In the Matter of the Estate of Robyn R. Lewis, Deceased. James Robert Simmons, Respondent; Meredith M. Stewart, et al., Appellants.BriefN.Y.March 25, 2015 Estimated time: To be argued by: 15 minutes John A. Cirando, Esq. Syracuse, New York APL-2014-00144 STATE OF NEW YORK COURT OF APPEALS _______________________ 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. _____________________________ Jefferson County Surrogate Court File No. 2010-095/A Appellate Division Docket Nos. CA-12-01605; CA-13-00497; CA-13-00498 _____________________________ THE OBJECTANTS/APPELLANTS’ REPLY BRIEF WITTENBURG LAW FIRM, LLC Attorneys for Objectants/Appellants D.J. & J.A. CIRANDO, ESQS. Of Counsel 101 South Salina Street, Suite 1010 Syracuse, New York 13202 (315) 474-1285 John A. Cirando, Esq. Bradley E. Keem, Esq. Elizabeth deV. Moeller, Esq. of Counsel i TABLE OF CONTENTS PRELIMINARY STATEMENT ................................................................................................. 1 RESPONSE TO PETITIONER/RESPONDENT’S STATEMENT OF FACTS ........................................................................................................... 2 POINT I ......................................................................................................................................... 4 PETITIONER FAILED TO PRODUCE ALL OF THE TEXAS WILLS. POINT II ........................................................................................................................................ 7 DECEDENT DID EVERYTHING WITHIN HER POWER TO REVOKE THE TEXAS WILL. POINT III .................................................................................................................................... 11 SURROGATE’S COURT AND THE APPELLATE DIVISION ERRED IN NOT EXERCISING THEIR EQUITY POWER. CONCLUSION ........................................................................................................................... 16 THE ORDERS OF THE APPELLATE DIVISION SHOULD BE REVERSED, THE OBJECTIONS SUSTAINED, THE LETTERS TESTAMENTARY REVOKED, AND THE AMENDED LETTERS OF ADMINISTRATION REINSTATED. ii TABLE OF AUTHORITIES Cases Bingham v. NYC Transit Authority, 99 N.Y.2d 355 [2003] .......................................................... 4 Crossman v. Crossma, 95 N.Y. 145, 150 [1884] .................................................................... 5, 6, 7 In re Andrews, 195 Misc. 421, 426 [Surrogate’s Ct. Broome County, 1949] ........................ 7, 8, 9 Lichtman v. Grossbard, 73 N.Y.2d 792, 795 [1988]) ..................................................................... 4 Litwack 13 Misc 3d at 1013.......................................................................................................... 10 Matter of Estate of Cullen, 174 Misc.2d 236 [Surrogate’s Ct. Cattaraugus County., 1997] ........ 15 Matter of Goldsticker, 192 N.Y. 35, 37 [1908] .......................................................................... 7, 9 Matter of Hughson, 97 Misc 23 427, 429 ..................................................................................... 10 Matter of Katz, 78 Misc.2d 790 [Surrogate’s Ct. Schoharie County, 1974] .................... 13, 14, 15 Matter of Kleefeld, 55 NY2d 253, 259, rearg denied 56 NY2d 683, 805 .................................... 10 Matter of Litwack, 13 Misc 3d 1011, 1013 .................................................................................. 10 Matter of Neill, 177 Misc 534, 536 ............................................................................................... 10 Matter of Snide, 52 N.Y.2d 193, 196 [1981] ................................................................................ 15 Mercury Bay Boating Club, Inc. v. San Diego Yacht Club , 76 N.Y.2d 256, 273 [1990] ........... 15 People v. Jones, ___N.Y.2d___ [12/16/14] .................................................................................. 14 Slater v. Gallman, 38 N.Y.2d 1, 5 [1975] ....................................................................................... 1 State of New York v. Barone, et al., 74 N.Y.2d 332, 336 [1986] ................................................. 15 Other Authorities Estates, Powers and Trusts Law §4-1.1[a][5] ................................................................................. 