In the Matter of the Estate of Robyn R. Lewis, Deceased. James Robert Simmons, Respondent; Meredith M. Stewart, et al., Appellants.

Brief

N.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’ 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 STATEMENT OF FACTS ............................................................................................................. 3 THE HEARING ............................................................................................................................ 15 THE OBJECTANTS’ CASE....................................................................................................... 15 PETITIONER’S CASE ............................................................................................................... 27 REBUTTAL .................................................................................................................................... 31 POINT I ...................................................................................................................................... 33 PETITIONER FAILED TO PRODUCE ALL OF THE TEXAS WILLS. . . .as to preservation of the issue. ................................................................ 35 . . . as to whether petitioner failed to demonstrate that the Texas Will had not been destroyed. ....................................................................... 37 POINT II .................................................................................................................................... 40 DECEDENT DID EVERYTHING WITHIN HER POWER TO REVOKE THE TEXAS WILL. POINT III ................................................................................................................................. 47 SURROGATE’S COURT AND THE APPELLATE DIVISION ERRED IN NOT EXERCISING THEIR EQUITY POWER. CONCLUSION............................................................................................................................... 53 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 Alliance Property Management & Development Inc. v. Andrews Avenue Equities, Inc., 70 N.Y.2d 831, 832 [1987] ........................................................................................................ 48 Crossman v. Crossman, 95 N.Y. 145, 150 [1884] .................................................................... 34, 39 Fidelity & Guaranty Insurance Corporation v. Ballon, 280 A.D.373, 376-377 [1942] .................... 34 Gibbs v. Guild, 9 QB Div 59 [CA] ................................................................................................. 48 Hecht Co. v. Bowles, 321 U.S. 321, 329 ........................................................................................ 48 In re Bieley, 91 N.Y.2d 520, 525 [1998] ........................................................................................ 40 In re Estate of Cook, 147 Misc. 528, 535-536 [Surrogate’s Ct. Westchester Cnty., 1933] .............. 34 In re Estate of Gray, 143 A.D.2d 751 [2nd Dept., 1988] ............................................................ 34, 35 In re Estate of Philbrook, 185 A.D.2d 550 [3rd Dept., 1992] ..................................................... 34, 35 In re Fabbri’s Will, 2 N.Y.2d 236, 240 [1957] ............................................................................... 40 In re Kennedy’s Will, 167 N.Y. 163, 172-173 [1901] .................................................................... 43 In re Will of Fox, 9 N.Y.2d 400, 408 [1961] ............................................................................ 34, 35 Kaminsky v. Kahn, 23 AD2d 231, 237 .......................................................................................... 47 Majauskas v. Majauskas, 61 N.Y.2d 481, 493-494......................................................................... 48 Matter of Baby Boy C., 84 N.Y.2d 91, 100 [1994] ......................................................................... 48 Matter of Coffed, 59 A.D.2d 297, 300 [4th Dept., 1977] ................................................................. 51 Matter of Davis, 45 Misc. 554, 557 [Surrogate’s Ct. Saratoga Cnty., 1904], aff’d 182 N.Y. 468 [1905] ................................................................................................... 33, 40 Matter of Estate of Cullen, 174 Misc.2d 236 [Surrogate’s Ct. Cattaraugus Cnty., 1997] ................ 50 Matter of Estate of Ensign, 103 N.Y. 284, 287 [1886] ................................................................... 44 Matter of Estate of Robyn R. Lewis, Deceased, ___ N.Y.3d ___; 2014 NY Slip Op 74804 [2014] ................................................................................................. 2 Matter of Estate of Sharp, 68 A.D.3d 1182, 1184-1185 [3rd Dept., 2009] ....................................... 44 Matter of Goldsticker, 192 N.Y. 35, 37 [1908] ............................................................................... 41 Matter of Katz, 78 Misc.2d 790 [Surrogate’s Ct. Schoharie Cnt., 1974] ......................................... 43 Matter of Probate of the Will of Staiger, 243 N.Y. 468, 472 [1926] ......................................... 34, 39 Matter of Shinn, 7 Misc.2d 623, 624 [Surrogate’s Ct., Westchester Cnty., 1956] ........................... 41 Matter of Singer, 13 N.Y.3d 447, 450 [2009] ................................................................................. 40 Matter of the Estate of Kronen, 67 N.Y.2d 587 [1986] ................................................................... 46 Matter of the Estate of Robyn R. Lewis, Deceased, 113 A.D.3d 1081 [4th Dept., 2014] ............... 2 Matter of the Estate of Robyn R. Lewis, Deceased, 114 A.D.3d 203 [4th Dept., 2014] ................. 2 Matter of the Estate of Robyn R. Lewis, Deceased, 114 A.D.3d 231 [4th Dept., 2014] ................. 2 Mercury Bay Boating Club, Inc. v. San Diego Yacht Club, 76 N.Y.2d 256, 273 [1990] ................ 52 Patron v. Patron, 40 N.Y.2d 582, 585 [1976] ................................................................................. 52 People v. Erb, 59 A.D.3d 1020, 1020-1021 [4th Dept., 2009] ......................................................... 37 People v. Patterson, 39 N.Y.2d 288 [1976] .................................................................................... 37 Phillips v. West Rockway Land Col, 226 NY 507, 515 .................................................................. 47 Scholen v. Guarenty Trust Co., 288 N.Y. 249 [1942] ............................................................... 34, 38 State of New York v. Barone, et al., 74 N.Y.2d 332, 336 [1986] ........................................ 47, 50, 51 Telaro v. Telaro, 25 N.Y.2d 433, 437-439 [1969] .......................................................................... 36 iii Statutes CPLR 3017 (a) ............................................................................................................................... 47 EPTL §5-1.4[b][1] ......................................................................................................................... 44 EPTL 5-1.4 [a] ................................................................................................................................ 5 Texas Family Code § 6.001 ............................................................................................................ 4 Other Authorities 1 Pomeroy, Equity Jurisprudence §109 [5th ed] .............................................................................. 48 Cohen and Karger, Powers of the New York Court of Appeals, No. 1, at p. 624 ........................ 36 Constitutional Provisions NY Constitution, article VI. § 7 ..................................................................................................... 47 iv QUESTIONS PRESENTED 1. Whether petitioner failed to sustain his burden of demonstrating that the Texas Will had not been revoked? 2. Whether decedent demonstrated an intent to revoke the Texas Will with the Lost Will? 3. Whether Surrogate’s Court and the Appellate Division erred in not exercising their equity powers? 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’ BRIEF PRELIMINARY STATEMENT The instant appeal involves a proceeding originating in Jefferson County Surrogate Court (Peter A. Schwerzman, S.) and relates to: a Decree, entered May 18, 2012, admitting to probate a Texas Will; a Decree, entered May 22, 2012, revoking Amended Letters of Administration and issuing Letters Testamentary in accordance with the Texas Will; and an Amended Decision and 2 Decree, entered June 4, 2012, correcting typographical errors as to dates, in the May 18, 2012 Decree. Notice of Appeal was timely filed and served on June 15, 2012. By an Opinion and Order, entered January 3, 2014, the Appellate Division, Fourth Department affirmed, with one justice dissenting, the Decree admitting the Texas Will to probate (Matter of the Estate of Robyn R. Lewis, Deceased, 114 A.D.3d 203 [4th Dept., 2014]), and the Decree revoking the Amended Letters of Administration and issuing Letters Testamentary in accordance with the Texas Will (Matter of the Estate of Robyn R. Lewis, Deceased, 114 A.D.3d 231 [4th Dept., 2014]). The appeal from the Amended Decree was unanimously dismissed (Matter of the Estate of Robyn R. Lewis, Deceased, 113 A.D.3d 1081 [4th Dept., 2014]) By Order, entered June 12, 2014, based upon a Decision issued that same day, this Court granted objectants’ Motion for Leave to Appeal to the Court of Appeals (Matter of Estate of Robyn R. Lewis, Deceased, ___ N.Y.3d ___; 2014 NY Slip Op 74804 [2014]). 