In re the Estate of Rechtschaffen

Esther Annie Rechtschaffen died intestate a resident of New York county in September, 1936, leaving as survivors her husband, this respondent, Louis Rechtschaffen, a nephew, this appellant, Nathan Zucker, and other collateral relatives. Upon petition by the nephew and cross-petition by the husband, the Surrogate issued letters of administration to the husband, this respondent.

The question is whether the husband, by refusing or neglecting to provide for his wife, or by abandoning her, has forfeited his interest in the estate and thus lost his right to appointment as administrator. If he has not so forfeited his right, and is entitled to share in the estate, he takes precedence over all others in appointment as administrator. (Surr. Ct. Act, § 118.) Section 87 of the Decedent Estate Law (Cons. Laws, ch. 13) provides: “No distributive share of the estate of a decedent shall be allowed under the provisions of this article * * * (c) * * * to a husband who has neglected or refused to provide for his wife, or has abandoned her.” The appellant in his petition alleges that respondent abandoned his wife twenty years prior to her death and has neglected and refused to provide for her and to contribute to her support. The burden is upon him to establish these allegations. The Surrogate held that the preponderance of the evidence on the issues of abandonment and failure to provide is in favor of the husband but, in reaching this conclusion, he struck from the record certain records of the Magistrate’s Court and Domestic Relations Court which we deem relevant. The decree adjudges that appellant has failed to prove that the respondent husband abandoned, neglected and failed to provide for decedent.

The Surrogate admitted in evidence and later struck out records in Magistrate’s Court and Domestic Relations Court adjudging respondent husband to be a disorderly person by reason of the fact that his wife was in danger of becoming a burden upon the public and ordering him to pay three dollars and fifty cents per week for her support from November 2, 1917, the date of the first order, the same sum from November 26, 1918, the date of the second order, and other records indicating delinquency in payments.

The proceedings in the Domestic Relations Court and ¡ the Magistrate’s Court which resulted in judgments | that defendant was a disorderly person necessarily | included the issues whether this respondent husband f had abandoned his wife without adequate support or ! left her in danger of becoming a burden upon the public ¡ or neglected to provide for her according to his means. 1 A disorderly person is defined as one who is guilty of ! these acts or omissions (Code Crim. Proc. § 899, ; subd. 1), and proof of the judgments of the Domestic ; Relations Court and the Magistrate’s Court that respondent was a disorderly person is prima fade evidence in ’ the present proceeding that he neglected to provide for his wife according to his means. (Schindler v. Royal Ins. Co., 258 N. Y. 310 , 314.) The husband’s obligation ' of support continues so long as the marriage relation is not dissolved or limited by a decree of divorce or separation. (People v. Schenkel, 258 N. Y. 224 , 226.) Therefore, in deciding the issue in this proceeding whether respondent neglected or refused to provide for his wife within the meaning of section 87 of the Decedent Estate Law, the effect of these quasi-criminal proceedings in the inferior courts should be considered in relation to all the other evidence in the case. They do not as matter of law establish abandonment or failure to provide,

The orders should be reversed and the matter remitted to the Surrogate’s Court to proceed in accordance with this opinion, with costs to abide the event payable out of the estate.

Lehman, Httbbs, Loughran, Finch and Rippey, JJ., concur; Crane, Ch. J., taking no part.

Ordered accordingly.