9 1 APL-2014-00144 STATE OF NEW YORK COURT OF APPEALS _______________________ 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. _____________________________ Jefferson County Surrogate Court File No. 2010-095/A Appellate Division Docket Nos. CA-12-01605; CA-13-00497; CA-13-00498 _____________________________ THE OBJECTANTS/APPELLANTS’ REPLY BRIEF PRELIMINARY STATEMENT This Brief is submitted in response to Respondent’s Brief which was received, by counsel, on November 13, 2014. The deadline for appellants to file their Reply Brief was extended, by agreement between counsel, to on or before December 23, 2014. It is respectfully submitted that respondent’s voluminous 97 page Brief is an attempt, as this Court stated in Slater v. Gallman (38 N.Y.2d 1, 5 [1975]), to 2 “substitute volume for logic in an apparent attempt to overwhelm the courts, as though quantity, and not quality, was the virtue to be extolled”. Therefore, an attempt has been made in the instant Reply Brief to limit the issues to only those matters which require clarification for the Court to determine the relevant issues. RESPONSE TO PETITIONER/RESPONDENT’S STATEMENT OF FACTS Petitioner sets forth, as fact, that when decedent and her ex-husband, James A. Simmons, had legal documents, including the Texas Will, prepared, there was only one original and four copies made of that original (see The Respondent’s Brief, pp. 8-9). However, it should be noted that the true nature of these documents is disputed. Although, as petitioner notes (see The Respondent’s Brief, p.9), in one part of his testimony decedent’s ex-husband stated “yes” when asked if there was only one original of the document, other statements he made muddied this decisive statement (386-388). Specifically, it is unclear why, if the additional sets of documents were merely photocopies, bearing no legal status, decedent’s ex- husband would have found it important to store a set in their New York house, their Texas house and a safety deposit box (386). Furthermore, in discussing this plan to keep one set of legal documents at each location, decedent’s ex-husband indicated that such determination was made “before we sat down that day and--- and signed all those signatures”, suggesting that the copies he referred to were 3 duplicate originals (286). Moreover, it is illogical that a mere copy, would be placed in a safety deposit box and the only original given to decedent’s then mother-in-law, to be stored in a dresser drawer (311, 386). The lack of clarity on this important issue was noted by the Dissenting Justice: “As the Surrogate noted in his decision, it is not clear from the record whether decedent executed four originals of the 1996 will or one original and three copies” (439). In a footnote in his Brief, petitioner claims that Ben Olshfski (Objectants’ Witness No.3) could not have testified about looking for the Lost Will that Marilew Barnes (Objectants’ Witness No.1) saw decedent receive in the mail because the Lost Will “was not first discovered and disclosed until on or about August 26, 2011” (see The Respondent’s Brief, p. 20, fn. 1). The August 26, 2011 date to which respondent refers (see The Respondent’s Brief, p.20, fn. 1), is the date of the First Supplemental Objection to Probate filed by objectants (154-157). However, Barnes indicated that she saw the Lost Will in 2007 (233-234). Olshfski lived with decedent starting at the beginning of 2008 (263). Therefore, contrary to petitioner’s misguided assertion (see The Respondent’s Brief, p. 20, fn. 1), when Olshfski testified about looking for a Will after decedent’s death, he could have been referring to the Lost Will (263, 269-270). 4 POINT I PETITIONER FAILED TO PRODUCE ALL OF THE TEXAS WILLS. Petitioner relies on this Court’s decision in Bingham v. NYC Transit Authority (99 N.Y.2d 355 [2003]) for his position that whether all copies of the Texas Will were produced is an issue being raised for the first time in this Court and is, therefore, not reviewable (see The Respondent’s Brief, pp.42-43). Initially, it should be noted that revocation of the Texas Will is not an issue being raised for the first time on appeal, but was at issue throughout this matter (15-17, see The Appellants’ Appellate Division Brief, pp.42-45). Surrogate Peter A. Schwerzmann, in his interim May 18, 2012 Decision and Decree, acknowledged the issue of whether the Texas Will had multiple copies by indicating the testimony on the issue wasn’t clear and also discussed whether the Texas Will had been revoked (15-17). Furthermore, it should be noted that this Court’s decision in Bingham (99 N.Y.2d at 359), clarifies that the policy reason behind disfavoring the determination of issues raised for the first time on appeal is based on “the distinction between the Legislature, which may spontaneously change the law whenever it perceives a public need, and the courts which can only announce the law when necessary to resolve a particular dispute between identified parties” (see also Lichtman v. Grossbard, 73 N.Y.2d 792, 795 [1988]). In the case at bar, the 5 issue of whether petitioner sustained his burden of demonstrating that the Texas Will, which he sought to admit for probate, had not been revoked through the destruction of other duplicates, is a particular dispute between the parties to the action which this Court may properly review (Bingham,99 N.Y.2d at 359). Petitioner attempts to discredit objectants’ interpretation of this Court’s decision in Crossman v. Crossman (95 N.Y. 145, 150 [1884]) (see The Appellant’s Brief, pp.34, 39), by stating that it is “duplicate originals” rather than “duplicates” which may each be found to reflect a testator’s intent (see The Respondent’s Brief, pp. 46-47). The plain language of the decision in Crossman (95 N.Y. at 150) is that [w]here the duplicates are exactly alike, each expresses and contains the will of the testator; and either may be proved and admitted to probate without the other. . .[t]he proponents of either duplicate can undoubtedly be required to produce the other, so that both may be before the court for inspection, that it may be seen whether they are precisely alike, or whether there has been any revocation. Petitioner should not be permitted to change the meaning of such language by insisting that what was intended was duplicate originals rather than duplicates (see The Respondent’s Brief, pp. 46-47). The evidence before Surrogate Schwerzmann, in the case at bar, specifically decedent’s ex-husband’s discussion of the plan to leave the multiple copies of the Texas Will in various locations, 6 makes it logical that the multiple copies were in the nature of the duplicate originals referred to in Crossman (95 N.Y. at 150). It should be noted that it is petitioner, in his analysis of Crossman (95 N.Y. at 150), who is attempting to take the instant matter beyond the determination of the instant dispute between the parties herein, by hypothesizing that modern technology could allow for infinite reproduction of a Last Will and Testament (see The Respondent’s Brief, pp. 48-49). However, in the instant matter, there is no allegation that there are an infinite number of reproductions of the Texas Will but rather that decedent and the ex-husband left their lawyers office with a certain specified number of documents, with the only outstanding question being whether those documents all carried the same legal status (386-388). As noted above, petitioner asserts as fact that there was only one original of the Texas Will and then multiple copies, however such fact is not clear from the Record1 (386-388). Petitioner acknowledges that Surrogate Schwerzmann found that the testimony of the witnesses did not make clear whether there were four original documents or one original and four copies (8, 15), but dismisses such finding by merely saying it was “difficult to explain” (see The Respondent’s Brief, p. 48). However, such lack of clarity in the evidence demonstrates that petitioner failed to sustain his burden of demonstrating that the Texas Will had not been 1 It bears repeating that if petitioner’s position is correct, a copy was put in a safe deposit box and the original in a dresser drawer (311, 386). 7 revoked through destruction or other means and, therefore, Surrogate Court’s Order, and the Appellate Division affirmance of that Order must be reversed (see Crossman, 95 N.Y. at 150). POINT II DECEDENT DID EVERYTHING WITHIN HER POWER TO REVOKE THE TEXAS WILL. Petitioner sets forth Surrogate’s Court Procedure Act §1407 as the standard which must be met in order for objectants to prevail in the instant matter (see The Respondent’s Brief, p. 57, 66-67). Surrogate’s Court Procedure Act §1407 indicates that “[a] lost or destroyed will may be admitted to probate only if” certain elements regarding the execution and content of the will are proven. However, in the case at bar, objectants do not seek to admit the Lost Will to