3 STATEMENT OF FACTS Decedent married James A. Simmons (ex-husband) (Rebuttal Witness No. 1) in Texas in 1991(24). In July 1996, decedent executed a Last Will and Testament (Texas Will)1, in which she left all her property to her ex-husband and, in the event that he predeceased her, to her ex-husband’s father, James Robert Simmons, the petitioner herein (41-43). When decedent executed the Texas Will2, she and the ex-husband owned a home together in Texas and had modest savings (372-373). Decedent and the ex- husband thereafter purchased property in Clayton, New York (New York property) from decedent’s mother and an uncle (94, 99-100). The New York property had been in decedent’s family for several generations (374). About 10 years later, decedent petitioned for divorce (74- 89, 187-189). While the divorce was pending, she was hospitalized twice for grand mal seizures relating to alcohol abuse (189-193). Doctors told decedent that, if she continued to drink, she would be dead within six months (194). In April 2007, a Texas Court granted decedent a divorce on the grounds of insupportability (74-89), i.e., “that marriage ha[d] become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the material relationship 1 The Surrogate, sua sponte noted in his Decision (5-10), that it is not clear from the Record whether decedent executed four originals of the 1996 Will or one original and three copies (8). 2 The Texas Will is contained in the Record on Appeal as Petitioner’s Exhibit #A (41-43). 4 and prevents any reasonable expectation of reconciliation” (Texas Family Code § 6.001). In the Divorce Decree, inter alia, the ex-husband was awarded the marital residence in Texas and all of its contents with the exception of decedent’s personal effects, and his retirement account of $385,778.75 (77); while decedent was awarded the New York property, $12,000.00, and the ex-husband was ordered to pay $1,673.06 a month on the KeyBank mortgage, on the New York property for 64 months ($107,075.84) (77, 81). Both parties were directed to “execute, sign and deliver to the other party all property and/or paperwork associated therewith for any items awarded to the other party...within 10 days, including any deeds, releases, transfer of title, etc. as needed to effectuate this division” (85). Decedent thereafter moved to the New York property and, on March 21, 2010, she died at the age of 43 from alcohol-related complications (28). At the time of her death, decedent’s only significant asset was the New York property, which was valued at approximately $200,000 (19). Despite a diligent and exhaustive search of the New York property, no Will was found among decedent’s personal effects (114-115,116-117). As a result, in April 2010, decedent’s parents, Meredith M. Stewart and Ronald L. Lewis (Objectants’ Witness No. 4), applied for and received Letters of Administration in Surrogate’s Court, Jefferson County 5 (18-23). They subsequently renounced their interest in the New York property in favor of decedent’s brothers (32-39). Approximately eight months after decedent died, the ex- husband learned of her death through an internet search (344- 345). The Simmons family did not contact the deceased’s family (346, 364). Shortly thereafter, the ex-husband’s father, petitioner James R. Simmons (Rebuttal Witness No. 2) filed the Texas Will in Surrogate’s Court, Jefferson County, petitioning for probate of that Will, and issuance of Letters Testamentary (44-54), and other relief (55-61). Petitioner alleged that, after the ex-husband learned of decedent’s death, he advised petitioner that “he had in his possession Decedent’s original Last Will and Testament dated July 15, 1996” (Texas Will) (57). Petitioner alleged that, because decedent’s testamentary disposition with respect to the ex-husband had been revoked by operation of law upon their divorce (see EPTL 5-1.4 [a]), he was entitled to decedent’s entire estate as the sole remaining beneficiary of the Texas Will (57-58). Decedent’s parents and brothers (collectively, objectants) objected to probate of the Texas Will, contending, inter alia, that petitioner should be estopped from offering the Texas Will for probate because, despite the provisions in the Divorce Decree requiring the ex-husband to turn over decedent’s personal effects and associated paperwork, he “wrongfully and 6 fraudulently deprived the decedent of the offered Will and the opportunity to access and evaluate the instrument in the context of her divorce” (95, 110). In addition, the objectants indicated that under Texas Probate Code §69, the ex-husband and each of his relatives would be considered to have predeceased the deceased, which would eliminate petitioner as a beneficiary and result in decedent’s estate passing through intestacy to her family (94-96, 109-111). The Surrogate denied petitioner’s request for Preliminary Letters Testamentary, but amended the objectants’ Letters of Administration to prohibit the distribution of estate assets (148-151). The Surrogate noted that if the Texas Will had been “held by...[the] ex-husband,...[it] should have been returned to decedent” (149). The Surrogate further questioned whether “equity prohibit [s] the ex-husband and/or his father from possibly secreting or obtaining the [Texas] Will via questionable means and then ‘resurrecting’ it by...bringing the [Texas] Will to New York?” (149). Objectants subsequently filed Supplemental Objections, asserting that decedent executed a second will in 2007 [Lost Will], thereby revoking the 1996 Texas Will (154-157,161-164). At the Hearing, objectants presented the testimony of decedent’s former neighbor, Marilew Barnes (Objectants’ Witness No. 1), who testified that she and decedent became very close in 2005 when decedent and the ex-husband were 7 having marital difficulties (187). The ex-husband “occasionally berate [d] [decedent] in public” (195) and, on one occasion, decedent appeared at the neighbor’s home “covered in bruises” (196). The neighbor testified that she helped decedent with her finances, which were “very bleak” (198). Because decedent suffered from short-term memory loss, the neighbor helped decedent make lists of the things that she needed to do (201). According to the neighbor, after the divorce was finalized, decedent’s top priority was the preparation of a new Will (201). In the late summer or early fall of 2007, decedent gave the neighbor a large manila envelope, which had arrived via UPS (208). The envelope contained a cover letter from an attorney’s office and a legal document entitled “Last Will and Testament” (208-209). Decedent asked her neighbor to read the document [Lost Will], and they then reviewed the terms together (208- 213)3. The Lost Will: revoked all previous wills and codicil. This next part of it instructed to pay her debts. The next paragraph was the Executrix who was her mother, Meredith. And then the final part of it was that the river house [the New York property] go to her brothers, John and Ron, and that a small stipend be given to her niece and nephew, ____________, maybe 3 The Surrogate found the neighbor, Marilew Barber, to be a highly credible witness, her testimony was accurate and that she saw what she described (9). 8 five hundred dollars apiece, two hundred dollars apiece, something like that [209-210]. The Lost Will was signed by decedent and two witnesses, both of whom indicated that they had witnessed decedent sign the document, and there was a raised and embossed notary seal and a notary statement at the end of the document (210-211). The Notary attested that the deceased signed the Lost Will (212). At decedent’s request, the neighbor stored the Lost Will in a file containing other papers belonging to decedent (213). In August 2009, the neighbor moved from the area and returned to decedent all of her papers, including the Lost Will (217-219). Finally, the neighbor was not aware of any contact between petitioner and decedent after the divorce (221). By contrast, decedent had a close relationship with her father and brothers, who regularly visited her at the New York property (238-239). A tenant, Joel Dart (Objectants’ Witness No. 2), who lived with decedent at the New York property from August 2006 until January 2008 never met petitioner and never heard decedent talk about him, and that he was not aware of any contact between the two (248). He had met decedent’s parents and brothers, however, and she “seemed to love them very much. It was a very caring family” (250-251). Decedent’s father and a tenant, Ben Olshfski (Objectants’ Witness No. 3), who lived with decedent from early 9 2008 until her death both searched the New York property after decedent’s death, but did not find any Will (269-270, 285-288). The main witness on behalf of petitioner was decedent’s former mother-in-law, Julia Simmons (Petitioner’s Witness No. 1), who claimed that, on July 15, 1996, decedent gave her “the” original 1996 Will [Texas Will] and “asked [her] to keep it in a safe place” (310). She placed the Texas Will “in a dresser drawer and showed [decedent] where [she] put it, so that [decedent] could retrieve it at any time she wished” (311). Thereafter, decedent never asked for the Texas Will and she never considered returning it to her (337-338). The Texas Will remained in her dresser until she learned of decedent’s death in late November 2010 (313). At that point, she “knew [she] had the Will and [she] said we have got to read the Will and see what it says” (347). When she opened the Texas Will, she was “shocked” to learn that petitioner was named therein (349). Within a few days, the ex-husband “got on the phone . . . to try to locate a lawyer” (313). Neither the-mother-in-law nor her son notified decedent’s family of the existence of the Texas Will (345-347). The ex-husband, James A. Simmons (Rebuttal Witness No. 1), indicated that, in 1996, he and decedent executed mirror wills, i.e., he left all of his property to decedent and decedent left all of her property to him (377). At the same time, they each also executed a Power of Attorney and a Health Care Proxy (378). 