Matter of Nichols

• Decision Date: 10 August 1951
• Citation: 201 Misc. 922
• Parties: In the Matter of the Accounting of Jean P. Nichols et al., as Executors of Herman A. Nichols, Deceased.
• Court: New York Surrogate Court

201 Misc. 922

In the Matter of the Accounting of Jean P. Nichols et al., as Executors of Herman A. Nichols, Deceased.

August 10, 1951.

Bleakley, Platt, Gilchrist & Walker for executors, petitioners.

Davies, Hardy, Schenck & Soons for Lynette C. Nichols, respondent.

Irving Kirschenbaum, special guardian for Diana H. Nichols and others, infants, respondents.

Hamilton McInnes for State Tax Commission, respondent.

FRANKENTHALER, S.

Objections addressed to the rejection of her demand for payment of the sum of $25,000 have been filed by the former wife of deceased in this proceeding for the settlement of the account of the executors. The objectant bases her claim upon the promise of her husband to bequeath that amount to her pursuant to an agreement of settlement of property rights entered into between the parties at a time when an action he had brought against her for a divorce was pending in a Florida court.

The facts have been stipulated. In 1940, the decedent and the claimant, then residing in New York, ceased living together and entered into an agreement in which it was provided in part that the wife would share in the income of a trust under the will of the husband's mother. In June, 1946, the husband commenced a suit in Florida for a divorce, alleging that property rights between the parties had been settled by the 1940 agreement and consenting to its incorporation in the decree. The wife appeared in the action, interposing a counterclaim for a divorce and demanding modification of the agreement so as to require her husband to make additional provision for her support.

On January 27, 1947, the parties and their attorneys entered into a stipulation in the Florida proceeding providing that the hearing before the Special Master be closed without further testimony, and that the Special Master forthwith make his recommendation and report to the court. On the same day, the parties entered into a separate stipulation which was not filed with the court or Special Master. By the terms of this second stipulation the wife consented that the property settlement agreement remain in full force and effect and that it should be confirmed, ratified and approved in and by final decree, and she waived any right to seek its modification. In consideration of the said waiver, the decedent agreed to pay her $2,500, to pay her attorneys $500, to assign to her an additional share of his interest in his mother's estate and to bequeath the sum of $25,000 either to her or to their children, if she should predecease him.

On February 5, 1947, the parties executed an agreement in substantially the same form as the unfiled stipulation of January 27, 1947, but containing the additional provision that the will of the decedent would provide that the wife would be a creditor of his estate to the extent of $25,000 until that sum should be paid her. On February 13, 1947, the decedent executed a will bequeathing to the claimant the sum of $25,000. This will he later revoked by the will admitted to probate which contains no provision for the objectant.

On February 13, 1947, a final decree of divorce was granted the decedent. It provided, inter alia, that the agreement of separate maintenance and property settlement, dated August 7, 1940, be incorporated therein and be ratified, approved and confirmed; the terms of the agreement being "adopted in and by this decree as full, complete and final settlement of all alimony, separate maintenance, dower and property rights" between the decedent and the claimant. There was no reference to the agreement of February 5, 1947, in the decree nor in the Special Master's report on which it was based.

It is not denied that the testator's failure to make provision in his will for the payment of $25,000 to his former wife constituted a violation of the agreement of February 5, 1947. It is, however, argued not only that the Florida decree settling property rights is res judicata as to the present claim but also that the contract sued upon is unenforcible because of its alleged lack of consideration and because it tended to facilitate the procurement of a divorce. In none of these conclusions can the court concur.

It is well-settled law in this State that a separation agreement concerning property rights is not abrogated by a subsequent judgment for separation or divorce (Flood v. Thiesing, 273 App. Div. 548, affd. 298 N.Y. 700; Goldman v. Goldman, 282 N.Y. 296; Galusha v. Galusha, 116 N.Y. 635). Before such an agreement will be deemed merged in the decree, there must be a positive showing that such was the intention of the parties (Murray v. Murray, 278 App. Div. 183; see Goldman v. Goldman, supra, p. 305). That no intention to rescind their agreement of February 5, 1947, was entertained by the deceased and the objectant, is clear from the fact that it was executed several days after the submission of the stipulation withdrawing the defendant's counterclaim. Although purporting to submit the question of property rights to the Florida court for disposition in accordance with the terms of the 1940 agreement, actually the parties intended to and did remove the 1947 agreement from the court's consideration. The fact that they did not submit the latter settlement to the court does not for that reason make it any the less effective under the rationale of the cases hereinbefore cited.

It has been suggested, however, that under Florida law the divorce decree is conclusive as to all property rights of the parties and that the 1947 agreement is consequently unenforcible. In support of this contention the executors rely upon section 65.15 of the Florida Statutes (Vol. 5) entitled "Modification, alimony decrees, agreements, etc." This section, however, does no more than to provide a method, nowhere designated as exclusive (see Hagen v. Viney, 124 Fla. 747, 754-755), by which the parties may seek modification by the court of provisions for the wife's support. While the statute provides that once an order of modification is rendered, it fixes the only enforcible liability of the husband, this of course can have no relevance when no such order has been sought. Moreover, the Florida courts have indicated that enforcement will be granted to agreements which have been entered into in lieu of alimony in a subsequent divorce decree (see McAllister v. McAllister,...