In re the Estate of Schmidt

Crosby, J.

The testatrix, Wilhelmina Schmidt, and Adolph Schmidt were married and lived together as man and wife for a little over one year. Then Mrs. Schmidt abandoned her husband and afterward entered into a bigamous marriage with one Kallusch. After the separation Mr. and Mrs. Schmidt never saw each other again although they both lived for over twenty years after their separation. About ten years after the separation Mr. Schmidt obtained from Mrs. Schmidt a release of her interest in all his property, as well as a surrender of all interest in any estate he might leave at his death. For this release Mr. Schmidt paid his wife $500. Mr. Schmidt never gave his wife any release of his interest in her estate, and he never contributed anything to her support after she abandoned him. Mrs. Schmidt predeceased her husband by a few weeks. The administratrix with the will annexed of Mr. Schmidt began this proceeding to compel the executor of Mrs. Schmidt’s will to set aside the exemptions mentioned in section 200 of the Surrogate’s Court Act for the benefit of the estate of Mr. Schmidt. From a decree dismissing the petition this appeal is taken.

The decree should be affirmed. Section 200 of the Surrogate’s Court Act provides that “ If a person having a family die, leaving a widow or husband, or minor child or children the following articles shall not be deemed assets, but must be included and stated in the inventory of the estate as property set off to such widow, husband or minor child or children.”

Then follows a list of articles, and money and property usually spoken of as exemptions.

It is perfectly apparent why these so-called exemptions are provided for. Formerly they comprised a few bare necessities of family existence — the cow, the ten sheep, the candlestick, the loom and spinning wheel, the family Bible, etc., and were calculated to preserve the family, bereft of father or mother, even at the expense of depriving creditors of their just dues. These exemptions have been increased of late, and the list has been modernized to meet new conditions. Today the exemptions take a substantial part of any small estate. But the theory upon which they are allowed has never changed. The language of the statute itself discloses the theory. They are for the benefit of the family. Just-as a home is more than a house, so a family is more than a marriage. We are aware of cases holding that a man and wife constitute a family though they do not live together. Such a case is Matter of Burridge (261 N. Y. 225). But in that case, even though the husband and wife did not live together, provision for the wife’s support was made by the husband. And, in the opinion in that case, it was said: “ In the light of the history of the statute there can be no doubt that the exemptions were intended, primarily, to provide for the comfort and support of the family when the owner of the property, which has been used for family support and comfort, dies.”

And again: “ It is not enough that the decedent leaves a widow or husband or minor child or children. There must be a bond, however loose, which creates a collective ‘ family.’ ”

How can there be said to be a family where a husband and wife have not even seen each other for over twenty years, where there are no minor children, where the wife is living in adulterous relation with another man, and where her abandonment of him is fully acquiesced in by him, and where he has bought from her a release of her interest in his property and has not contributed a penny to her support for two decades? If such conditions make a family then the word “ family ” has lost its ancient and honorable meaning and becomes merely an excuse for taking property that may be needed to pay creditors.

The decree should be affirmed, with costs.

All concur, except Taylor and Thompson, JJ., who dissent in an opinion by Thompson, J., and vote for reversal and for remitting the matter to the Surrogate’s Court. Present-—Sears, P. J., Taylor, Thompson, Crosby and Lewis, JJ.