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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 64
In the Matter of the Estate of
Robyn R. Lewis, Deceased.
James Robert Simmons,
            Respondent;
Meredith M. Stewart, et al.,
            Appellants.




           John A. Cirando, for appellants.
           Julian B. Modesti, for respondent.




LIPPMAN, Chief Judge:
           At the time of her death in March 2010, it appeared
after a thorough search that decedent Robyn R. Lewis had left no
will.   Letters of estate administration were therefore issued to
her parents, Meredith M. Stewart and Ronald L. Lewis, pursuant to
SCPA § 1001 (1) (d); although decedent had been married to James

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A. Simmons, the marriage ended without issue in 2007 when the
couple divorced, leaving decedent's parents as her sole
distributees (see EPTL § 4-1.1 [4]).   They, however, renounced
their interest in decedent's Clayton, New York residence in favor
of decedent's brothers Ronald L. Lewis, II and Jonathan Lewis.
The Clayton property, which had been in decedent's family for
generations, would thus have passed to decedent's blood relations
but for the December 2010 filing in Jefferson County Surrogate's
Court of petitions to revoke the parents' letters of
administration and to admit to probate a will executed by
decedent in Texas in 1996.   That will bequeathed all of
decedent's property, real and personal, to her then husband James
A. Simmons, and named him as the will's executor.   The will had
been in the possession of the ex-husband's mother who retrieved
it from her dresser after her son informed her that he had
learned during a recent internet search of his former wife's
death some eight months before.   The son brought the will to an
attorney, and this proceeding was shortly commenced.
          The present petitions, however, were brought not by the
son but, nominally, by his father, James Robert Simmons.1
Although the son was disqualified by reason of his divorce from
decedent from serving as her executor or taking under the
proffered pre-divorce will (see EPTL 5-1.4 [a] [1], [3]),

     1
      Mr. Simmons senior made no bones about the fact that he was
not the real party in interest. He testified that he was "not
the petitioner" and was "just along for the ride."

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decedent's former father-in-law, who was named in the will as
decedent's alternate executor and beneficiary, was not so
disqualified under New York law,2 which governs the disposition
of decedent's New York real property, the sole asset of
significant value in her estate.   Objections to probate were
filed by decedent's parents and brothers.
            During the ensuing probate proceedings, decedent's ex-
husband testified that the will offered for probate was one of a
pair of reciprocal or "mirror" wills made by the then married
couple.    Those wills and several other instruments bearing on
end-of-life decisions were, according to the former husband,
executed during a single session at an attorney's office in Texas
in 1996.   Each instrument, he said, was generated in
quadruplicate, and although he described each set of four as
composed of one original and three "copies," the natural, albeit
less than certain, import of his testimony was that each copy was
intended to be a functional instrument.   He testified,

     2
      He was, however, under Texas law, which provides in
relevant part that "[i]f, after the testator makes a will, the
testator's marriage is dissolved by divorce, annulment, or a
declaration that the marriage is void, all provisions in the
will, including all fiduciary appointments, shall be read as if
the former spouse and 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" (VTCA Estates Code
§ 123.001 [b] [emphasis added]). After decedent's divorce, her
ex-husband's father, petitioner, ceased to be her "relative"
within the relevant definition of Texas law (see VTCA Estates
Code § 123.001 [a]).



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          "they were all done [the same day] at [the
          attorney's] office, both the originals of
          course and the copies. And we planned from
          that day, Robyn and I, to have one set at my
          parents' house, one set at our Texas house,
          one set at the New York house and one set in
          a safe deposit box. That was all planned out
          before we sat down that day and -- and signed
          all those signatures."
Later in his testimony he explained,
          "we had four sets of everything at each house
          for a reason. We both traveled. We knew one
          house could burn down, this, that and the
          other."
          During the probate proceeding, testimony was also
elicited from Marilew Barnes.   Ms. Barnes had been decedent's
friend, neighbor and confidante.   She had been given powers of
attorney by decedent -- both legal and medical -- and had
assisted decedent with financial and health-related matters
during the period following her divorce when her ability to
manage her own affairs was compromised by the debilitating and
ultimately fatal sequellae of alcohol addiction.   Ms. Barnes
stated that it had been a priority of decedent's to make a new
will once her divorce became final, and that in the fall of 2007
decedent brought to her for her examination, and then discussed
with her, what she understood to be a will that contained a
provision revoking all prior wills and codicils.   Nonetheless, as
noted, no will was found during a diligent post-mortem search of
decedent's home and possessions.
          The Surrogate, while not skeptical of Ms. Barnes's
account as to what she saw and read, and while acknowledging "how

