Simmons v. Stewart (In re Estate of Lewis)

• Decision Date: 03 January 2014
• Parties: In the Matter of the ESTATE OF Robyn R. LEWIS, Deceased. James Robert Simmons, Petitioner–Respondent; v. Meredith M. Stewart, Ronald L. Lewis, Ronald L. Lewis, II, and Jonathan K. Lewis, Objectants–Appellants. (Appeal No. 1.).
• Court: New York Supreme Court — Appellate Division

114 A.D.3d 203

978 N.Y.S.2d 527

2014 N.Y. Slip Op. 00009

In the Matter of the ESTATE OF Robyn R. LEWIS, Deceased.James Robert Simmons, Petitioner–Respondent;

v.Meredith M. Stewart, Ronald L. Lewis, Ronald L. Lewis, II, and Jonathan K. Lewis, Objectants–Appellants. (Appeal No. 1.).

Supreme Court, Appellate Division, Fourth Department, New York.

Jan. 3, 2014.

Wittenburg Law Firm, LLC, Syracuse, D.J. & J.A. Cirando, Esqs. (Elizabeth Dev. Moeller of Counsel), for Objectants–Appellants.

Menter, Rudin & Trivelpiece, P.C., Syracuse (Julian B. Modesti of Counsel), for Petitioner–Respondent.

PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, and VALENTINO, JJ.

Opinion by SCUDDER, P.J.:

Robyn R. Lewis (decedent) was married to James A. Simmons (ex-husband), and they divorced in 2007. The parties resided in Texas during the course of the marriage, but they purchased property in Clayton, New York. Pursuant to the divorce decree entered in the State of Texas, decedent was awarded, inter alia, the real property located in Clayton. Decedent relocated permanently to that residence, and she lived there until her death in March 2010. Following decedent's death, her parents applied for letters of administration, and amended letters of administration were issued in May 2010. Decedent's parents thereafter renounced their interest in the Clayton property so that it would pass to decedent's brother and half-brother.

In December 2010, petitioner, who is the father of the ex-husband, filed a petition to probate a will of decedent dated July 15, 1996 and executed in the State of Texas (1996 Will). Pursuant to the 1996 Will, decedent appointed the ex-husband, who at that time was still married to her, as executor of the will and beneficiary of all of her property. Also pursuant to the 1996 Will, in the event that the ex-husband predeceased decedent, petitioner was named as alternate executor and alternate beneficiary. In his petition to probate the 1996 Will, petitioner alleged that the testamentary disposition to the ex-husband, as well as his appointment as executor, were revoked by virtue of the divorce ( see generallyEPTL 5–1.4[a][1], [3] ). Petitioner further alleged that he was the sole beneficiary of the 1996 Will, and asked Surrogate'sCourt to issue letters testamentary to him. At the time petitioner filed the petition to probate the 1996 Will, he filed an additional petition seeking, inter alia, revocation of the amended letters of administration issued to decedent's parents.

Decedent's parents, brother and half-brother (collectively, objectants) filed objections to probate. They contended that, inasmuch as decedent was a domiciliary of Texas at the time the 1996 Will was executed as well as at the time of her divorce, the nomination of petitioner as the alternate executor and alternate beneficiary failed under the Texas Probate Code. Pursuant to section 69(b) of that Code, “[i]f, after making a will, the testator's marriage is dissolved ... by divorce ..., all provisions in the will, including all fiduciary appointments, shall be read as if the former spouse and each relative of the former spouse who is not a relative of the testator failed to survive the testator, unless the will expressly provides otherwise” (emphasis added). Objectants further contended that, because the divorce decree required the ex-husband to return any “paperwork associated with any items of the decree,” his failure to return the 1996 Will to decedent wrongfully and fraudulently deprived decedent of the opportunity to access and evaluate the 1996 Will. As a result, objectants contended that petitioner was “estopped from claiming any benefit or nomination from the late offering” of the 1996 Will.

In supplemental objections, objectants contended that the 1996 Will was “revoked by the revocatory language and content of a Second and Lost Will” executed by decedent (Lost Will). Following a hearing, the Surrogate issued the decree in appeal No. 1, which dismissed all objections to the petition for probate and admitted the 1996 Will to probate. The Surrogate further issued the decree in appeal No. 2, which revoked the amended letters of administration to decedent's parents and issued letters testamentary to petitioner. We conclude that the decree in each appeal should be affirmed.

II

We note as a preliminary matter that our dissenting colleague would reverse primarily based on her conclusion that, because petitioner failed to account for all of the alleged copies of the 1996 Will, he failed to rebut the presumption that the 1996 Will was revoked by an act of destruction performed by decedent ( seeEPTL 3–4.1[a][2][A] ). Objectants have never contended, however, that the 1996 Will was revoked by destruction. Aside from challenges to the testamentary dispositions in the 1996 Will, the only other contention raised by objectants is that the 1996 Will was revoked by the purported execution of the Lost Will ( see generallyEPTL 3–4.1[a][1][A], [B] ).