10 According to the ex-husband, they had “four copies of [each of the] six different documents done all the same day,” and they planned to keep one set at their Texas home, another set at the New York property, another set at his parents’ house, and the final set in a safe deposit box (386). They had “four sets of everything at each house for a reason,” i.e., “[w]e both traveled. We knew that one house could burn down” (389). According to the ex-husband, it was not until “the day we dug them out or my mom discovered them after we found out [decedent] had died” that they learned that his mother had “the” original Texas Will (387). Like his mother, the ex-husband testified that he was “shocked” that petitioner was decedent’s alternate beneficiary (387). The ex-husband admitted, however, that, after the divorce, he found “[o]ne of [the] four copies” of the 1996 Will [or Power of Attorney] “in some remaining paperwork” at their Texas property (389). Petitioner acknowledged that he was “not the Petitioner,” and that he was “just along for the ride” (398). After the Hearing, Surrogate Schwerzmann entered a May 18, 2012 Decision and Decree, which was subsequently amended to correct dates in a June 4, 2012 Amended Decision and Decree (5- 10; 12-17). Surrogate Schwerzmann first summarized the procedural history of the matter and the Hearing testimony (5-8; 12-15). It 11 should be noted that Surrogate Schwerzmann misidentified decedent’s siblings in his summary (5; 12). He then indicated that he had concluded that the July 5, 1996 Last Will and Testament [Texas Will] would be admitted to probate (8; 15). Surrogate Schwerzmann indicated several reasons for this conclusion (8-10; 15-17). Surrogate Schwerzmann indicated that the Texas Will enjoyed a presumption of due execution because it was executed in Texas under the supervision of a licensed attorney (8; 15). He further indicated that no challenge had been made to due execution or lack of testamentary capacity (8; 15). Surrogate Schwerzmann framed the question at hand as what effect, if any, the existence of an alleged subsequent Lost Will had on the Texas Will (8; 15). On the issue of due execution, Surrogate Schwerzmann indicated that he found the testimony of the neighbor, Marilew Barnes, to be highly credible, that he had no doubt that her testimony was accurate, and that she saw what she described, but that her testimony could not establish the necessary elements (9; 16). Surrogate Schwerzmann concluded, however, that while the testimony of what the neighbor saw established all of the components required to be in a Last Will and Testament, it cannot establish due execution as required under EPTL §3.2-1 12 because she did not witness the execution ceremony and the attesting witnesses were unknown (9; 16). Surrogate Schwerzmann recognized that the distribution in the Texas Will was drastically different than what an intestate distribution would be, and the fact that it was drafted ten years prior to decedent’s divorce, raises suspicion in [appellants’] eyes as to whether the Texas Will truly reflected what the decedent would have wanted when she passed in 2010 (10; 17). However, he concluded that “he was bound by the existing body of law in New York, and that he could not “set aside a duly proven will just because the testamentary disposition therein is different than what would be expected (10; 17). Therefore, Surrogate Schwerzmann dismissed the objections, revoked the Amended Letters of Administration and admitted the Texas Will to probate (10; 17). Surrogate Schwerzmann entered a May 22, 2012 Decree Granting Probate which revoked the Letters of Administration which had been issued to decedent’s parents and ordered that the Texas Will would be admitted to Probate (11). An Amended Decision and Decree was entered on June 4, 2012 correcting typographical errors as to dates in the May 18 Decree (5-10). The objectants’ Notice of Appeal from the May 18, 2012 Decision and Decree; May 22, 2012 Decree Granting Probate; and 13 June 4, 2012 Amended Decision and Decree was filed and served on June 15, 2012 (2-4). The Appellate Division, Fourth Department, in Opinions and Orders, entered January 3, 2014, affirmed, over the dissent of one justice, the Decree admitting the Texas Will to probate; and the Decree revoking the Letters of Administration and issuing Letters Testamentary in accordance with the Texas Will (426-477, 448-449). The appeal from the Amended Decree was unanimously dismissed (450- 451). The majority held that objectants never contended that the Texas Will was revoked by destruction, and that it would not consider that issue relating to the Surrogate’s sua sponte indication that it was unclear if there were four originals or one original and three copies (427-428). The majority further held the Texas Will was not required, under Texas Law, to be returned to the deceased, following the divorce, because it was not financial paperwork needed to effectuate the division of any property, and the ex-in-laws were not parties to the divorce decree (429). It determined that equity does not preclude the probate of the Texas Will because the law does not allow them, the majority, to do so (433). In addition, there is insufficient evidence, in law, to establish that the Lost Will was duly executed, which would operate to revoke the Texas Will, and that the law will not allow equity relief to prevail (430-432). Finally, the majority held 14 that they are “constrained” that an equitable remedy should not be fashioned herein because of the law (433). The dissenting justice would have reversed the Decrees because the evidence clearly established that the deceased revoked and/or intended to revoke the Texas Will (433, 441-444). The burden was on petitioner who failed to satisfy the Surrogate’s sua sponte concern regarding the possibility of multiple originals or an original and multiple copies of the Texas Will (438-439). In addition, the equities overwhelmingly favor denying probate of the Texas Will and permitting the deceased’s estate to pass through intestacy (444-446). By Order, entered March 21, 2014, the Appellate Division, Fourth Department denied objectants’ Motion for reargument or, in the alternative, for Leave to Appeal to the Court of Appeals (452- 454). By Order, entered June 12, 2014, based upon a Decision that same day, this Court granted objectants’ Motion for Leave to Appeal to the Court of Appeals (455-456). 15 THE HEARING Four witnesses testified on behalf of the objectants, one witness testified on behalf of the petitioner and two witnesses testified in rebuttal. No exhibits were received into evidence on behalf of the objectants, and one exhibit, the Texas Will (Petitioner’s Exhibit #A), was received into evidence on behalf of the petitioner. THE OBJECTANTS’ CASE 1. MARILEW BARNES (Decedent’s Neighbor). She and her husband moved to the North Country in November 2001 (185). They rented a home three doors down from the decedent’s river property and, in March 2002, purchased the house next door (185). The decedent and her former husband would come up for three months at a time in the summertime and that’s when they got to know them (185). It was very neighborly, they liked them very much and they would socialize often (186). In 2004, there was some incident with the husband’s position as an airline pilot and he wrote a letter in support of flight attendants and because of that great retaliation occurred and came to decedent and the husband in the form of letters and threatening calls (187). Decedent was very stressed by this whole situation and she needed some one to talk to and that was when she and decedent grew very close (187). 16 Between 2004 and 2005 decedent was consistently was losing weight and decedent claimed it was bulimia, which she [the witness] accepted (187). Decedent was consistently under a lot of pressure because she was having difficulty with a job in Texas and was commuting back and forth, until she moved permanently up to the New York property (187-188). During this time decedent and her husband had been having a lot of discussion about ending their marriage and that was a stressor on decedent also (189). In the fall of 2005, decedent came over to her house complaining of not feeling right and being afraid to be alone (188). She planned to take a quick shower before taking decedent to the E.R., but when she came out decedent was having a grand mal seizure (188). She called the rescue squad and they took her to the E.R. (188). Decedent’s mother came from Texas the next day (188). That visit did not go well, and decedent essentially banned her mother from the unit and her mother did not come back to see her again (189). When her mother came to the hospital, she tried to take control of the situation and decedent was very independent and became very annoyed (224). Decedent asked that they call social services and decedent got some sort of document so that her mother could not visit her in the hospital (225). Decedent’s relationship with her mother was a real love/hate relationship; sometimes they would have a pretty decent relationship but as soon as her mother 17 came within ten feet of her things changed rather rapidly and there was some old baggage that they had together, old issues (237). She only had minimal conversations with decedent about her father-in-law and was not aware that decedent had any contact with him (221). Decedent referred to her mother-in-law periodically (222). She never saw either of them come to the river (222). She observed decedent’s relationship with her father; he would come up periodically and do things around the property (238). Decedent’s father and his wife, Linda, would come up and they had their pontoon boat (238-239). When decedent’s brothers, Ronald and Jonathan, came from Texas she would get very excited and would fuss about it for a week or so (239). Decedent