## Facts

- Esther Scheck died in 1936, leaving a will and two codicils that were admitted to probate in the Surrogate’s Court, Kings County, New York.
- One codicil gave detailed directions that Scheck’s body be transported to Palestine and buried there, and it set aside $1,200 for that purpose.
- Before learning of the codicil’s burial direction, Scheck’s children arranged burial in New York, spending $189.33.
- In an accounting proceeding to close the estate, the Surrogate discovered that the burial direction had not been carried out and required an explanation, noting that noncompliance would leave roughly $1,000 in the estate for distributees.
- The distributees stated they wanted the remains left undisturbed and submitted affidavits:
  - Affidavits from rabbis asserting that disinterment and removal for reburial would violate Jewish tenets and Hebrew law.
  - Affidavits from a son and the son’s wife stating that, after executing the codicil while living in Palestine, Scheck later returned to New York, became estranged from her husband in Palestine, stopped paying for a Palestine burial plot, paid on a New York plot, and repeatedly said she wished to be buried in New York.
- For purposes of its legal discussion, the Surrogate assumed the affidavits’ factual assertions were true, including that the final verbally expressed wish was burial in New York and that disinterment and reinterment in Palestine would be contrary to Hebrew law.

## Issues

1. Whether assertions that disinterment and removal would violate Jewish law supply a legal basis, under New York law, to disregard the codicil’s written direction for burial in Palestine.
2. Whether the submitted affidavits raised a sufficient factual dispute about the decedent’s later, orally expressed burial wishes to require an evidentiary hearing before deciding whether the codicil’s burial direction must be carried out.

## Decision

- The court held that the religious-law objections, even if sincerely held and assumed true, were not controlling in a New York probate proceeding where the court must apply local civil law.
- The court concluded that the affidavits created questions that could not be resolved on papers alone concerning whether there was adequate proof to overcome the codicil’s written burial instruction.
- The court directed that a hearing be held to take evidence and determine whether the record was sufficient to rebut the codicil’s burial direction and to decide what instructions should be given in settling the account.

## Legal Principles

- New York courts apply local civil law in supervising estate administration; religious rules and customs may be respected only to the extent consistent with governing law.
- Written burial directions in a probated instrument are weighty evidence of the decedent’s intent and require explanation when they are not followed in estate administration.
- When interested parties claim that the decedent later changed burial wishes and offer affidavits to that effect, the Surrogate may require an evidentiary hearing to assess the proof rather than decide the issue solely on affidavits.
- In an accounting, the Surrogate may scrutinize deviations from express directions where the deviation produces a financial gain to distributees.

## Conclusion

In *In re Scheck’s Estate*, the Surrogate confronted an estate accounting showing that the decedent’s probated codicil directing transportation of her body to Palestine for burial had not been carried out, producing a substantial cost savings for distributees. Treating the affidavits about Jewish-law objections and later oral statements as true for purposes of analysis, the court ruled that religious-law objections were not determinative under New York law and ordered a hearing to decide whether the evidence was sufficient to rebut the codicil’s written burial instruction before settling the account and directing further action.


In re Scheck's Estate, 172 Misc. 236, 14 N.Y.S.2d 946 (1939)