Nowakowski's Estate, In re

• Decision Date: 12 April 1957
• Parties: , 142 N.E.2d 198 In the Matter of the ESTATE of Alexandra NOWAKOWSKI, Deceased. Felix Nowakowski, Appellant; Louis Szczukowski et al., as Executors of Alexandra Nowakowski, Deceased, Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 19

162 N.Y.S.2d 19

2 N.Y.2d 618, 142 N.E.2d 198

In the Matter of the ESTATE of Alexandra NOWAKOWSKI, Deceased Felix Nowakowski, Appellant; Louis Szczukowski et al., as Executors of Alexandra Nowakowski, Deceased, Respondents.

Court of Appeals of New York.

April 12, 1957.

Edward D. Siemer, Buffalo, for appellant.

John J. Nasca, Buffalo, for respondents.

BURKE, Judge.

A proceeding was brought by the executors of the last will and testament of the decedent seeking a determination as to the validity of a waiver and release of the appellant's right of election to take against his deceased wife's will.

The Surrogate directed the clerk of the court to take and report the testimony. The record reveals that the clerk during the taking of the testimony ruled on more than 60 objections and at times personally interrogated the witnesses. An extended analysis of the testimony would serve no useful purpose, as we have allowed this appeal to consider solely the legal questions raised by appellant.

In the Surrogate's Court, appellant claimed that he had shown that the execution of the waiver was secured by the fraud and misrepresentation of the decedent and that thereafter respondent executors who had the burden of going forward with the proof failed to do so.

The Surrogate upon the testimony reported to him decided that the execution of the waiver had not been induced by any actual or constructive fraud practiced by the decedent. Having thus determined the waiver and release to be valid, the Surrogate for reasons not pertinent to the issue before him formulated an unprecedented rule in holding that the legal consequences of the signing of an instrument cannot be avoided where the relationship of husband and wife exists by a plea that the party did not know the contents of the paper unless the relationship is one of an 'average husband and wife'.

The written decision and decree adjudging the waiver of right of election by the appellant to be valid and a bar to appellant's assertion of the right of election were made more than a year after the taking of the testimony had been completed. The Appellate Division unanimously affirmed.

It is now claimed by the appellant that the Surrogate did not have statutory authority to direct the clerk to take and report testimony in the proceeding (Surrogate's Ct. Act § 32, subd. 10) and, if that procedure is found to be authorized by the statute, the statute is unconstitutional as an unlawful delegation of judicial power (N.Y.Const. art. VI, § 13); and that the Surrogate improperly held that the appellant had the burden of proof and refused to apply the rule of constructive fraud; and finally that the alleged fraud and misrepresentation of the decedent attending the execution of the waiver had been clearly established.

The question of improper delegation of judicial authority was not raised by the appellant until the problem was posed in the opinion of the Appellate Division after the argument of the appeal and prior to the reargument of the appeal in that court.

Considering the claims in the reverse order in which they have been stated, we deal first with the appellant's contention that the evidence in the record establishes the misrepresentation and deceit of the decedent.

The question of fraud and misrepresentation allegedly perpetrated by the decedent was one of fact. The finding of fact of the trial court has been unanimously affirmed by the Appellate Division. The finding of fact in this case is supported not only by the presence of evidence to support the finding of fact, i.e., the waiver itself, admittedly executed by the appellant, but likewise by the absence of worthy evidence of overreaching. See Matter of Phillips' Estate, 293 N.Y. 483, 491, 58 N.E.2d 504, 507. The sole testimony which relates to the alleged deceit of the decedent was adduced by the attorney for the appellant and permitted by the clerk without specific objection by the attorney for the respondent. Earlier on the direct examination of the appellant, the attorney for the respondents objected to similar questions on the ground that the appellant witness should not be allowed to testify to conversations with the decedent. These objections were sustained (Civ.Prac.Act, § 347).

Although the appellant has testified without objection to an alleged misrepresentation made to him by the decedent at the time of the execution of the waiver, we cannot say the Surrogate was in error in attaching little weight to the testimony of the appellant, an interested witness, thus finding the evidence of deceit insufficient as a matter of fact. Apart from this testimony, there is nothing in the record to impart verisimilitude to the contention of the appellant that he was defrauded. Appellant's argument at best amounts to a charge that the finding is against the weight of the evidence. That issue is one of fact and the trier of the fact is free to disbelieve uncontroverted testimony. New York Bankers v. Duncan, 257 N.Y. 160, 177 N.E. 407.

The...