Surrogate Edward McCarty III
In a miscellaneous proceeding to determine the validity of a claim, respondent D'Arpa, executor of the estate of her father, Sanchez, moved for res judicata and failure to state a cause of action. At the time of his death, Sanchez was married to Alice and was survived by six children. Sanchez's will made no provision for Alice, who died a few months after him. Two of Alice's children, who were appointed her coexecutors, later filed a right of election on her behalf. D'Arpa rejected the right of election as invalid on the basis that it was not exercised by Alice during her lifetime. The court denied the motion, finding that this proceeding to enforce a claim is not barred by the law of the case. It noted that Alice's children are not attempting to exercise her right of election but are instead pursuing a claim based on a contract or promise, the value of which is equivalent to Alice's share.
