The petitioner-respondent is the widow of the decedent and she has a personal right of election, as provided in section 18 of the Decedent Estate Law, to take her share of the decedent's estate as in intestacy, unless she "has abandoned" her husband and, as provided in subdivision 5 of that section, has thus lost the right of election which she would otherwise have. I agree with the holding that the Legislature intended under that subdivision to exclude a wife from the benefits of the statute only where the wife's "abandonment" would be cause for an action of separation as provided in section 1161 of the Civil Practice Act. I agree, too, with the holding that the administrator of the estate and the legatee have the burden of establishing such an abandonment. I dissent only from the conclusion that they failed to sustain that burden in this case.
Concededly, the wife left her husband in November, 1928. She took with her two trunks containing her belongings and it is clear that she did not intend to live with him again. Though her husband died more than eight years after she had left him, the wife never, in the interval, saw the decedent or communicated in any way with him. She brought no action against him and made no claim against him during his life for support. It is true, as Judge SEARS *Page 434 says in his opinion, that "The reason for leaving is inseparable from the act." Perhaps only the wife knew the reason for her act. At least it is certain that only the husband or the wife could know the reason. The husband's lips are sealed by death; the wife has offered an explanation of her act which would furnish justification if credited. The Surrogate, as the trier of the facts, refused to give it credence and found that she had abandoned her husband. The reversal by the Appellate Division of the decree of the Surrogate's Court was not upon the ground that the Surrogate should have accepted the testimony of the wife but upon the ground that if that testimony is rejected the record is bare of proof that the wife "abandoned" her husband; and in this court no other ground has been considered.
Doubtless proof or concession of the fact that a wife left the joint home, even with intent not to live with her husband thereafter, would not, standing alone, sustain a finding that she acted without justification and without consent of her husband. Here there is much more. A wife who has had no communication with her husband for more than eight years prior to his death and made no claims upon him for separate support at a time when the husband could have testified as to what occurred prior to his wife's departure, seeks a share of his estate after his death when she alone can explain the reasons for her departure. The decision of the Appellate Division means, I think, that though the wife is the only person who could show whether her act, at least equivocal, was justified by misconduct of her husband, her assertion of a right to which she would not be entitled if her act was without justification can be defeated only by affirmative proof that the husband was without fault and gave no consent. That where the wife gives false testimony to establish that the husband was guilty of misconduct which justified her in leaving him, the trier of the fact may not draw an inference that she could not truthfully testify that her husband was guilty of misconduct justifying her act. Such a holding seems to *Page 435 me illogical and calculated to thwart the purpose of the statute and to place a premium upon dishonesty.
The order of the Appellate Division should be reversed and the decree of the Surrogate affirmed.
LOUGHRAN, LEWIS and CONWAY, JJ., concur with SEARS, J.; LEHMAN, Ch. J., dissents in opinion in which FINCH and RIPPEY, JJ., concur.
Order affirmed, etc.