was suffering from delirium tremors from alcohol withdrawal (189). She was on constant I.V. and monitoring and the first 24 hours she was not cognizant of where she was or what was going on around her (189). She stayed with decedent for two days in her ICU room (189). Decedent was in denial about her alcoholism and blamed it on an eating disorder until this hospitalization (190). Decedent asked her, around Christmastime 2005, to be her Power of Attorney and the Power of Attorney was put into force in January 2006 (190). She had the original copy of that in her possession (191). She has no idea where that is now (191). There 18 was also a Medical Power of Attorney with herself as Power of Attorney and her (the witness’s) husband as the alternate (191). She had the original (191). The Powers of Attorney were done by an attorney in Texas (227). He was the same attorney the decedent had for the divorce (227). There was a time in late July or early August 2006 when another hospitalization occurred (192). Decedent had another grand mal seizure and she found her at the house and called an ambulance (192). They did a CAT scan of decedent’s brain and blood work but they also did sequential liver studies (192-193). She (the witness) had to present the medical Power of Attorney at the hospital and she spoke with the doctor twice daily when he would see her and with the radiologist who reviewed the CAT scan (193). It was patently obvious that decedent’s brain was much smaller than you would expect in a 35 year old woman (194). The doctor attributed that to prolonged alcohol abuse and said that in fact she had the brain of a 90 year old woman (194). He also indicated she had serious liver impairment as a result of chronic alcohol abuse and the prognosis was that he would be surprised if decedent lived six months if she continued drinking (194). The prognosis was shared with decedent (194). By that time in 2006, the former husband was not there very often and decedent had moved permanently to the New York property 19 (195). When decedent was in the presence of her former husband, he would sometimes berate her, even in public (198). Decedent returned periodically to Texas because her divorce attorney was there and she was employed with a company in Texas. (198). The deceased was divorced on April 30, 2007 (199-200). During this period she acted with the durable Power of Attorney on decedent’s behalf (198). She cleaned up decedent’s financial situation, which was very bleak and paid some bills with a personal check from her (the witness) own account (198). Decedent was in arrears with many utilities and here was a lot of catching up to do (199). She (the witness) paid decedent’s lawyer fee in Texas because otherwise he would not continue to act on decedent’s behalf (199). She (the witness) spent, on decedent’s behalf, somewhere between $8,000 and $10,000 on bills and the lawyer fees (199). She represented decedent at the new bank to set up a separate banking account (200). She strongly suggested that decedent get a safe deposit box (200). Decedent wanted advice about changing her name back to Lewis from Simmons (201). They used to make lists all the time because decedent had short-term memory loss (201). After the divorce, the top item on her list was a new Will and to change over all the accounts to her name (201). In late summer 2007, decedent brought a large manila envelope to her home (206-207). The envelope had been sent UPS and they 20 opened it and there was a cover letter and a legal document (208). She doesn’t know who it was from, aside from being from an attorney’s office, but there was a Last Will and Testament [Lost Will] inside (209, 222). When decedent signed this Lost Will, she (the witness) assumed it was in Texas, she had been going back and forth to take care of business connected with the divorce and the only attorney she is aware of there is Mr. Teller in Greg Isle (233). The first part of it revoked all previous Wills and Codicils and the next part of it instructed to pay her debts, the next paragraph was the Executrix, who was her mother, and the final part of it was that the river house go to her brothers, Ron and John, and that a small amount, five hundred dollars, or two hundred dollars go to her niece and nephew, Sarah and Jacob (209- 210, 222-223). She was struck by that because decedent didn’t have two dimes to rub together, but she loved those children (210). The Lost Will was signed and there were two witness signatures, although she has no idea who the witnesses were, and decedent had signed it (210-211). It was an original document (211). Both of the witnesses to the Lost Will indicated they had witnessed decedent sign the document, and there was a raised and embossed notary seal and a notary statement at the end of the document (210-211). The Notary attested that the deceased signed the Lost 21 Will (212). Decedent asked her to read the Lost Will and they discussed it (213). As with all of decedent’s other documents, bills and everything, the decedent had a specific plastic file that she kept all of her documentation in and it was on the first shelf of the coat closet on the first floor in her home and it stayed there for quite a spell (213). Decedent had a court ordered rehab at a facility in Ogdensburg because she had two DUI convictions, one in Clayton and one in Watertown, and she went and then came out of that program (214-215). The decedent secured a job at the Antique Boat Museum in Clayton, and was taking in laundry to help support herself and had a boarder at the house (214). After the rehab, decedent gained weight and looked like herself; she looked like she was getting her act together (216). When decedent had something to do, an appointment or had to go somewhere, she would pull herself together and she would do it (236). Decedent had been a very competent business woman, and pulled that back up when she needed to (237). When decedent was hiding in the house, she has no idea what decedent was like (237). She did not see decedent drunk and decedent often would not answer the door when she came over to check on her and that was a sign that decedent was drinking (232, 237). 22 There were three different boarders at decedent’s home (214). There was one soon after the divorce who wasn’t there long (214). Then Joel Dart (Objectants’ Witness No.2) was there for a while (214). After Joel left, Ben Olshfski (Objectants’ Witness No.3), who had been in rehab with decedent, moved in with her shortly after she was released from rehab (214). Her interaction with decedent’s boarders were just like with any neighbors (215). After they moved from the area, Olshfski, who was a mason, did some finishing work on her (the witness’s) house (215-216). Decedent had a combination safe in the basement through a cinderblock with an oval mirror hung over it (216). Decedent was very fearful that someone would enter the house uninvited and so she wanted the locks changed (217). She (the witness) called a locksmith and had the locks changed on the two entry doors into the house and paid for it (217). She and her husband left the river on August 31, 2009 (217, 220). She told decedent she was leaving about a month before and told her that she had her documents and she should come get them (217). About two days prior to the movers coming decedent came over and they had a very tearful goodbye and decedent took her documents (218). The documents she gave to decedent were receipts for all the bills that had been paid, hospital documents, court reports from her court appearance for her DUI and the two powers of attorney and her Lost Will (219). She suggested to decedent 23 that she get a safety deposit box for her documents, just to make sure they would be safe, but to put them in the safe in the house until she obtained that safety deposit box (219). She attempted to stay in touch with decedent, but each time she called, the phone was disconnected or decedent was not answering (220). Decedent’s e-mail account had been closed (220). In spring 2010 she got an e-mail from decedent’s half-sister, Heather, with a notice from the funeral home and she (witness) immediately contacted decedent’s family with her and her husband’s condolences (220-221). 2. JOEL DART (Boarder). He met decedent in August 2006 (244-245, 251). His daughter was renting a room from her and he was also looking for a place to live, so he rented a room from her for a little while (245). It moved into a relationship after that (245). He helped decedent out fixing the house up, mowing the lawn and snow removal (245). He paid rent (245). Decedent received the house through her divorce (246). Decedent’s former husband came to the house once to get some parts for his boat (247). He never met petitioner and doesn’t recognize him (248). He never observed phone calls between petitioner and decedent or saw that she received any mail from petitioner (248). Decedent loved her father real well (250). He went to decedent’s father’s house two or three times with her (251). Her mother came 24 from Texas once and visited (251). He met all of her brothers at her father’s for the holidays (250). She seemed to love them very much and it was a very caring family (250-251). In December 2007 or 2008, he gave decedent an engagement ring which she refused to take (251-252). By that time, decedent had met Ben Olshfski (Objectants’ Witness No.3), and he and decedent just parted company (252). After that they did go snowmobiling and stayed friends and talked on the phone all the time (252). He was notified the day she passed (253). 