In re the Estate of Warren

Christ, J. We are here concerned with the provisions of subdivision 9 of section 18 of the Decedent Estate Law. This section affords to a surviving spouse a right to elect to take his or her share of the estate of the deceased spouse as in intestacy, against the deceased’s will, subject to certain limitations, conditions and exceptions set forth in the section. Said subdivision 9 provides that the surviving spouse, “ during the lifetime of the other, may waive or release the right of election, ’ ’ but that a ‘ ‘ waiver or release to be effective under this subdivision shall be subscribed by the maker thereof and either acknowledged or proved in the manner required for the recording of a conveyance of real property.” During the lifetime of the testator, and on November 3, 1950, the testator and his wife entered into a separation agreement which contained a waiver and release of each party’s right of election against the estate of the other. Despite such waiver release, after the testator’s death his widow interposed a notice of election to take against his will, on the theory that the waiver release was not effective because it had not been “ either acknowledged or proved in the manner required for the recording of a conveyance of real property, ’ ’ as required by the statute (Decedent Estate Law, § 18, subd. 9). At the trial of the issue of the validity of the notice of election, the Surrogate directed the widow, over objection, to state [507] whether she had signed the agreement. Under this direction, she admitted she had signed the document, but added: “ I refuse to acknowledge it.” Although the widow made this admission, the Surrogate refused to comply with the request of the executor’s attorney that he attach a certificate of acknowledgment to the document. The Surrogate ruled that it had not been acknowledged during the lifetime of the testator and, hence: (1) that it was ineffective as a waiver and release; (2) that the notice of election was valid; and (3) that the widow is entitled to share in the decedent’s estate as in intestacy. The executor and temporary administrator, claiming that the Surrogate erred, relies on two cases (Matter of Maul, 176 Misc. 170, affd. 262 App. Div. 941, affd. 287 N. Y. 694; Matter of Sommers, 200 Misc. 1013) to sustain the contrary view. This is a difficult case, for the widow has received the benefits of the agreement and it would be most equitable to give effect to the waiver. It is not novel in the law, however, to find a harsh result where statute or public interest requires strict and full compliance with certain formalities before rights may be predicated. By pertinent statutes, some agreements require a writing, wills require witnesses for enforeibility, and contracts fully documented and freely made are set aside for usury. In many instances injustice may result from adherence to the statutes; but the applicable statutory requirements of formality were founded on a sound public purpose, and the harshness which sometimes ensues generates increased respect for such statutory requirements and the public purpose which they implement. The statute here does not use the device of the acknowledgment as merely an easy way of proof, as in the case of a deed or a mortgage. Instruments of that kind are good as against the parties thereto and are enforcible against all who know of them, whether acknowledged or not. But in the case of the waiver of the right of election, it is invalid and of no effect against anyone without the acknowledgment (Matter of McGlone, 284 N. Y. 527, affd. sub nom. Irving Trust Co. v. Day, 314 U. S. 556; Matter of Colaci, 288 N. Y. 158, 163). Here, at the time of the filing of the notice of election by the widow, there was no valid waiver because there was no acknowledgment, and hence the notice of election was good. It is not within the pattern of the formality required, in such an important act as the waiver of all one’s rights in the spouse’s estate, to permit the procedure sought to be invoked by the petitioner. The instrument here was neither acknowledged nor subscribed by any witness. [508] Matter of Howland (284 App. Div. 306) is practically on all fours with the case at bar. There the court declared, upon almost identical facts, that the unacknowledged waiver was invalid. In Kissling v. Hearn (264 App. Div. 900, affd. 290 N. Y. 563), a separation agreement containing a waiver of the right of election was unacknowledged. The court refused to compel acknowledgment in a suit for specific performance, although the agreement contained a provision in which the parties agreed to execute any documents necessary for its effectuation. Matter of Maul (supra) is distinguishable from the instant case. There the instrument was subscribed by two witnesses at the time of its execution, and it was one of the subscribing witnesses, not the surviving spouse, whom the Surrogate required to furnish the acknowledgment. There is also authority for the proposition that, when an acknowledgment is a prerequisite to the validity of an instrument, such acknowledgment by a party to the instrument must be a voluntary act and not one that is done under compulsion ; and that the function of the officiating person in taking the acknowledgment of a party to an instrument and certifying thereto is ministerial and not judicial, and therefore is not coupled or implemented with the power to compel such acknowledgment (Horbach v. Tyrrell, 48 Neb. 514; 1 Am. Jur., Acknowledgments, § 7, p. 318). Moreover, it is our opinion that the question of whether a surviving spouse has a right to elect to take against the deceased spouse’s will should be tested as of the time of the deceased’s death. As the court said in Matter of Matthews (255 App. Div. 80, 82, affd. 279 N. Y. 732), with respect to a spouse’s right of election, her “property rights vested as of the date of the decedent’s death”; and in Irving Trust Co. v. Day (314 U. S. 556, 562, supra), “ Expectations or hopes of succession, whether testate or intestate, to the property of a living person, do not vest until the death of that person.” (See, also, Matter of Schurer, 157 Misc. 573, 574, affd. 248 App. Div. 697; Matter of Goldsmith, 175 Misc. 757, 759.) A ruling contrary to that herein made would give rise to the anomaly that success in enforcing an unacknowledged waiver of the right of election would depend upon fortuity. Should the surviving spouse die after exercising the right of election, but before trial or a possible examination before trial, the opportunity to ask the court to exact an acknowledgment from that party would become lost. We have also considered the widow’s contention that the waiver provision in the agreement, by its own terms, was sub [509] ject to the condition of performance of the agreement by the testator, and that the latter breached the covenant in the agreement that neither of the parties would molest the other. We would not affirm the decree on the basis of this contention. The decree should be affirmed, without costs."