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the fact that the will [offered for probate] was drafted 10 years
prior to the decedent's divorce raises suspicions in
[objectants'] eyes as to whether the will truly reflects what the
decedent would have wanted when she passed in 2010," nevertheless
understood himself to be bound to dismiss the objections to the
1996 will and to admit it to probate.   This was because Ms.
Barnes had not witnessed the signing of the evidently lost 2007
will and her testimony, therefore, could not prove that the will
had been duly executed.   Without proof of due execution, the lost
will could not, in the Surrogate's view, be given effect, even
for the limited purpose of revoking the 1996 will.   As to the ex-
husband's testimony indicating that the 1996 will had, by design,
been executed in four equally functional counterparts to be kept
separately at specified locations, among them decedent's post-
divorce Clayton, New York residence,3 the Surrogate noted only
that "[i]t is not clear from the testimony of the witnesses if
the decedent and Mr. Simmons left the attorney's office with four
original instruments or one original and three copies."
          A divided Appellate Division affirmed the Surrogate's
decision and decree (114 AD3d 203 [2014]).   This Court granted
objectants' motion for leave to appeal (23 NY3d 906 [2014]), and
we now modify.
          Preliminarily, we note that the lower courts properly


     3
      Decedent had been awarded the Clayton residence in the
couple's divorce settlement.

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refused to give revocatory effect to the lost will described by
Ms. Barnes.    Estates Powers and Trusts Law § 3-4.1 (a) (1) (B),
particularly as we have construed it in Matter of Coffed (46 NY2d
514, 519 [1979]), commands categorically that revocation of a
will by a subsequent will or other writing may be accomplished
only by executing the revoking instrument "with the formalities
prescribed . . . for the execution and attestation of a will."
As we observed in Coffed, this requirement's stringency has been
deemed necessary to prevent fraud and flippancy in the making and
revocation of testamentary instruments generally; its
prophylactic utility would be largely undone if it were
dispensable in the individual, seemingly sympathetic case (see
id. at 519).
           Although objectants' claim of revocation by a
subsequent writing was properly rejected, it does not follow that
the 1996 will was proved.   Indeed, the evidence before the
Surrogate raised a most serious, and unresolved, question as to
whether the 1996 will had been otherwise revoked, and while that
question persisted the will should not have been admitted to
probate.
           A will may, of course, be revoked not only by means of
a writing executed in the manner of a will, but by the testator's
act of destroying it with revocatory intent (EPTL 3-4.1 [a] [2]
[A] [i]), which act achieves the revocatory purpose even if there
remain will duplicates outstanding (Crossman v Crossman, 95 NY


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145, 152 [1884]).   That a testator has in fact revoked a will by
destruction is strongly presumed where the will, although once
possessed by the testator, cannot be found posthumously despite a
thorough search (Matter of Fox, 9 NY2d 400, 407-408 [1961];
Matter of Staiger, 243 NY 468, 472 [1926]; Matter of Kennedy, 167
NY 163, 168-169 [1901]).   The presumption, once raised, "stands
in the place of positive proof" (Staiger, 243 NY at 472) and must
be rebutted by the will's proponent as a condition of probate
(Matter of Fox, 9 NY2d at 407).
            Here, the facts of record, adduced in critical part
through the testimony of petitioner's son, supported inferences
that decedent executed her 1996 will in quadruplicate, with each
document having been meant to possess the force of an original
instrument; that one of the will duplicates was kept at the
Clayton, New York home where decedent resided after her divorce;
and that, after a thorough search, no will was found there.
Plainly, these circumstances sufficed to raise the presumption
that decedent revoked her 1996 will by destroying it.   It is
equally plain that that presumption was not rebutted.   None of
the other duplicate wills was produced or otherwise accounted
for.   And, although petitioner now urges that the unproduced
duplicates were merely copies, the uncertain status of the will
duplicates, although commented upon by the Surrogate, was never
resolved.   We are left then with a will admitted to probate upon
a record sufficient only to disprove it.


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             It is precisely to avoid such an incongruous outcome
that the governing rule of proceeding has long been that
             "[a]s soon as it is brought to the attention
             of the surrogate that there are duplicates of
             a will presented to him for probate, it is
             proper that he should require [the]
             duplicates to be presented, not for the
             purpose of admitting both as separate
             instruments to probate, but that he may be
             assured whether the will has been revoked,
             and whether each completely contains the will
             of the testator"
(Crossman, 95 NY at 152; and see e.g. Matter of Robinson, 257 App
Div 405, 407 [4th Dept 1939]; Matter of Blackstone, 172 Misc 479,
484 [Surrogates Court, NY Co. 1939]).    Here, it is manifest that
the Surrogate's attention was drawn to the existence of will
duplicates, but the consequently arising issues as to the will's
validity were not resolved as they should have been in accordance
with Crossman's instruction.     Petitioner was required not merely
to exclude the possibility, but to rebut the legal presumption of
revocation, sufficiently raised by the ex-husband's testimony as
to the existence of will duplicates, one of which had been kept,
but was not found after decedent's passing, at her post-divorce
residence.    The necessity of such a showing was in this matter
highlighted by the circumstance that the 1996 will, reciprocally
bequeathing all of decedent's property to her then husband,
reflected a testamentary design irretrievably bound up with the
testator's since terminated spousal status.
             While the record in its present state would only
support a denial of probate, we recognize that the crucial issues

