Fleischmann's Estate, In re

Decision Date03 December 1970
Citation64 Misc.2d 924,316 N.Y.S.2d 272
PartiesIn re ESTATE of Raoul H. FLEISCHMANN. Surrogate's Court, New York County
CourtNew York Surrogate Court

Hetkin, Barshay & Tuchman, New York City, for Peter F. Fleischmann, as Executor and Legatee; Winthrop, Stimson, Putnam & Roberts, by Merrell E. Clark, Jr., New York City, Trial Counsel.

Doman, Spellman & San Filippo, New York City, for Patricia Fleischmann, petitioner; (Joseph A. Cox, New York City, of counsel).

Debevoise, Plimpton, Lyons & Gates, New York City, for Dorothy La Marche, respondent.

Seymour M. Liebowitz, New York City, guardian ad litem.

S. SAMUEL DiFALCO, Surrogate.

The widow of the testator, having filed an election to take against his will, petitions the court to declare that she is entitled to take her elective share. Under the will and first codicil she is given the income of a trust consisting of 55% Of the residue of an estate which is said to have a gross value in excess of seven million dollars, but the value of her legacy is not one of the issues here. The executor's answer pleads an antenuptial agreement in which the petitioner expressly waived any right to elect to take against this particular will or any other will of this testator. In reply the petitioner contends that (a) the antenuptial agreement is void because it tends to promote or facilitate the dissolution of a marriage (viz., that of the testator and his former wife); (b) the testator lacked legal capacity to enter into an antenuptial agreement with petitioner because at that time he was married to another woman; and (c) the agreement was obtained 'through the overreaching of your petitioner and in fraud of her rights at a time and under circumstances when she lacked independent advice and counsel.'

The facts relating to the first ground of attack upon the agreement are mainly undisputed. The testator had been married three times. The dissolution of his first marriage is not relevant here. He and his second wife, Dorothy, separated some time prior to April 3, 1953 (the date they entered into a separation agreement) and they never afterwards resumed living together. The petitioner had served the testator as a registered nurse. In August 1965, the testator was eighty years of age; the petitioner, forty years old. Some months prior to August they presumably made arrangements to intermarry, the exact details of which are not disclosed, principally because of the bar of CPLR 4519.

The antenuptial agreement is dated August 13, 1965, was singed and acknowledged by the petitioner on August 13 and by the decedent on August 17. It recites that the two parties contemplate marriage when Mr. Fleischmann '(who is presently married) is free to do so.' Discussions about a divorce had been going on prior to this time between the attorneys for the husband and the attorney for the then Dorothy Fleischmann. The antenuptial agreement was excuted by the testator on the very same day and at the very same time as a special power of attorney in which he authorized a Mexican attorney to represent him in a divorce action 'instituted or to be Instituted' by his wife. The divorce action was instituted four days later, on August 21, 1965, and the decree of divorce is dated August 23, 1965. The testator and the petitioner were married in London on October 25, 1965.

It is petitioner's contention that the antenuptial agreement contained an implied promise on the part of the testator that he would divorce his wife, that the agreement is thus conditional upon his procuring the dissolution of a then subsisting marriage, and is consequently against public policy and void in all respects. She maintains that the negotiations for the divorce and for the antenuptial agreement were carried on during the same period and must be viewed as parts of an overall plan, as a result of which the testator did promote and facilitate the dissolution of his marriage to Dorothy Fleischmann (now Dorothy La Marche).

There is no doubt that the testator did promote the divorce proceedings, with the consent and cooperation of his then wife, and it would seem probable that he did so in order to be free to marry the petitioner. We are not concerned, however, with the validity of any agreement made by the testator and Dorothy Fleischmann or with the enforcement of any promises that may have been exchanged between them. There is no evidence that any formal agreement or exchange of promises was made by them. The subsequent marriage of Dorothy would indicate that a divorce was mutually desired, but their mutual arrangements are not material here. The antenuptial agreement is wholly separate and apart from any arrangement or agreement made by the testator with anyone else. Our concern is only with that antenuptial agreement between the petitioner and the testator and, of course, such surrounding facts and circumstances as add to or diminish the meaning of its terms.