3. BEN OLSHFSKI (Boarder). He is appearing by subpoena and pursuant to the subpoena he was asked to bring any documents he had related to a statutory durable Power of Attorney or medical Power of Attorney, but he doesn’t have any of these documents (261). When decedent was in the hospital for the last time, he had a medical Power of Attorney, but he doesn’t have the paperwork with him (262). At first he signed it and then Ron, decedent’s brother, was added (262). Apart from that he hasn’t seen any paperwork of that nature (262). He met decedent at rehab in Watertown (262). He had gotten a DWI so he had to go there to rehab to keep his license (263). They developed a relationship. (263) He subsequently became a boarder at decedent’s house in the first part of 2008 (263). Joel Dart (Objectants’ Witness No.2) had 25 moved out by that time (263). He stayed with decedent until she died (264). The only real property decedent owned was the New York property (264). He purchased a vehicle for her (264). Decedent signed the boat over to him (264). Prior to decedent’s last hospitalization decedent signed the car he had purchased for her back to him (267). She had to so that she could be on Medicaid or whatever she was on (267). Decedent had some jewelry: he had bought her a diamond engagement ring; she also had a ring that was a one carat diamond with surrounding diamonds, but that was not the one he bought her; a one half carat diamond pendant; a yellow topaz ring; and two blue topaz rings (265-267). He doesn’t know what happened to that ring or some of her other stuff (265). Decedent may have pawned her jewelry because she was broke (271). He always made sure she had money, but she felt bad she didn’t have any of her own money (271). He was with decedent everyday during her last illness (267). When decedent was in the hospital, he was looking for the Lost Will because everyone was talking about the Lost Will (269). There was a safe in decedent’s home (268). It was not operational when he first moved in (268). He can’t remember if it was locked and she didn’t know the number or if she just didn’t remember the number, so he had a locksmith come in and change the 26 combination back to the original number (268). Only he and decedent had the combination for that safe (268). The items he removed from the safe were the deed to his house in Adams; his titles and registration; his passport and the stuff that was done to the house, like contractors pay stubs, material lists (269). There was no money, no jewelry, nothing like that (269). Somebody found a ring (269-271). The only items belonging to decedent in the safe were paperwork, like the stuff for the house, the blueprints, receipts and stuff like that (270). He put it on the pool table (270). He is 100% sure there was no Will or Power of Attorney among those papers (270). 4. RONALD LEWIS (Decedent’s Father). Following his appointment as co-administrator of decedent’s estate he proceeded to her residence (282). They were also at the house after her death, when everyone was there (282). He looked for paperwork (282, 285). There was a safe in decedent’s home and they looked at the safe (282-283). It was open and empty (283). Everything was out of it that they could see, with the exception a ring that was in a crevice in the back of the safe (283). All of decedent’s other papers were on the pool table (285). The only two things he found were the copy of the two Powers of Attorney (285). There were other boxes of information, paperwork, tax forms in the closet in the basement (285). He didn’t find a Will (285-286). They contacted several attorneys and law firms in 27 town asking if they had a Will (287). No one he contacted drew a Will for decedent (288). They looked for safety deposit boxes in the bank that she did her banking in but couldn’t find any safety deposit box (287). He did not tell decedent’s former husband’s family about decedent’s death (286). Decedent named her neighbors as agents at one point, as opposed to him (288). He brought a proceeding for administration based on the fact that he did not find a Will (287). PETITIONER’S CASE 1. JULIA SIMMONS (Petitioner’s Wife). Her son who was married to decedent lives in Fort Worth, Texas (291). She is retired and she had worked at various administrative or banking jobs where her husband was stationed in the Air Force (292-294, 316). They retired to Fort Worth and have lived there since 1974 (294). Decedent and her son were married from 1991 until 2007 (295). She never thought her son “married below his station”; she was very proud of decedent (319-320). Decedent was in rehab at one point for alcoholism immediately prior to when she filed for divorce (314). The divorce wasn’t particularly hostile (322). Decedent was given a choice of whether she wanted the Texas 28 property or the New York property (322). Her son has not remarried (332). When they were first married decedent and her son lived in an apartment in Fort Worth, approximately 20 miles away (295). She saw decedent almost weekly during the marriage (296). They would have dinner together or go shopping together and would travel together (296). They went to Hawaii for about five days and to Key West, Florida for four or five days (297). On both of those trips her husband and son traveled with them (317-318). They came up to the New York property a lot (297). Decedent would work with her [witness’] husband in the garden and she went to the golf course with him (301). Prior to the divorce, decedent accompanied her [the witness’s] husband to a funeral of a family member in Colorado (321-322). After moving out of their apartment, decedent and her son moved in with them for a period of about 3 months while they were waiting for a house to be built (297). Decedent didn’t have any children because she was afraid she would be a mother like her own mother (298). Decedent and her mother didn’t interact very well (319). The first time she met decedent’s mother, her mother told her that decedent was a liar (302). Decedent worked with mentally retarded adults in middle management and also wrote a lot of technical booklets for the 29 government (298). She had to travel a lot for work (298). Her son is an airline pilot (298). Decedent would come to her house if he had to be away for the holidays because of work (299). Decedent was very meticulous about records; she kept records of everything (301). She observed decedent with her father, Ronald Lewis (Objectants’ Witness No.4), when they came to New York, and when they came down for the wedding and on other occasions (303). Decedent had a good relationship with him (304). The last time she heard from decedent was mother’s day 2008, after the divorce (304-305). She didn’t speak to decedent, but decedent called and left a message on her answering machine (304). She had heard from decedent periodically after the divorce (305). After it was executed, decedent delivered the Texas Will to her home, placed it in her hand and asked her to keep it in a safe place (310). Her husband, the petitioner, James R. Simmons (Rebuttal Witness No.2), was not with decedent when she signed the Texas Will (313). He was sitting with her (the witness) in the den when decedent walked in and they both were surprised when decedent handed them the Texas Will and said she would like them to keep it in a safe place (313-314). Her son had executed a Will at the same time decedent executed the Texas Will and she also kept her son’s Will for safe keeping (308, 324-325). She was also given the second 2007 Will that her son executed after the divorce and has 30 held on to that (331-32). There was a Power of Attorney executed at that time, although she doesn’t have that now and was not given that for safekeeping (329-330). The Texas Will had been signed on the bottom by decedent and was witnessed by Shelly Beady and Talitha Roble (310-311). The Texas Will appears to be in the same condition as it was when decedent handed it to her (311). She put the Texas Will in a dresser drawer and showed decedent where she put it so that she could retrieve it any time she wished (311). The Texas Will stayed there until she gave it to her son James A. Simmons (Rebuttal Witness No.1), to deliver to the attorney after they learned about decedent’s death on or about November 27, 2010 (311). It was in an envelope when decedent gave it to her and she did not open it until she found out about decedent’s death (312-313, 323). At the time the Texas Will was executed, the assets the parties had were the Texas home and their salaries (326). They were getting ready to buy the New York property (326). Later when decedent and her [the witness’] son remodeled the New York property, her [the witness’] husband loaned them the money (327). Decedent never asked her for the Texas Will back, and her son didn’t ask to have it so he could return it to decedent (313, 337). She never thought she should return the Texas Will after the divorce and assumed decedent didn’t want it back (337-338). 