Hyperlawhypertext legal database In re the Probate of the Will of Florance 27 N.Y. St. Rep. 312

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In re the Probate of the Will of Florance

27 N.Y. St. Rep. 312 Court N.Y. Gen. Term Decision date 1889-11-07 English

Delivered by Van Brunt, P. J.

Contents

Majority

p. 312
In the Matter of the Probate of the Will of Rosalie Florance, deceased.
(Supreme Court, General Term, First Department,
Filed November 7, 1889.)

Headnote

1. Husband and wife—Domicil.
Since the passage of the married women’s acts the rule that a woman-acquires the domicil of her husband and changes it with him, no longer prevails, but she may acquire a separate domicil of her own.
3. Same.
The deceased and her husband separated, agreeing to live apart and that she should support her children. She came from Pennsylvania to New York, where she remained with her children for twelve years, until shortly before her death, which occurred in Europe. Feld, that she had acquired a sufficient domicil to dispose of her property by will in accordance with the laws of this state and to authorize the probate of such, will here.
Appeal from an order of the surrogate of the county of ¡New York, denying a motion made by the husband of the deceased to vacate or set aside the probate of the will of deceased or-to modify the same.
George H. Yeaman, for app’lts; Charles E. Miller, for ex’rs resp’ts, Edward W. Sheldon, for U. S. Trust Co. as trustee under will ; Meyer Butzel, special guardian.

This application is a renewal of one made-in June, 1888, pursuant to leave duly given.

It appears from the papers before the learned surrogate that the petitioner and appellant resides in the city of Philadelphia, state of Pennsylvania, and that he was the husband of Rosalie Florance,. who died on October 12, 1887, in Europe. That in November,. 1887, the last will and testament of said Rosalie was filed for probate with the surrogate of New York, and at the same time a petition was presented, alleging that she had been previous to her death a resident of the county of New York. A citation was-duly issued to and served upon all persons entitled to notice, including the petitioner to attend the probate of the will. That the petitioner neglected to appear and the said will was admitted to probate and letters testamentary issued thereon.

The petitioner stated in his petition that he did not attend the-probate of the will because he did not suppose that any of his rights would be affected thereby, and that within a week or so-after said probate the petitioner learned that said will had been improperly probated, in that the deceased was not a resident of New York at the time of her death, and he was advised by counsel that steps should be taken to modify and correct said' probate. That thereupon in June 21, 1888, a petition was presented to the surrogate’s court upon which a citation was issued and such proceedings had, that in October, 1888, the motion was-denied, and that pursuant to leave granted the petition in question was presented in December, 1888.

It further appeared that the petitioner and said Rosalie were' married in the year 1860, and in the city of New York, where she--was born and had always resided up to the time of her marriage.

p. 313
to the petitioner. That the petitioner and his said wife then went to live in Philadelphia, and resided there until 1873, when they "broke up housekeeping and resided in various places. In the fall of 1875 the petitioner and his wife finally separated from one another, he making his home in Philadelphia and she, with three children, in New York, she taking care of and maintaining them. The said Rosalie, from her savings of some property left her, accumulated some sixty thousand dollars, which comprised her estate at her death. The petitioner claims that as no legal separation had taken place between them, although they had lived apart for twelve years, the residence of his wife was that of her husband, viz., Pennsylvania, and that by the laws of said state he was entitled to share in her estate, which would not be the case were she a resident of New York.

The whole claim of the plaintiff is based upon the old rule that a woman in marriage acquires the domicil of her husband and changes it with him. It is admitted that a wife may procure a separate domicil for purposes of divorce, but it seems to be claimed that such domicil cannot be procured for any other purpose.

The old rule in reference to a married woman’s domicil cannot certainly prevail in view of the rights which are recognized to be her’s by the statutes.

The property relations between husband and wife have been entirely changed since the rule in question has obtained, and the ■ reasons for the rule no longer exist. The wife is now a distinct legal entity having in the disposition of her property all the rights and even more than a husband has ever possessed, and the husband has no control whatever over her movements or her disposition of her property.

In the case at bar it appears that in 1875 the petitioner and his wife agreed to separate, she to take their children and maintain them. They did separate, he going to Philadelphia and she living in Hew York, which had been her home before marriage, and supporting their children from her own means. There is no pretense that the petitioner ever contributed a cent to the support of his wife or their children since 1875, or offered to do so, and the best that he can say in his petition is that he never refused to provide a home for bis said wife or her children in the city of Philadelphia. Probably he was never asked to do so, and consequently did not refuse, but he nowhere alleges that he offered to provide a home for his wife and children anywhere, and probably he did not.

They had agreed to live separated, and she had agreed to support herself and her children. She then, by and with his consent, acquired a domicil in Hew York, made that her home and that of her children, and certainly if she was enough of a resident to institute divorce proceedings, as is conceded, she is enough of a resident to leave her property to her children, and to be protected from the claim of a husband, with whom she had not lived for twelve years, and who has not duriner that time either contributed

p. 314
or offered to contribute to her support, or to that of their children, and who desires now under a legal fiction to take away from his •own children a a portion of their mother’s inheritance

The motion was decided correctly by the learned surrogate, and the order appealed Rom should be affirmed, with costs, to each of the parties appearing as respondents.

Daniels and Barrett, JJ., concur.