probate, but rely on the detailed uncontroverted testimony of the “highly credible” Marilew Barnes (Objectants’ Witness No. 1) as evidence of a revocatory instrument, the Lost Will, revoking the Texas Will (206-213). As this Court noted in Matter of Goldsticker (192 N.Y. 35, 37 [1908]): It is a doubtless true that under certain circumstances an instrument may be effective as a revocation of previous wills, and yet fail as a will itself... Petitioner relies on In re Andrews (195 Misc. 421, 426 [Surrogate’s Ct. Broome County, 1949]), which was also relied upon by the majority at the Fourth 8 Department, for his position that it is important, as a matter of public policy, that a testator’s first Last Will and Testament not be dismissed too quickly in favor of a questionable second Last Will and Testament because a testator should be able to be secure that their testamentary intent will be carried out (see The Respondent’s Brief, pp. 60-62). However, it should be noted that in In re Andrews (195 Misc. at 426), the Surrogate relied on evidence that demonstrated the intent of the decedent therein to have her first Last Will and Testament exist as the sole instrument of her testamentary intent: The decedent left the custody of the [first Last Will and Testament] with the attorney who drew it, and this was left undisturbed until after her death. Her diary or personal notebook made several references to this will -- never to any other. She frequently discussed this will, but never any other, with her intimates. She wrote a note, found folded so the writing could not be overlooked, at the top of contents of her personal strongbox in which she kept her valuable papers, ‘You will find my last will & testament at Simmond Law Office’. In contrast, in the case at bar, there is no indication that decedent intended to have the testamentary plan of the Texas Will, endure, resulting in her ex-father-in-law receiving all of her property, but instead there was “highly credible” testimony from Barnes that her testamentary intent, as embodied in the Lost Will, was for the Clayton property to go to her brothers and for a small sum of money to go to her 9 niece and nephew (209-210, 222-223). The Texas Will, in contrast to the Will in In re Andrews (195 Misc. at 426), was a document which, according to petitioner, was so little thought of that it was not even placed in a safe deposit box but instead in a dresser drawer (311, 386). Therefore, unlike In re Andrews (195 Misc. at 426), where the Surrogate took care to ensure that the testamentary plan relied upon by the testator therein was enacted, in the case at bar, where the Texas Will clearly went against decedent’s intent, there is a need to guard against that result (see Matter of Goldsticker, 192 N.Y. at 37). Petitioner claims that decedent didn’t know the “natural objects of her bounty” because she had a difficult relationship with her mother and did not have children and did not know the extent of her estate because she “left an unidentified sum of money to her niece and nephew” despite her financial troubles (see The Respondent’s Brief, pp. 63-64). However, pursuant to Estates, Powers and Trusts Law §4-1.1[a][5], where a decedent who dies intestate has neither spouse nor issue, siblings are the prescribed receiver of an estate and, in the case at bar, decedent, in her Lost Will, left the main asset of her estate, the Clayton property, to her brothers (210). Furthermore, the amount of money left to her niece and nephew was, as Barnes noted, only five hundred or two hundred dollars and not an unreasonable amount (210). 10 As to the effect of decedent’s alcohol use, which petitioner claims prevented decedent from having the testamentary capacity to make the Lost Will (see The Respondent’s Brief, p.65), it should be noted that while Barnes reported that she assisted decedent with many tasks, it was more in the nature of organizing and remembering information and that decedent was able to act on her own to check items, such as having the name on her driver’s license changed, off of her to do list (201). As the dissenting Justice aptly noted (443-444): Here, in light of the uncontradicted testimony of decedent’s intent to revoke the 1996 Will and her execution of a document effectuating that intent, I would hold that the Lost Will operated to revoke the 1996 Will. I would therefore deny probate of the 1996 Will and permit the estate