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MATTER OF GARDNER

176 A.D.2d 142 (1991)

In the Matter of The Estate of William D. Gardner, Deceased. Isabelle Lewis, Respondent; Perrie A. Forney, as Executrix of William D. Gardner, Deceased, Appellant

Appellate Division of the Supreme Court of the State of New York, First Department.

September 17, 1991

Petitioner's right to an accounting is dependent upon recognition of Catherine Gardner as "surviving spouse" of decedent. As it has been undisputed that they were married, the burden was upon respondent to establish a disqualification under the sections relied upon by her, EPTL 5-1.2 (a) (5) and (6) (Matter of Maiden, 284 N.Y. 429; Matter of Riefberg, 58 N.Y.2d 134). While it is clear that Catherine Gardner departed the marital...

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