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raised by the duplicate will testimony were not framed for
resolution as they should have been and that this may have
operated to deprive petitioner of a fair opportunity to avoid or
rebut the presumption of revocation which otherwise must control
the outcome of this proceeding.    We therefore remand the matter
to the Surrogate so that these pivotal issues can be fully
litigated and determined.
          Accordingly, the orders of the Appellate Division
should be modified, without costs, by remitting to Surrogate's
Court for further proceedings in accordance with this opinion,
and, as so modified, affirmed.




                                 - 9 -
Matter of the Estate of Robyn R. Lewis
No. 64




PIGOTT, J.(concurring):
          While I agree with my colleagues that remittal to
Surrogate Court is the appropriate result, I write separately to
express my disagreement with the majority's dicta, in the hope
that this added language will not be misinterpreted as a holding
by this Court and lead the Surrogate to believe the issue has
already been decided.
          The issue for the Surrogate to resolve on remittal is
whether there were four original instruments or one original and
three copies of the decedent's will (see Roche v Nason, 185 NY
128 [1906]; In re Andriola's Will, 160 Misc 775 [Sur Ct 1936]).
If the Surrogate determines that there were four original
instruments, it must then decide whether the presumption of
revocation was triggered and whether that presumption was
rebutted (see Crossman v Crossman, 95 NY 145 [1884]
[presumption]; In re Fox' Will, 9 NY2d 400 [1961] [rebuttal]).
          The majority discusses the ex-husband's testimony and
surmises that "the natural, albeit less than certain, import of
[the ex-husband's] testimony was that each copy was intended to
be a functional instrument" (maj opn at 3).   The majority further
states that "ex-husband's testimony indicat[es] that the 1996


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will had, by design, been executed in four equally functional
counterparts to be kept separately at specified locations" (maj
opn at 8 [emphasis added]).   In doing so, the majority, in
essence, discredits the ex-husband's testimony that he and the
decedent executed "two wills, two power of attorneys and two
directive to physicians", and that there was only one original of
"each six documents."   The quality and weight afforded to ex-
husband's testimony, as well as any other testimony, is clearly
in the province of Surrogate Court.    In other words, whether
there were "four equally functional counterparts" of the
decedent's will is a question of fact that is left to be resolved
by the Surrogate.
          The majority then suggests, again in dicta, that
          "the facts of record, adduced in critical
          part through the testimony of petitioner's
          son, supported inferences that decedent
          executed her 1996 will in quadruplicate, with
          each document having been meant to possess
          the force of an original instrument; that one
          of the will duplicates was kept at the
          Clayton, New York home where decedent resided
          after her divorce; and that, after a thorough
          search, no will was found there ... [and
          that] ... [p]lainly, these circumstances
          sufficed to raise the presumption that
          decedent revoked her 1996 will by destroying
          it. It is equally plain that that
          presumption was not rebutted" (maj opn at 7
          [emphasis added]).
          While the majority may claim that it is simply reading
the record before it, this dicta may be viewed by some as a
disguised holding.   "However grievous the errors a court commits
when it writes dictum disguised as holding, those errors would be

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neutralized if the next court would recognize the prior dictum as
nonbinding and go on to grapple with and decide the issue” (see
Leval, Madison Lecture: Judging Under the Constitution: Dicta
about Dicta, 81 N.Y.U. L. Rev. 1249, 1268-1269 [2006] [emphasis
added]).    I encourage the Surrogate Court to "grapple with and
decide the" issues without consideration of the majority's dicta.
*   *   *    *   *   *   *   *    *      *   *   *   *   *   *   *   *
Orders modified, without costs, by remitting to Surrogate's
Court, Jefferson County, for further proceedings in accordance
with the opinion herein and, as so modified, affirmed. Opinion
by Chief Judge Lippman. Judges Read, Rivera, Abdus-Salaam and
Stein concur. Judge Pigott concurs in result in a separate
concurring opinion. Judge Fahey took no part.

Decided June 4, 2015




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