at the time of the testator's death ... provided that one half of the net estate before taxes should pass to a widow where there was one child; and the will affords no basis for implying an election, which is a voluntary and personal act."

A similar determination was made by Surrogate Bennett in Matter of Scheubel, supra, where the will provided: "I give and bequeath to my wife.... from whom I am now and have been living separate and apart pursuant to a judgment of separation, such part of my estate as she shall be entitled to have by virtue of the law of the State of New York." The residuary estate was given to a friend of the decedent. The Surrogate found at 43 Misc.2d 674 at p. 675, 251 N.Y.S.2d 999:

"[T]he court is of the opinion that the language of the will does not permit resort to extrinsic...