31 She didn’t feel any special duty as custodian of the Will (365). She only read the Texas Will three or four days after decedent passed (332-333, 348-349). They found out decedent had passed when they had been discussing her at Thanksgiving dinner because she used to call her son frequently and then they hadn’t heard from her in several months (312, 343-344). That evening her son Googled decedent’s name and what came up was her obituary (312, 345).She didn’t call decedent’s family after learning of the death because they hadn’t called her [witness] to notify her of decedent’s death (346, 364). A couple of days later her son got on the phone to try to locate a lawyer in New York so he could do whatever was necessary to probate the Texas Will (313, 350). REBUTTAL 1. JAMES A. SIMMONS (Decedent’s Ex-Husband). He lives in Fort Worth, Texas and works as an airline pilot (371). The last three months of the divorce were amicable because it dragged on like things do and then he basically gave her what she wanted (394). The Texas Will that has been offered for probate by his father was drafted by a Mr. Driver (372). He knew him at the time but he doesn’t know him anymore (372). Decedent picked out Mr. Driver and his office was one mile from her office (372). He and 32 decedent did a planning session on what type of Will they wanted (372). When they executed their Wills they had a house in Texas and they were already in the process of buying the New York property (373). They had a modest savings account (373). From the time that decedent’s grandfather died, in March 1994, to the time they purchased the New York property in July 1997, he and decedent paid the taxes on the property (374). There was no understanding that that property was to remain in the Lewis family (374). He and decedent purchased it for market price (375). At the time the Texas Will was executed, they had already assumed paying the taxes on the New York property (376). He already had his own Will at the time the Texas Will was executed (377). It’s required when you are military and he is ex- military (377). He got a new Will at the time decedent did hers (377). They had a mirror Will, him to her and her to him (377). On decedent’s Texas Will, it was her choice that assets would go to his father (377). When they executed the Wills, the people present were Driver, the lawyer, and two females (380). He was present when decedent gave the Texas Will to his mother, but he didn’t know that was the original (385). They were shocked when they looked at the Texas Will after decedent’s death to find that his father was the alternate (387). He met with Driver, in April 2007, to have a new Will drafted for himself because they were now divorced (390). 33 They had four copies of six different documents done all the same day, four of her Will, the Texas Will, four of his Will, four of the Power of Attorneys and four of the directives to physicians, but there was only one original (386-387). They planned to leave one set at his parents’ house, one set at their Texas house, one set at the New York property and one set in a safe deposit box (386). The original Power of Attorneys were filed with the County Clerk and he has a copy (387). He was not notified that decedent was hospitalized in March 2010 (384). Decedent had full access to the Texas house when she moved all her stuff to New York and left what she wanted (389). 2. JAMES R. SIMMONS (Petitioner). He doesn’t consider himself the petitioner; he’s just along for the ride (398). He never sought to return the Texas Will to the deceased (399). POINT I PETITIONER FAILED TO PRODUCE ALL OF THE TEXAS WILLS. In affirming the decision of the Surrogate’s Court in Matter of Davis (45 Misc. 554, 557 [Surrogate’s Ct. Saratoga Cnty., 1904], aff’d 182 N.Y. 468 [1905]), this Court acknowledged and endorsed the principle that “a paper once duly executed as a will, but which has been expressly revoked by the testator, or which is 34 presumed to have been revoked by the happening of those facts which the law declares shall raise a presumption of revocation, ought not to be admitted to probate” (see also Matter of Probate of the Will of Staiger, 243 N.Y. 468, 472 [1926]---“If a will, shown once to have existed and to have been in the testator’s possession, cannot be found after his death the legal presumption is that he destroyed it animo revocandi”). Where there are multiple copies of a Will “as each contains the will of the testator, a revocation of either is a revocation of his will and thus revokes both” (Crossman v. Crossman, 95 N.Y. 145, 150 [1884]). Where the presumption of a Will being revoked due to destruction has been raised, it is the burden of the party seeking to offer the Will for probate to overcome such presumption (In re Will of Fox, 9 N.Y.2d 400, 408 [1961]; In re Estate of Philbrook, 185 A.D.2d 550 [3rd Dept., 1992]; In re Estate of Gray, 143 A.D.2d 751 [2nd Dept., 1988]). Furthermore, it should be noted that when an executed Will is left with a party for safe-keeping, a bailor/bailee relationship, founded on the principle of trust between the bailor and the bailee, is created (Scholen v. Guarenty Trust Co., 288 N.Y. 249, 253 [1942]; Fidelity & Guaranty Insurance Corporation v. Ballon, 280 A.D. 373, 376-377 [1942]; In re Estate of Cook, 147 Misc. 528, 535-536 [Surrogate’s Ct. Westchester Cnty., 1933]). 35 . . .as to preservation of the issue. Jefferson County Surrogate Peter A. Schwerzmann sua sponte stated in his June 4, 2012 Decision and Decree: It is not clear from the testimony of the witnesses if the decedent and [the ex- husband] left the attorney’s office with four original instruments or one original and three copies(8). The majority at the Appellate Division held that the issue of whether petitioner sustained his burden of demonstrating that the Texas Will had not been revoked, was not preserved for appellate review (427-429). However, it is respectfully submitted that the majority has improperly blurred preservation for appellate review with burden of proof (427-429). The burden, in the case at bar, has always remained on the petitioner to defeat the presumption of revocation when all of the originals are not produced, since the Surrogate had a concern as to the number of original executed Wills (8)(In re Will of Fox, 9 N.Y.2d at 408; In re Estate of Philbrook, 185 A.D.2d at 552; In re Estate of Gray, 143 A.D.2d at 752). The issue of whether the petitioner had met his burden of demonstrating that none of the originals of the Texas Will had been destroyed was an issue on the face of the Record that could, and should, have been addressed by the Appellate Division (213, 216-217, 269-270, 282-283, 310-311, 326-327, 389) 36 In Telaro v. Telaro (25 N.Y.2d 433, 437-439 [1969]), this Court indicated: ...it is well established that questions raised in the trial court or in the record, even if not argued in the intermediate appellate court, are nevertheless available in the Court of Appeals. Thus, it has been stated in the definitive treatise on the jurisdiction and practice of this court, that ‘If the question is properly presented in the court of first instance, it is available in the Court of Appeals even though not suggested in the Appellate Division’ it is well established that questions raised in the trial court or in the record, even if not argued in the intermediate appellate court, are nevertheless available in the Court of Appeals. Thus, it has been stated in the definitive treatise on the jurisdiction and practice of this court, that ‘If the question is properly presented in the court of first instance, it is available in the Court of Appeals even though not suggested in the Appellate Division (Cohen and Karger, Powers of the New York Court of Appeals, No. 1, at p. 624)’. Furthermore, appellants’ did, in their main Brief in the Appellate Division, argue that the evidence presented before the Surrogate, while not sufficient to establish the Lost Will to be admitted to probate, was sufficient to revoke the Texas Will because it, the Texas Will, had been lost or destroyed (see The Appellants’ Brief, pp. 42-45). In addition, it should be noted that the Appellate Division majority’s rigid adherence to “failure to raise”, overlooks its 37 own holding in People v. Erb (59 A.D.3d 1020, 1020-1021 [4th Dept., 2009]---SORA determination reversed on basis of defect in the proceeding not even raised by the defendant therein) when it ignored the Surrogate’s concern as to the number of original Wills, which concern is akin to a “mode of proceeding error” to which no objection is necessary to preserve its review and analysis (see People v. Patterson, 39 N.Y.2d 288 [1976]). . . . as to whether petitioner failed to demonstrate that the Texas Will had not been destroyed. In the case at bar, on July 15, 1996, decedent and her then husband, James A. Simmons (Rebuttal Witness No.1), executed Wills and other end of life paperwork (386). There were four copies of six different end of life documents that had been done on that day (386). They then went to the home of decedent’s then mother-in- law, Julia Simmons (Petitioner’s Witness No.1), and decedent gave her the Texas Will for safe-keeping (310-311, 328-329). Ms. Simmon’s husband, James R. Simmons (Rebuttal Witness No.2) the petitioner herein, was present at the time of this transaction (313-314). In their January 15, 2011 Objections, objectants pointed out that the decedent’s Divorce Decree required that any items of financial paperwork be turned over to the party to whom it belonged, and that as petitioner failed to do so, he was estopped from seeking probate of the Texas Will (73-89, 95). 