155 N.Y.S. 873 | N.Y. App. Div. | 1915
This is an action to probate a will under the provisions of section 1861 of the Code of Civil Procedure, which provides that an
The will sought to be established is that of Albert A. Adams, a resident of this State who died at Phoenix, Ariz., on November 24, 1913, in which will the plaintiff, his wife, is named as general legatee. The original will cannot be produced because it is now on file in the Superior Court of Maricopa county, Ariz., whence under the laws of Arizona it cannot be removed.
The defendants are the beneficiaries under a later will, and the question involved is as to the validity of the later will. That question is purely one of law, there being no dispute as to any of the material facts.
At the time of the making of the will now sought to be proved Albert A. Adams was a resident of the State of New York, engaged as a traveling auditor by the Standard Oil Company. He was about sixty years of age and in poor health. He had no immediate family, his nearest relative being a sister.
On October 27, 1909, he married the plaintiff, then about thirty years of age, who had been a school teacher. Four days later he executed the will now sought to be probated, by which he gave all of his estate to plaintiff, except a legacy of $1,000 given to a Miss Clarke.
It appears from the undisputed and unimpeached evidence of a wholly disinterested witness, as to statements made by Adams to the witness that this will was made pursuant to an ante-nuptial agreement between Adams and the plaintiff that if she should marry him he would make a will in her favor and leave all he had to her at his death. This witness was one Charles 0. Scholder, the special agent of the Standard Oil Company at Memphis, who had known Adams for several years but had had no acquaintance with plaintiff until the time of the marriage. He testified that Adams came into his
So we have as established facts of the case a pre-nuptial agreement that if plaintiff would marry testator he would make a will by which he should leave her and she would receive at his death all of his property except $1,000; a fulfillment of the agreement by plaintiff on her part by entering into the marriage, and a fulfillment of the agreement by Adams on his part by the making of such a will as he had agreed to make. About two years later, on August 12, 1911, Adams executed another will in which he recited that he had given his wife three-fourths of his property, and then gave what ■ he had left to the appellant Edith. Hoyt Smith, his niece, in trust for her mother for life, with reversion to herself: There is no question as to the factum of either will, or as to the valid execution of either under the laws of this State, nor is there any suggestion of undue influence, lack of testamentary
The later will has been offered for probate in New York county, but has not yet been admitted, its probate having been stayed by a temporary injunction in this action, and being permanently enjoined by the judgment appealed from.
The plaintiff’s claim is that the ante-nuptial contract by Adams to give all of' his property to his wife at his death, by the execution of a will to that effect, having been fully executed by the marriage and the subsequent making of the will became a valid, binding and executed contract; that the first will was irrevocable, and that any subsequent will was invalid for lack of power in the testator to execute it.
The appellant makes several objections to the judgment which deserve consideration. She does not question the well-established rule that it is possible for a person to bind himself, by contract, to leave his property in a particular way, and that if such a contract be validly made upon sufficient consideration it will be enforced in equity. She objects, however, that it cannot be enforced in this action. Her argument is that whatever claim plaintiff may have to all of the testator’s estate must rest upon her contract with him, and not upon the will made in fulfillment of it; that the action in this court for the probate of the first will is merely substitutional for the ordinary probate proceedings in the Surrogate’s Court, and that, but for the circumstance that the first will cannot be produced, application'for its probate would have to be made to the Surrogate’s Court, in which case that court would be obliged to refuse probate to the earlier will in favor of the later properly executed- will, leaving plaintiff to sue the executors of that will in equity. It is quite true that upon an application for probate the Surrogate’s Court would have no jurisdiction to try out the question of the making and effect of the ante-nuptial agreement, or to enforce its provisions. This is because the Surrogate’s Court is of limited jurisdiction and has no general equity powers. With the Supreme Court it is different. It has general equity
The point upon which the appellant argues most strenuously and upon which she apparently mainly relies is that, assuming the contract to have been made as testified to it was void under the Statute of Frauds of this State, and under a similar statute of Colorado where the agreement was made, in that it was made in consideration of marriage and was not expressed in writing. The plaintiff’s answer to this contention is that the
It must be conceded, and the plaintiff does concede, that the mere fact of the marriage standing alone would not take the case out of the statute, and that even the reduction of the contract to writing after the marriage, with no other consideration than the marriage to support it, would not have avoided the bar of the statute. For these undisputed propositions the appellant cites ample authority. Neither of these cases, however, is before us. On the contrary we have quite a different case. A pre-nuptial agreement that if plaintiff would marry the testator he would leave all his property to her by will; an acceptance of the proposal; a fulfillment of the agreement on plaintiff’s part by marriage; a fulfillment of the agreement by testator by the making of such a will as he had agreed to make. Here then was an agreement entirely completed by both parties in so far as it was possible to complete it. Plaintiff on her part had, in fulfilling her agreement, taken an irrevocable step. It would be most unjust and inequitable to hold that the decedent having in form fulfilled his part of the agreement, could rescind his action and revoke his performance. The case does not differ in principle from de Hierapolis v. Reilly (44 App. Div. 22; affd., 168 N. Y. 585) and Kerker v. Levy (140 App. Div. 428; affd., 206 N. Y. 109). The case before us greatly resembles Mutual Life Ins. Co. v. Holloday (supra), which, although decided at Special Term, is entitled to much weight for the cogency of its reasoning, as well as for the high reputation of the justice who decided it. It arose out of a verbal contract between a husband and wife under which the husband conveyed to the wife, through a third party, a valuable piece of real estate, and she agreed that in case she died before her husband she would transmit the property to him by will. After the conveyance to her and in pursuance of her agreement she executed a will in favor of her husband. She predeceased her husband and remained seized and possessed of the property until her death. Shortly before she died she executed a will leaving the property away from her husband. The claim in that case, as in this, was that under the circumstances the
The views thus expressed are well supported. (Sherman v. Scott, 27 Hun, 331, cited by Judge Van Vorst as Sherman v. Butts.)
I have not overlooked the very recent case of Wallace v.
In the principal case we have, it is true, the evidence of but a single witness as to the declaration made by Adams concerning the agreement he had with plaintiff, but that witness is clearly disinterested, and no attempt is made to impeach him or to discredit his testimony. Indeed the appellant has argued her case upon the tacit assumption that the witness Scholder testified truly as to his conversation with the decedent. If that evidence be accepted as true it discloses much more than chance declarations made by Adams as to his agreement with plaintiff. It appears, as has already been said, that Adams expressly declared that he stated to Scholder the terms of the contract with plaintiff “so that if at any time it became necessary he wanted a witness both to the marriage and to the agreement.” It seems to me that this testimony fulfills the most exacting requirements as to the quality of evidence necessary to establish the contract upon which plaintiff sues.
The judgment appealed from must be affirmed, with costs.
Ingraham, P. J., Laughlin and Dowling, JJ., concurred; McLaughlin, J., dissented.
Judgment affirmed, with costs;