to pass through intestacy (see generally Matter of Hughson, 97 Misc 23 427, 429 [“(I)t is the court’s obligation to carry out, within the realm of possibility, the intent of the deceased under the circumstanes”]; Matter of Neill, 177 Misc 534, 536 [“In this type of case as in all other questions of construction the intention of the testator is paramount and supersedes all presumptions and general rules”]). As the majority notes, the overriding purpose of the statutory due execution requirements is “to prevent the probate of fraudulent instruments” (Matter of Litwack, 13 Misc 3d 1011, 1013; see Matter of Kleefeld, 55 NY2d 253, 259, rearg denied 56 NY2d 683, 805). Here, objectants do not seek to probate the Lost Will and there is no suggestion of fraud on their part or on the part of the neighbor, the only disinterested witness to testify at the hearing. I thus conclude that giving effect to the revocatory language of the Lost Will would not frustrate the “fraud-preventing purposes of the statutes (Litwack 13 Misc 3d at 1013). 11 POINT III SURROGATE’S COURT AND THE APPELLATE DIVISION ERRED IN NOT EXERCISING THEIR EQUITY POWER. The petitioner claims that any suggestion that the assets of decedent’s estate will go to his son, who is decedent’s ex-husband, is nothing but “presumption” (see The Respondent’s Brief, pp. 72-73). However, petitioner quite explicitly stated in his testimony that “I’m not the petitioner, I’m---I’m just along for the ride” (398). There can be no clearer indication that petitioner does not feel vested in pursuing property rights under the Texas Will, but instead is being encouraged by others, quite likely his son, decedent’s ex-husband, to pursue such rights, despite the fact that he has no interest in doing so (398). Petitioner notes that “at no time during the marriage did decedent seek to revise her testamentary plan to include a distribution of her interest in the Clayton property to anyone other than her former husband or, in the event he predeceased her to the petitioner” and further surmises that if decedent and her ex-husband had remained married, the Clayton property would have passed out of decedent’s family (see The Respondent’s Brief, p. 87). Such argument, however, is clearly a “red herring” that should have no bearing on the determination of the instant matter. The fact of the matter is that in April 2007 the parties did divorce and, in 12 late summer 2007, decedent received at her home a copy of the Lost Will in which she attempted to ensure that the Clayton property passed to her brothers, rather than to the family of her ex-husband (199-200, 206-213). Similarly unavailing as to the equities in the instant matter is petitioner’s claim that after learning about decedent’s death his wife, Julia Simmons (Petitioner’s Witness No.1) cried and was very upset (see The Respondent’s Brief, p. 91). Such claims of grief are brought into question by Simmons’ admission that she took no action to reach out to express her grief to decedent’s family “because they hadn’t called us and let us know she’d passed away” and instead, within a few days, took the Texas Will out of her dresser drawer and obtained the services of an attorney (311, 348-350). Petitioner suggests that decedent’s ex-husband, by paying the mortgage on the Clayton property, even after he was no longer required to do so by the Divorce Decree, made a contribution to the property that entitles him to ownership of that property (see The Petitioner’s Brief, p. 92). However, it should be noted that the Divorce Decree governing the decedent and the ex-husband required the ex- husband to pay the mortgage on the Clayton property until August 26, 2012 (76). Decedent died in March 2010 and on June 4, 2012, petitioner, the ex-husband’s father, had obtained the Surrogate Court Order being appealed herein permitting probate of the Texas Will, which gave him property rights in the Clayton property 13 (5-10, 12-17, 28). Therefore, although petitioner claims that “had [decedent’s ex- husband] refused [to pay the mortgage], there would be no assets in decedent’s estate” (see The Respondent’s Brief, p. 92), decedent’s ex-husband should not be viewed as a savior of decedent’s estate but rather as someone who was either complying with his legal obligations or protecting his family’s property rights (5- 10, 28, 76). The petitioner relies on Matter of Katz (78 Misc.2d 790 [Surrogate’s