(dissenting). The executor and the special guardian of an incompetent legatee appeal from a decree of the Franklin County Surrogate’s Court which determines that Anna G. Kellas is entitled to share in the estate of John P. Kellas, deceased, as in intestacy and against the provisions of the will.
Appellants assert that claimant abandoned her husband in 1919 and has no election under section 18 of the Decedent Estate Law because of the provisions of subdivision 5 thereof: “ No wife who has abandoned her husband shall have the right of such an election.” The parties were married in November, 1914. Decedent had been married previously and his three children by the former wife resided with the parties at 90 West Main street, Malone, N. Y., until December, 1918, when claimant and her husband went to Arizona for the winter, returning to New York city May 11, 1919, going from there to Albany together on the twenty-third. He remained in Albany for medical treatment; she went to Malone on the following day and to her home at 90 West Main street, where she learned from LeRoy M. Kellas, a son of the decedent, who had married while his father and claimant were in Arizona, that the father, a short time previous, had conveyed the premises to him and that it was arranged that claimant and her husband should reside at the Franklin Hotel, located on the same street, where a suite consisting of a living room, a bed room and bath had been leased. Claimant went to the hotel, found her trunk and a few of her personal belongings, and left for her father’s home in Ogdens*429burg. She. returned to Malone and had a further conversation with the son on May twenty-sixth, during which he delivered to her a letter from her husband.
“ Malone, N. Y., May 26, 1917.
“ Dear Anna: It has come to me that you contemplate leaving me and are now arranging to that end. I forbid you to do any such thing or to go away from the place of my abode which is the Franklin House in Malone and I direct you to at once go there and occupy rooms I have provided there for you and I to live in and as soon as I reasonably can I will be there with you. I want to remain here until I get another ‘ Shot ’ from an expert who I am told is here. Or if you prefer you may come and stay with me here. But, I think perhaps it will be quite as pleasant at the Franklin where you can have pleasant association with Mr. Moody. Of course you cannot expect me to support you at any place other than at such reasonable place as I may choose and I of course will not do so and I am sure The Franklin will be a pleasant place for us to live. Hoping you will see it in the true reasonable light I am
, “ Your Husband,
“ J. P. REBLAS.”
On the same day she returned to her father’s home at Ogdensburg and never again had communication, directly or indirectly, with her husband. She remained in Ogdensburg until January, 1924, then obtained employment with an attorney in Malone and resided there until after the death of her husband, which occurred on June 18, 1934.
Her husband continued to pay the rent of the rooms in the Franklin Hotel for some months after her departure. His will was dated January 3, 1924, and was republished through the execution of a codicil on May 17, 1934. The only mention of the claimant was in the tenth paragraph, in part as follows: “ I have not in this will provided for the payment of anything to my present wife Anna Grace, she having without due cause or provocation abandoned me when suffering from illness and persisted and continued in such abandonment thus in my judgment forfeiting any claim to any bounty from me.” The clause further provided that the value of her dower interest in his real estate should be paid to her, the amount to be charged against his estate as a debt.
It is unquestioned that the letter quoted was in her husband’s handwriting and was delivered to her on May 26, 1919. It bears date exactly two years earlier. This, together with the fact that it is dated at Malone, while the husband was in Albany, is stressed by respondent’s counsel. I see little significance in these circumstances beyond what is obvious, that decedent’s children, and *430particularly the son, were not unmindful of their own financial interests in the estate of the father, and probably did not attempt to make more smooth the marital path of their father and his second wife. The conveyance of the premises at 90 West Main street, without the knowledge of claimant, was further evidence of the foregoing and possibly of a partial estrangement between claimant and her husband. Conditions similar to those here recited are not rare and, while distressing, do not furnish grounds for a legal separation. Claimant’s continued absence following her husband’s invitation to live at the hotel could only be justified and excused so as to entitle her to an election upon grounds sufficient for her to have obtained a judgment of separation. (Matter of Sadowski, 246 App. Div. 490.) There is an issue of fact as to the spaciousness of the apartment provided in the Franklin Hotel, but the surrogate found, “from the testimony it appears that there is no question but what the said hotel was of a character suitable to the position of the parties.” The rooms opened onto a porch and the dimensions seem to have been reasonably adequate. Lack of spaciousness of the quarters would hardly justify claimant’s continued absence for fifteen years. In the letter quoted she was given the option to stay at that hotel or return to Albany and stay with her husband until he came to Malone, The husband may have acted wisely in arranging a home for himself and his wife away from the residence where his daughters together with the son and a newly-married wife resided. General rumor has it that too many governing heads in a single household cause distressing dissensions. In any event, he had a right to select the domicile, and if it was reasonably adequate the leaving by claimant amounted to abandonment. Nothing is shown which excused claimant’s long absence. The order should be reversed and the prayer of the petition denied.
Decree affirmed, with costs to the respondent, payable out of the estate.