The policy of this State has always been in favor of the preservation of the marriage relation, and contracts which have a direct tendency to promote a divorce have always been condemned as contrary to public policy. (Hettich v. Hettich, 301 N.Y. 447, 95 N.E.2d 40; Matter of Rhinelander, 290 N.Y. 31, 47 N.E.2d 681; Schley v. Andrews, 225 N.Y. 110, 113, 121 N.E. 812, 813; Lake v. Lake, 136 App.Div. 47, 119 N.Y.S. 686; Restatement of Contracts, § 586.) That Policy found expression in our statutes, originally as a proviso to the Married Women's Act (L.1892, Ch. 594 amending L.1884, Ch. 381), later incorporated in the Domestic Relations Law (L.1896, Ch. 272, § 21; L.1909, Ch. 19, § 51), now in the General Obligations Law ( § 5--311, as amended by L.1966, Ch. 254, § 12). The Court of Appeals has said: 'This Court has never hesitated to enforce that statute and to strike down any agreement fairly within its intendment. * * * Some of the New York cases have gone beyond the letter of the statute (Domestic Relations Law, § 51), which refers in terms only to a 'contract to alter or dissolve the marriage' and have refused sanction to agreements which directly tended toward such a dissolution. But our progress in the direction of broadening the coverage of section 51 has gone no further than to apply that section, and its policy, to agreements which have a Direct tendency toward dissolving marriages.' (Matter of Rhinelander, Supra, 290 N.Y. pp. 37--38, 47 N.E.2d p. 684.)

The agreement before the court in the Rhinelander case was held not to have a direct tendency toward dissolving a marriage in which a permanent separation began one month after the ceremony. The ensuing years brought litigation by both parties. In the course of little more than one year, the husband obtained a decree of divorce in Nevada based upon service by publication, the wife sued her father-in-law (the testator) for alienation of affections, and she instituted an action in New York for a separation. All of their lawsuits were adjusted in agreements in which the husband promised to make annual payments for the support of the wife, and the testator guaranteed the payments. However, these payments were conditioned upon the wife's taking any one of three steps, any of which would result in making her a party to the Nevada divorce action. The agreements were signed, but were never delivered to the wife until she had made a formal appearance in that action and obtained a modification of the decree so as to award support to her in the sums provided in the agreements (which though signed, had not been delivered). The court found as a fact that the real intent of the parties was that the agreements would not have been delivered had not the Nevada decree been reopened on the wife's petition and the support agreement incorporated in that decree, and it also found that in substance what the wife did was to agree to give the Nevada decree the same force and effect as if it had originally been obtained upon her appearance. Nonetheless the Court of Appeals ruled that although a contract is void which binds a party to do something that is contrary to our public policy, 'the contract here did not, in terms or in meaning, so bind anyone.' (290 N.Y. 31, at p. 39, 47 N.E.2d 681, at p. 685.) This conclusion was made despite acceptance of the lower court finding that the agreements were being withheld from the wife pending her giving to the divorce decree the appearance of due process of law.

Butler v. Marcus, 264 N.Y. 519, 191 N.E. 544, is another ruling that a contract which does not directly tend toward dissolution of the marriage, is valid. There the parties had entered into a separation agreement which provided for generous payments to the wife but also provided that in the event the parties were still united in marriage at the end of the year, all of the terms and promises would cease to be binding upon either of them. If, however, either party obtained a divorce from the other before the year's end, the agreement would continue in full force. The wife did obtain a decree of divorce within the time specified, the husband failed to make the promised payments, and suit was brought on the agreement. One of the defenses interposed by the husband was that the agreement was contingent upon dissolution of the marriage and was therefore void. Summary judgment striking out that defense as insufficient in law was granted and affirmed on appeal. The validity of a contract was also upheld in Abeles v. Abeles, 197 Misc. 913, 96 N.Y.S.2d 423 upon a very similar fact pattern.

On the other hand, a collateral oral agreement was held to have a direct tendency to dissolve the marriage in Viles v. Viles, 14 N.Y.2d 365, 251 N.Y.S.2d 672, 200 N.E.2d 567, and the written agreement was there ruled invalid.

In the sharply divided decision, the majority found the evidence to be sufficient to support the finding that the wife's oral agreement to obtain a divorce was a condition to the execution of the written contract by the husband. The Court of Appeals...

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  • Waxstein v. Waxstein
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    ...791, 297 N.Y.S.2d 298, 244 N.E.2d 869), nor does the paragraph have a direct tendency to promote a divorce (Matter of Fleischmann, 64 Misc.2d 924, 926, 316 N.Y.S.2d 272, 274, affd. 37 A.D.2d 1044, 326 N.Y.S.2d 1. Judgment of Divorce. Plaintiff is entitled to a judgment of absolute divorce p......
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    ...228 N.Y.S.2d 724 [1st Dept.1962]; Kessler v. Kessler, NYLJ, 9/22/89, p. 24 col. 6 [Sup.Ct. Kings Co.]; Matter of Fleischmann, 64 Misc.2d 924, 316 N.Y.S.2d 272 [Surr.Ct. NY Co.1970]; see, also, Matter of Wilson, 66 A.D.2d 893, 411 N.Y.S.2d 685 [2d Dept.1978], affd., 50 N.Y.2d 59, 427 N.Y.S.2......
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