38 The duty created by the Divorce Decree are circumstances that serve to modify the bailor/bailee relationship created between decedent and Ms. Simmons and required Ms. Simmons to return the Texas Will to decedent (see Scholen, 288 N.Y.2d 253). The information elicited at the Hearing amply supports the conclusion that neither petitioner nor Ms. Simmons made any effort to ensure that the Texas Will was returned to decedent prior to her death (312-313, 335, 337-338, 347-349, 351-353, 365, 399). However, upon learning of decedent’s death, within a period of three or four days, Ms. Simmons looked at the Texas Will, indicating she had not forgotten its existence and was quite aware of its location (348-349). At that time, she did not think the proper action was to contact decedent’s family in New York, but instead gave the Texas Will to her son, the ex-husband, and encouraged him to contact counsel and get it probated (312-313, 347-349, 351-353). When petitioner presented the Texas Will for probate, he presented only the one that had been held by his wife, Julia Simmons (41-43). Ms. Simmons maintained that the Texas Will in her possession, which was offered for probate, was “the original” which had been given to her by decedent for safe-keeping (310- 311). However, the ex-husband indicated that he did not know that the Texas Will produced by his mother upon learning of decedent’s death was “the original” (385). The Surrogate was even confused as 39 to whether there were four original Texas Wills or one original and three copies (8). It is significant that this Texas Will secreted by petitioner and his wife, Ms. Simmons, was the only one accounted for, thereby raising a presumption that the Texas Will was revoked (8, 310-311, 326-327, 389) (Staiger, 243 N.Y. at 472; Crossman, 95 N.Y. at 150). Decedent had specific locations in her New York property, a plastic file in her coat closet and a combination safe, where she kept important paper and there is no indication that any additional Texas Wills were located there (213, 216-217). A search of the safe following her death did not produce the Texas Will (269-270, 282-283). A search of local attorneys who may have been involved in decedent’s legal affairs and a search for a safety deposit box similarly did not produce any Texas Wills (287-288). Since no other Texas Wills were produced, petitioner failed to demonstrate that the Texas Will had not been destroyed/revoked, notwithstanding the ex-husband’s claim that there was only one original (8, 385-386) (Staiger, 243 N.Y. at 472). Therefore, due to the fact that petitioner failed to sustain his burden of demonstrating that the Texas Will had not been revoked, it was error for Surrogate Schwerzmann to admit the Texas Will to probate (10, 17). 40 POINT II DECEDENT DID EVERYTHING WITHIN HER POWER TO REVOKE THE TEXAS WILL. “There can be no doubt that a paper which was not intended by the decedent to take effect upon his death, should not be admitted to probate, though in the form of a will” (Matter of Davis, 45 Misc. 554, 557 [Surrogate’s Ct. Saratoga Cnty., 1904], aff’d 182 N.Y. 468 [1905]). This Court has repeatedly indicated that the intent of a testator “must be gleaned not from a single word or phrase but from a sympathetic reading of the will as an entirely and in view of all the facts and circumstances under which the provisions of the Will were framed” (Matter of Singer, 13 N.Y.3d 447, 450 [2009]; In re Bieley, 91 N.Y.2d 520, 525 [1998]; In re Fabbri’s Will, 2 N.Y.2d 236, 240 [1957]). In the case at bar, decedent’s only post-divorce testamentary intent was to revoke the Texas Will (95, 206-213, 221-223, 238- 239, 248). The undisputed testimony of the “highly credible” neighbor Marilew Barnes (Objectants’ Witness No. 1), who had no interest in the outcome, clearly demonstrated the execution of the Lost Will (206-213). In his Decision, Surrogate Peter A. Schwerzmann indicated that Barnes, who testified in significant detail about viewing the subsequent Lost Will was highly credible- 41 --her testimony was accurate and she saw what she described---, but that her testimony could not establish due execution pursuant to EPTL §3-2.1 (8-9, 206-213). Initially, it must be conceded that because Barnes was the only witness to testify regarding the subsequent Lost Will, that the necessary elements to probate the subsequent Lost Will are not present (SCPA §1407). However, a review of Barnes’ testimony indicates it was sufficient to establish revocation of the Texas Will (206-213, 222-223)(EPTL §3-2.1). It should be noted that a “later instrument may effect a revocation of an earlier will although inoperative in other respects” (Matter of Shinn, 7 Misc.2d 623, 624 [Surrogate’s Ct., Westchester Cnty., 1956]; see also Matter of Goldsticker, 192 N.Y. 35, 37 [1908]---wherein this Court indicated “it is doubtless true that under certain circumstances an instrument may be effective as a revocation of previous wills, and yet fail as a will itself”). Barnes reported that in late summer 2007, decedent brought a large manila envelope to her home (206-207). The envelope had been sent UPS and they opened it and there was a cover letter and a legal document (208). Barnes didn’t know who it was from, aside from being from an attorney’s office, but there was the Lost Will inside (209, 222). When decedent signed this Lost Will, Barnes assumed it was in Texas, because decedent had been going back and forth to take care of business connected with the divorce and the 42 only attorney she is aware of there is Mr. Teller, in Greg Isle (233). The first part of the Lost Will revoked all previous Wills and Codicils and the next part of it instructed to pay her [deceased’s] debts, the next paragraph was the Executrix, who was her [deceased’s] mother, and the final part of it was that the New York property go to her brothers, Ron and John, and that a small amount, five hundred dollars, or two hundred dollars go to her niece and nephew, Sarah and Jacob (209-210, 222-223). Barnes reported that she was struck by that because decedent “didn’t have two dimes to rub together” but she loved those children (210). The Lost Will was signed and there were two witness signatures, although she has no idea who the witnesses were, and decedent had signed it (210-211). Both of the witnesses to the Lost Will indicated they had witnessed decedent sign the document, and there was a raised and embossed notary seal and a notary statement at the end of the document (210-211). The Notary attested that the deceased signed the Lost Will (212). It was an original document (211). Decedent asked her to read the subsequent Lost Will and they discussed it (213). Standing alone, Barnes testimony was enough to demonstrate revocation, however, it should be noted that if petitioner’s counsel’s objections to certain questions to Barnes had not been incorrectly sustained, Barnes’ testimony would have been even 43 stronger (202-213). While Barnes was testifying about the subsequent Lost Will, objectants’ counsel asked Barnes to discuss what, if anything, decedent said to her about the Lost Will (202- 213). However, Surrogate Schwerzmann sustained petitioner’s counsel’s objections and this information was not elicited (202- 205, 207-208). It should be noted that this was error on Surrogate Schwerzmann’s part because such testimony about decedent’s execution of the subsequent Lost Will falls within the res gestae hearsay exception. Such an exception applies where the statements of the deceased are made in connection with actions that are part of the revocation of a written Will (In re Kennedy’s Will, 167 N.Y. 163, 172-173 [1901]). In the case at bar, executing the Lost Will was an action leading to the revocation of the Texas Will, and, therefore such statements should have been permitted to be heard (202-213) (In re Kennedy’s Will, 167 N.Y. at 172-173). In his Decision, Surrogate Schwerzmann relies on Matter of Katz (78 Misc.2d 790 [Surrogate’s Ct. Schoharie Cnty., 1974]) for his conclusion that because lack of proof of due execution cannot be shown, that revocation does not occur (9). However Matter of Katz (78 Misc.2d 790) can readily be distinguished, from the case at bar. The Surrogate in Matter of Katz (78 Misc.2d at 791) indicated there was “no proof” of due execution. In the case at bar, Barnes, a highly credible witness according to the Surrogate, 44 provided overwhelming evidence that the lost Will was properly executed pursuant to EPTL §3-2.1 (206-213, 222-223). Furthermore, it should be noted that in Matter of Katz (78 Misc.2d at 791), despite determining that a second Will was not properly executed, the Surrogate therein exercised his equitable powers to keep the testator’s wife from inheriting under the valid Will because she had committed fraud by tearing up a subsequent Will, in order to prevent the testator’s son from inheriting. In addition, the Lost Will may be said to constitute a revocatory instrument due to the circumstantial evidence of a lawyer being present to the execution and witnessing of that Lost Will under formalities of same under Texas Law (Matter of Estate of Sharp, 68 A.D.3d 1182, 1184-1185 [3rd Dept., 2009]). As such, the uncontradicted testimony of decedent’s intent was to revoke the Texas Will and her execution of the Lost Will, a document reflecting that intent (206-213). Upon divorce, “the relation of husband and wife, both actual and legal, is utterly destroyed, and no future rights can thereafter spring out of or arise from it” (Matter of Estate of Ensign, 103 N.Y. 284, 287 [1886]). In New York, the effect of a divorce is that “provisions of a governing instrument are given effect as if the former spouse had predeceased the divorced individual as of the time of the revocation” (EPTL §5-1.4[b][1]). However, in Texas, where the Texas Will was executed and remained, 45 with the in-laws, the governing law, Texas Probate Code §69, indicates that the result of a divorce is not only that a former spouse will be deemed to have predeceased the testator, but also “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”. In their January 15, 2011 Objections, objectants raised such issue with the Surrogate, indicating that pursuant to the law of Texas decedent’s divorce would have eliminated any devise to petitioner, decedent’s former father-in-law (95). It is possible to presume that decedent had more knowledge of Texas law, based on her long residency there, as well as the fact that she was advised by counsel during her divorce and less knowledge of New York law (74). Therefore, it is quite possible she believed that the Texas Will was invalid upon her divorce, given that the operation of Texas Probate Code §69 would result in both of the named beneficiaries, her ex-husband, James A. Simmons (Petitioner’s Witness No.5), and ex-husband’s father, James R. Simmons (Rebuttal Witness No.1), being considered dead (41-43, 73-89). It should further be noted that at the time of execution of the Texas Will, decedent and her ex-husband did not yet own the New York property (374-375). Therefore, both the possibility that the New York property would be an asset in her Texas estate and the possibility that it would be her domicile at