It is well settled that “[a]n issue may not be raised for the first time on appeal ... where[, as here,] it ‘could have been obviated or cured by factual showings or legal countersteps' in the trial court” (Oram v. Capone, 206 A.D.2d 839, 840, 615 N.Y.S.2d 799; see Matter of Jared, 225 A.D.2d 1049, 1049, 639 N.Y.S.2d 773; see generally Misicki v. Caradonna, 12 N.Y.3d 511, 519, 882 N.Y.S.2d 375, 909 N.E.2d 1213; Bingham v. New York City Tr. Auth., 99 N.Y.2d 355, 359, 756 N.Y.S.2d 129, 786 N.E.2d 28). Moreover, appellate courts cannot and will not review an issue that has never been raised by the parties themselves. An exception to that rule is where a trial court or the Appellate Division determines, sua sponte, that it lacks subject matter jurisdiction ( see Matter of Fry v. Village of Tarrytown, 89 N.Y.2d 714, 718, 658 N.Y.S.2d 205, 680 N.E.2d 578). In this case, the dissent would decide this appeal on an issue objectants “never so much as hinted much less claimed before” the Surrogate or this Court (Misicki, 12 N.Y.3d at 519, 882 N.Y.S.2d 375, 909 N.E.2d 1213 [emphasis omitted] ).

“For us now to decide this appeal on a distinct ground that we winkled out wholly on our own would pose an obvious problem of fair play. We are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made. In sum, [petitioner] deserves an opportunity to refute the proposition on which the dissent would decide this appeal against him” ( id.).

As the Court of Appeals recognized in Misicki, “[w]hile appellate judges surely do not sit as automatons ..., they are not freelance lawyers either. Our system depends in large part on adversary presentation; our role in that system is best accomplished when [we] determine[ ] legal issues ... that have first been considered by ... the trial ... court” ( id. [internal quotation marks omitted] ). “In our view, it would be fundamentally unfair to determine this issue sua sponte and conclude, as does our dissenting colleague, that [petitioner] failed to meet [his] initial burden” of rebutting the presumption that the 1996 Will was revoked by destruction (Woods v. Design Ctr., LLC, 42 A.D.3d 876, 878, 839 N.Y.S.2d 880; see e.g. Hann v. Black, 96 A.D.3d 1503, 1503–1504, 946 N.Y.S.2d 722; CB Richard Ellis, Buffalo, LLC v. D.R. Watson Holdings, LLC, 60 A.D.3d 1409, 1410, 875 N.Y.S.2d 380). Indeed, to decide this appeal on issues never raised by the objectants would “implicate due process concerns” (McHale v. Anthony, 41 A.D.3d 265, 267, 839 N.Y.S.2d 33).

The dissent attempts to avoid the rules of preservation by contending that, regardless of preservation, “it was petitioner's burden, as proponent of the 1996 Will, ‘to make the proofs essential to its admission to probate’ ” (quoting Matter of Schillinger, 231 App.Div. 679, 680, 248 N.Y.S. 610, affd.258 N.Y. 186, 179 N.E. 380). While we agree that petitioner had the initial burden of proof, we recognize that “[t]he preservation of an issue for appellate review is completely distinct from the question whether [a party] has sustained his [or her] burden of proof” (People v. Duncan, 177 A.D.2d 187, 192, 582 N.Y.S.2d 847, lv. denied79 N.Y.2d 1048, 584 N.Y.S.2d 1016, 596 N.E.2d 414). We are mindful that Duncan involves an appeal from a judgment of conviction in a criminal case, but we conclude that the above principle is applicable to all appeals heard by this Court.

III

We now address those contentions raised by objectants on appeal. Although our dissenting colleague questions whether the ex-husband or his parents had possession of the 1996 Will, objectants contend that petitioner and his wife were the custodians of the 1996 Will and that they failed in their duty as custodians. It is well settled that one who accepts custody of an original will is “bound to return the instrument to its maker upon demand and [,] ... after the death of the testator and upon notice of such death, ... [is] bound to produce the will so that it might be probated” (Scholen v. Guaranty Trust Co., 288 N.Y. 249, 253–254, 43 N.E.2d 28; see generallySCPA 2507[3] ). Here, as in Scholen, there is no evidence that petitioner or his wife “voluntarily assumed any greater obligation,” and objectants “allege[ ] no facts which would permit the inference that from the bailment a broader duty ar [o]se[ ]” (id. at 254, 43 N.E.2d 28).

Even assuming, arguendo, that the ex-husband also could have been considered a custodian of the will, we conclude that neither the ex-husband nor his parents were under any legal obligation to return the 1996 Will to decedent at any time before her death inasmuch as it is undisputed that she never made a demand for its return ( see id. at 253–254, 43 N.E.2d 28). Although decedent's divorce decree required the ex-husband to return financial paperwork and any paperwork “needed to effectuate [the] division [of property],” the 1996 Will was not a document...