Ct. Schoharie County, 1974]), which was also relied on by the majority at the Fourth Department, for his position that without proof of due execution of the Lost Will, the Lost Will has no effect on the revocation of the Texas Will (see The Respondent’s Brief, p. 66). However, it is significant that in Matter of Katz (78 Misc.2d at 791-792), although the Surrogate therein concluded that a Destroyed Will could not serve to revoke an Earlier Will, it found it could exercise its equitable power to prevent the wife of the decedent, who enacted the destruction of the Destroyed Will to prevent decedent’s son from inheriting, from profiting from this action and ordered that the wife was required to hold the property passing under to her under the Earlier Will as a constructive trustee for the benefit of decedent’s son. In the case at bar, Surrogate Schwerzmann, after determining that there had not been sufficient proof of due execution of the Lost Will, acknowledged that the 14 distribution pursuant to the Texas Will is “drastically different” from what an intestate distribution would be and that the “fact that the will as drafted ten years prior to the decedent’s divorce raises suspicion in [objectants’] eyes as to whether the will truly reflects what the decedent would have wanted when she passed” (17). Nonetheless, despite acknowledging such significant problems with the Texas Will and the distribution it would effectuate, Surrogate Schwerzmann, unlike the Surrogate in Matter of Katz (78 Misc.2d at 791-792), abused his discretion by failing to exercise his considerable equitable authority to right the wrong that a rote application of the law would bring about (5-10). Such a failure was then exacerbated by the Fourth Department (426-433). As this Court recently noted in People v. Jones (___N.Y.2d___ [12/16/14]): …whether there has been an abuse of discretion is a question of law, not of fact. It matters not that the discretion which we review necessarily was exercised in a factual setting. And that is so even though we must look at the facts in order to determine whether the discretion as indeed abused. . .” Petitioner claimed that in making his disposition, Surrogate Schwerzmann did not feel as though he was constrained by the law from using his equity power (see The Respondent’s Brief, pp. 77-79). However, after drawing his legal conclusions and then pointing out the ways in which the disposition in the Texas Will differed from an expected disposition, Surrogate Schwerzmann stated that he was “bound by the existing body of law in New York, both statutory and case law” 15 to deny the objections to the Texas Law (17). However, the purpose of equity jurisdiction is to permit a Surrogate or the Appellate Division, after taking in consideration all of the circumstances of a matter, to mold an outcome which serves the equities (State of New York v. Barone, et al., 74 N.Y.2d 332, 336 [1986]) (see The Appellants’ Brief, pp. 47-48). Surrogates in cases such as Matter of Katz (78 Misc.2d at 791-792) and Matter of Estate of Cullen (174 Misc.2d 236 [Surrogate’s Ct. Cattaraugus County., 1997]---wherein the Surrogate, fashioned an equitable remedy by appointing the mother of the third of decedent’s six ex-wives as substitute executrix, but addressed the possible inequity by also allowing decedent’s widow limited Letters of Administration to prosecute litigation arising out of the car accident in which decedent had been killed), acknowledged the law, as did Surrogate Schwerzmann, but then took the additional step of recognizing that, in accordance with such law, steps could be taken to fashion an equitable remedy that blunts the sharp edges of the law (see Mercury Bay Boating Club, Inc. v. San Diego Yacht Club , 76 N.Y.2d 256, 273 [1990]) . It should be noted that this Court fashioned such an equitable outcome in Matter of Snide (52 N.Y.2d 193, 196 [1981]). 16 CONCLUSION THE ORDERS OF THE APPELLATE DIVISION SHOULD BE REVERSED, THE OBJECTIONS SUSTAINED, THE LETTERS TESTAMENTARY REVOKED, AND THE AMENDED LETTERS OF ADMINISTRATION REINSTATED. Respectfully submitted, __________________________________ WITTENBURG LAW FIRM, LLC Attorney for Objectants/Appellants D.J. & J.A. CIRANDO, ESQS. Of Counsel 101 South Salina St.,Suite 1010 Syracuse, New York 13202 (315) 474-1285 John A. Cirando, Esq. Bradley E. Keem, Esq. Elizabeth deV. Moeller, Esq. Of Counsel Dated: December 22, 2014