Lewin, In re

• Decision Date: 04 August 1966
• Citation: 272 N.Y.S.2d 848,51 Misc.2d 141
• Parties: In re LEWIN. In re LEWIN'S WILL. Application of Leah McKUNE, Guardian of William H. Lewin, Incompetent, for aDetermination as to the Validity, Construction or Effect of the Disposition ofthe Property contained in the Last Will and Testament of Mary Ellen Lewin, Deceased. Surrogate's Court, Broome County
• Court: New York Surrogate Court

Page 848

272 N.Y.S.2d 848

51 Misc.2d 141

In re LEWIN.

In re LEWIN'S WILL.

Application of Leah McKUNE, Guardian of William H. Lewin,

Incompetent, for aDetermination as to the Validity,

Construction or Effect of the Disposition ofthe Property

contained in the Last Will and Testament of Mary Ellen

Lewin, Deceased.

Surrogate's Court, Broome County.

Aug. 4, 1966.

Willsey, Meagher, Hummer, Madigan & Buckley, Binghamton (Frederick J. Meagher, Binghamton, of counsel), for Leah McKune, Guardian of William H. Lewin, Incompetent, petitioner.

Levene, Gouldin & Thompson, Binghamton (David L. Dyer, Binghamton, of counsel), for Winifred S. Robertson and Florence E. Hunter, respondents.

DECISION

JOHN M. KEANE, Surrogate.

This construction proceeding was initiated by the guardian of an incompetent veteran, William H. Lewin, the surviving husband of Mary Ellen Lewin, who died September 27, 1965. Her last will and testament (executed on June 17, 1953) was admitted to probate by this court on November 8, 1965.

Her entire will was very brief. The relevant portions giving rise to this construction proceeding are as follows:

'SECOND: I give, devise and bequeath unto my beloved husband, WILLIAM H. LEWIN, the share and interest in my estate to which he is entitled under the Decedent Estate Law of the State of New York.

'THIRD: All the rest, residue and remainder of my property, both real and personal, of whatsoever kind, name, nature and description and wheresoever situate, I give, devise and bequeath to my sister, WINIFRED S. ROBERTSON of Port Elgin in the Province of Ontario and Dominion of Canada, and to my sister, FLORENCE E. HUNTER of 193 Osler Street in the City of Toronto in the Province of Ontario and Dominion of Canada, to be divided equally between them, share and share alike.'

The petitioner contends that the gift to decedent's husband, William H. Lewin, is the share which he would have received had she died intestate. At the date of her death, September 27, 1965, this share would be her entire estate. (Section 83(4), Decedent Estate Law.)

The respondents, who are Winifred S. Robertson and Florence E. Hunter, sisters of the decedent, make alternative contentions. Respondents contend primarily that paragraph 'SECOND' gives William H. Lewin, the decedent's husband, only that share to which he would be entitled under a right of election against the will. (Section 18, Decedent Estate Law.) In the alternative, if that contention is denied, respondents contend that the disposition of the porperty should be made in accordance with the law of descent and distribution as it existed at the date of the execution of the will (June 17, 1953).

This will was prepared by an attorney. The court does not have the latitude allowed when presented with an instrument prepared by one other than a lawyer.

Of what date does this will speak, the date of execution or the date of death? Unquestionably the general rule is that a will speaks as of the date of death. The authorities submitted by the respondents do not support their argument that the language of this will allows an interpretation that its dispositions should be made as of the date of execution. This is not a situation where, for example, a question of advances made by the decedent in his lifetime would be involved to ascertain the situation at the time the will was made. Nor is it the situation where it would be necessary to learn whether the decedent had the particular property at the time the will was executed which was specifically bequeathed in the will. $yNo extrinsic evidence was submitted nor does this court believe under the circumstances here that such evidence if submitted would be admissible.

The argument that the will speaks as of the date of execution probably would not have been made but for the amendments to the law of descent and distribution made by Chapter 712 of the Laws of 1963 which became effective March 1, 1964. This legislation was enacted upon the recommendation of the Temporary Commission on Estates (see Legislative Document (1963) No. 19, pages 166--203). A significant change was made concerning the rights of brothers and sisters of a decedent survived by a spouse and no descendants or parents.

Under the new legislation in that situation, the surviving spouse takes all of the property. Under the law existing at the time of the execution of the will by Mary Ellen Lewin, the surviving spouse took the first $10,000.00 and the balance was divided one-half to the surviving spouse and one-half among the brothers and sisters (or descendants, when deceased) of the decedent. A substantial policy change was made in the law of descent and distribution of New York.

There was no offer of any evidence that subsequent ot March 1, 1964, the effective date of the revised law on descent and distribution, that the decedent, Mary Ellen Lewin, was unable to make any changes in her will had she so desired.

The laws of descent and distribution, being a matter of legislative enactment, are subject to amendment. Earlier significant amendments were made to the law of descent and distribution as a result of the work of the Commission to Investigate Defects in the Laws of Estates, which was headed by the late Mr. Surrogate Foley. These changes became effective September 1, 1930. Laws relating to descent and distribution have been changed in the past. Unquestionably, with changes in the social structure, they will be changed in the future.

An early case concerning a change in the Decedent Estate Law by the Laws of 1919 was Matter of Gaffken's Will, 197 App.Div. 257, 259, 188 N.Y.S. 852, 854 (1921), affd. 233 N.Y. 688, 135 N.E. 971 (1922). In the decision in the Appellate Division, the court said:

'But for the meaning and effect of the will we are to look to the law at time of the testator's death. (Cited cases omitted) Otherwise new legislation would never begin to take effect until after the prior wills had been outlived.'

In Matter of Owens' Estate, 186 Misc. 777, 778, 780, 65 N.Y.S.2d 221, 223 (1945), the decedent's will contained language similar to that of the will in question. It reads as follows:

'SECOND: I give, devise and bequeath to my wife, Florence L. Owens, such interest in my real and personal property as she would take under the Laws of the State of New York.'

The changes made in the laws effective September 1, 1930 were before the court. The will had been executed prior to that date and the decedent died subsequent to that date. In that respect the situation is similar to the case before this court.

Like the will before this court, the next paragraph made a disposition of the residuary estate. In its decision, the court said:

'Testator by his words, 'laws of the State of New York,' shows that he knew that the descent and distribution of property were regulated by statute. He must be assumed to have known that statutes of distribution could be changed at any time, and that the share which his wife would take under the laws of the State of New York, could be increased or diminished at any time after the execution of his will. Matter of Koch's Estate, 282 N.Y. 462, 27 N.E.2d 10. Had he desired to measure or limit her share by the laws in effect on the date of the execution of his will, he had only to add the words, 'in effect on this date,' or the word, 'present.' This he did not do. The court dannot imply words intentionally omitted. Roseboom v. Roseboom, 81 N.Y. 356.'

The court in that case determined that the surviving spouse was entitled to the intestate share as determined by the laws in effect on the date of death.

Matter of Loch's Estate, 282 N.Y. 462, 27 N.E.2d 10 (1940), mentioned in Matter of Owens' Estate, supra, involved a situation where the Decedent Estate Law had been amended by Chapter 181 of the Laws of 1938, effective March 28, 1938. There the court stated (p. 465, 27 N.E.2d p....