the time of her 46 death were not eventualities she had planned for at that time. In light of the lack of possibility that the circumstances existing upon her death had been contemplated at the time of execution of the Texas Will, this Court should permit the estate to be distributed by intestacy (see Matter of the Estate of Kronen, 67 N.Y.2d 587 [1986]---estate permitted to be distributed through intestacy because Court shouldn’t attempt to reform Will to meet unanticipated circumstances). If the Texas Will is allowed to be probated, it should be noted that petitioner, who is “just along for the ride”, upon obtaining the New York property, will thereafter be in a position to pass it to decedent’s ex-husband, his son, through either bequest or intestacy (41-43). Such an outcome is clearly against the intent of both EPTL §3-5.1[b][1] and Texas Probate Code §69, both of which seek to keep former spouses from inheriting property simply because the other former spouse has failed to update his or her Will. In their January 15, 2011 Objections, objectants further indicated that pursuant to decedent’s Divorce Decree, the New York property was the only significant asset decedent retained (94). By the terms of the Divorce Decree, decedent gave up any interest she had in her ex-husband’s valuable American Airlines retirement savings plan (77-79). Throughout the remainder of her life, decedent struggled financially (194, 199, 214, 271). She relied on 47 her neighbor Barnes (Objectants’ Witness No.1), for financial assistance and resorted to pawning her jewelry and taking in laundry to stay afloat (199, 214, 271). The fact that she was in such financial straits makes it even more inequitable that the sole significant asset she retained be allowed to go to her ex- husband’s family (194, 199, 214, 271). Therefore, because Surrogate Schwerzmann determination that the subsequent Lost Will meticulously testified to by Barnes, along with the other evidence of decedent’s intent to not comply with the disposition in the Texas Will, did not serve to revoke the Texas Will, was against the weight of the evidence and his Decision and Decree must be reversed (5-10, 94-122, 154-157, 161- 164). POINT III SURROGATE’S COURT AND THE APPELLATE DIVISION ERRED IN NOT EXERCISING THEIR EQUITY POWER. This Court stated in State of New York v. Barone, et al. (74 N.Y.2d 332, 336 [1986]) in regard to equity power: The traditional judicial equity power in NY Constitution, article VI. § 7 is implemented by CPLR 3017 (a), which prescribes that: the court may grant any type of relief within its jurisdiction appropriate to the proof whether or not demanded, imposing such terms as may be just.” Our commonlaw process enhances this peerless feature of Anglo-American jurisprudence (see, e.g., Phillips v. West Rockway Land Col, 226 NY 507, 515; Kaminsky v. Kahn, 23 AD2d 231, 237 [and cases cited]; 48 Gibbs v. Guild, 9 QB Div 59 [CA]). While “[the] essence of equity jurisdiction has been the power of the Chancellor to *** mould each decree to the necessities of the particular case” (Hecht Co. v. Bowles, 321 U.S. 321, 329; see also 1 Pomeroy, Equity Jurisprudence §109 [5th ed]), the limitations on the variety, flexibility and sweep of its potential application must be reflected in a proportionate, prudential discretion by the initial equity trial court and then by a discerning scrutiny, especially of the intermediate appellate court possessing coordinate authority in that respect, along with its appellate review power (Majauskas v. Majauskas, 61 NY2d 481, 493-494; Northern Westchester Professional Park Assocs. v. Town of Bedford, 60 NY2d 492, 499; 1 Newman, New York Appellate Practice §4.01). This Court further indicated that “The Surrogate’s Court has full equity powers in matters over which it has jurisdiction” (Matter of Baby Boy C., 84 N.Y.2d 91, 100 [1994]; Surrogate’s Court Procedure Act §201[2]). Similarly, this Court has indicated that the Appellate Division was vested with the same power and discretion, as the lower courts, to exercise broad equity powers (Alliance Property Management & Development Inc. v. Andrews Avenue Equities, Inc., 70 N.Y.2d 831, 832 [1987]). In the case at bar, Surrogate Peter A. Schwerzmann initially recognized his equity power when, in his March 30, 2011 Decision, he questioned whether equity prohibited the ex-husband or petitioner from “possibly secreting or obtaining the [Texas] Will via questionable means and then “resurrecting” it by the [sic] 49 bringing the [Texas] Will to New York” (149). Surrogate Schwerzmann indicated that the only reason he did not resolve this question at the time was due to a lack of evidence (149). However, once all of the evidence had been presented, both the Surrogate and the majority at the Appellate Division felt “constrained by the law” to not exercise their equity power (10, 430-432). It is respectfully submitted that not taking action due to being “constrained” by the law is the antithesis of a court’s equity power. The inequity of allowing decedent’s ex-father-in-law, James R. Simmons (Rebuttal Witness No.1), to be the sole beneficiary of her estate is demonstrated by the complete lack of evidence that she retained any sort of relationship with him after the divorce (221, 238-239, 248). Joel Dart (Objectant’s Witness No.2), who lived with decedent for a period of time after the divorce, reported that he had never met petitioner or witnessed her have phone or mail contact with him (248). Marilew Barnes (Objectants’ Witness No.1), who was very close to decedent and assisted in managing her finances, reported that she was not aware decedent had any contact with petitioner, her ex-father-in-law (221). In contrast, Barnes reported that decedent had a close relationship with her father, Ronald Lewis (Objectants’ Witness No.4) who periodically came to the New York property to spend time with her, and that she became very excited when her brother Ron would come 50 to visit from Texas (238-239). Where there has been no indication of any relationship, or even any contact, this Court should not permit decedent’s ex-father-in-law to be her sole beneficiary (see Matter of Estate of Cullen, 174 Misc.2d 236 [Surrogate’s Ct. Cattaraugus Cnty., 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). In his June 4, 2012 Amended Decision and Decree, Surrogate Schwerzmann acknowledged that the fact that the Texas Will was drafted ten years prior to decedent’s divorce “raises suspicion” as to whether it truly reflected decedent’s testamentary wishes (10). However, despite such concern, Surrogate Schwerzmann indicated he was “bound by the existing law” to admit the Texas Will to probate (10). Such a failure to grant the appropriate equitable remedy, in light of the evidence, is in direct contrast to the principle of equity, which permits a court to fashion “any type of relief within its jurisdiction appropriate to the proof whether or not demanded, imposing such terms as may be just” (Barone, 74 N.Y.2d at 336). The majority at the Appellate Division similarly claimed to be constrained in its ability to fashion an appropriate equitable 51 remedy (430-432). The Appellate Division declined to distinguish between its case law in Matter of Coffed (59 A.D.2d 297, 300 [4th Dept., 1977]), where it endorsed a former step-child taking under a Will, and the instant matter where an ex-father-in-law, with whom decedent maintained no relationship, stood to inherit under the Texas Will. Given the overwhelming evidence that decedent’s testamentary intent was to revoke the Texas Will (see POINT II, supra), the Appellate Division should not have been constrained by its former case law, but instead should have utilized its equity powers to enact decedent’s intent (Barone, 74 N.Y.2d at 336). The Appellate Division further indicated it was “constrained” when it declined to adopt the logic of the dissenting Justice, who relied on the presumption of due execution of the Lost Will, because it was drafted by an attorney (431). However, given the “highly credible” testimony of decedent’s neighbor Barnes that the Lost Will arrived in an envelope and with a cover letter from an attorney’s office, there is no reason that the majority at the Appellate Division should not have exercised its equity power to also rely on such presumption (9, 209, 222). Therefore, in view of the unique facts herein, such self- imposed restrictions of their respective equity powers involve “extraordinary circumstances” presenting a question of law as to whether the self-imposed restrictions were an abuse of their respective equity powers as a matter of law (cf., Patron v. 52 Patron, 40 N.Y.2d 582, 585 [1976]). It should be noted that the essence of the late Judge Hancock’s dissent in Mercury Bay Boating Club, Inc. v. San Diego Yacht Club (76 N.Y.2d 256, 273 [1990]) is that New York law requires a level playing field when determining rights and responsibilities. In the instant matter, decedent and decedent’s family were not playing on an equal playing field. Decedent and decedent’s family were not aware that long after decedent and her ex-husband had divorced, the Texas Will continued to be held by decedent’s ex-mother-in-law, Julia Simmons (Petitioner’s Witness No.1) (28, 312-313, 343-344, 350). Simmons retained the Texas Will in her possession until it was worth something and only then took action to obtain that benefit. Therefore, given this fundamentally unequal playing field upon which decedent was operating when she sought to attend to her final affairs, and upon which decedent’s family was operating when they sought to settle her estate, the Surrogate and the Appellate Division should have exercised their equitable powers to ameliorate an unequal playing field (Mercury Bay Boating Club, Inc., 76 N.Y.2d at 273). 53 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: September 25, 2014