Matter of Tamburri

• Decision Date: 14 November 1950
• Citation: 198 Misc. 809
• Parties: In the Matter of The Estate of Angelina L. Tamburri, Deceased.
• Court: New York Surrogate Court

198 Misc. 809

In the Matter of The Estate of Angelina L. Tamburri, Deceased.

November 14, 1950.

Giden & Giden for Frank J. Lisella and another, as ancillary executors of Angelina L. Tamburri, deceased, petitioners.

Davies, Hardy, Schenck & Soons for respondents.

BOYLAN, S.

This is an application for a determination as to the validity and effect of a notice of election served and filed by Annibale Tamburri the surviving spouse pursuant to section 18 of the Decedent Estate Law.

Angelina Lisella Tamburri died on April 1, 1948, a resident of the State of New Jersey, leaving a last will and testament dated November 15, 1947, which was duly admitted to probate by the Surrogate of Essex County, New Jersey, on April 30, 1948. Letters testamentary were duly issued to the executors named therein on May 1, 1948. The decedent made no provision in her will for her husband, but devised and bequeathed all of her estate to her children. On December 9, 1948, an order was made directing that the will probated in Essex County, New Jersey, and letters pursuant to said probate be recorded in this court. On January 12, 1949, ancillary letters testamentary were duly issued out of this court to the executors named in the will, the petitioners in this proceeding. At the time of her death decedent was seized and possessed of certain real property in the county of Richmond, State of New York. On April 6, 1949, decedent's husband, a resident of New Jersey, filed a notice of election in this court which was duly recorded.

Petitioners contend that the right of election is not available to the surviving spouse as the decedent was a resident and domiciled in the State of New Jersey. They further contend that a right of election may not be asserted in ancillary proceedings; that the surviving spouse is barred from making an election as six months have elapsed since the issuance of letters testamentary by the Surrogate of Essex County, New Jersey; that his time has not been enlarged; and that more than twelve months have elapsed since the issuance of letters testamentary.

Subdivision 7 of section 18 of the Decedent Estate Law reads in part as follows: "An election made under this section shall be in lieu of any right of dower, and must be made within six months from the date of the issuance of letters testamentary or if letters testamentary have not been issued from the date of the issuance of letters of administration with the will annexed, and shall be made by serving written notice of such election upon the representative of the estate personally or in such other manner as the surrogate may direct and by filing and recording a copy of such notice with proof of service in the surrogate's court where such will was probated."

The language of section 18 is devoid of any limitations or restrictions as to its applicability to estates of residents or the surviving spouses of resident decedents. It has been held that subdivision 7 of section 18 of the Decedent Estate Law is remedial and should have interpretation which gives the broadest possible protection to the surviving spouse (Matter of Altman, 160 Misc. 812). It has been frequently enunciated that the rights granted by section 18 are to be liberally construed in favor of a surviving spouse (Matter of Byrnes, 260 N.Y. 465; Matter of Zalewski, 292 N.Y. 332; Matter of Matthews, 255 App. Div. 80, affd. 279 N.Y. 732; Matter of Goldsmith, 174 Misc. 270; Matter of Brill, 175 Misc. 236).

It is a well-established rule of law that the devolution of real property is governed by the laws of the State in which it is situated without regard to the domicile of the owner (Matter of Majot, 199 N.Y. 29; Matter of del Drago, 287 N.Y. 61; Daniell v. Hopkins, 257 N.Y. 112; Bishop v. Bishop, 257 N.Y. 40; Lowe v. Plainfield Trust Co., 216 App. Div. 72; Matter of Wupperman, 164 Misc. 900; Matter of Brecke, 192 Misc. 920; Decedent Estate Law, § 47). The sole sovereignty which possesses direct authority over a decedent's real estate is that in which the particular property is located (Warburton v. White, 176 U. S. 484, 496; Tyler v. United States, 281 U. S. 497, 501; Matter of Sabin, 155 Misc. 507).

A careful search of the law does not disclose a similar case in New York State involving real property. There are cases dealing with estates of nonresidents having personal property in New York. Surrogate FOLEY held in Matter of Slade (154 Misc. 275) that a widow could not assert a right of election with respect to New York personalty as rights in personal property are governed by the law of the domicile of the decedent. In Matter of Smith (182 Misc. 711) it was held that a nonresident surviving spouse could elect against the will of a nonresident with respect to personal property when the will expressly provided that the New York law should control. Surrogate FEELEY in referring to the Slade case (supra) stated (p. 717) "the report does show that as to a small parcel of realty here the claim...