170 Misc. 759 | N.Y. Sup. Ct. | 1939
This is a motion to strike out, as legally insufficient, seven affirmative defenses contained in defendant’s second amended answer. The action is for specific performance of an alleged agreement, made on or about January 25, 1923, between one Robert R. Perkins, plaintiff’s uncle, and the latter’s wife, defendant’s testatrix, by the terms of which she agreed that if “ the said Robert R. Perkins would make a last will and testament leaving all of his property to her in the event he predeceased her, that she would make a last will and testament disposing of all of her property upon her death, one-third to her relatives and two-thirds to his relatives, in the manner more specifically set forth in ” the complaint, and “ that upon the death of either of said parties, that the survivor would not alter or change their last wills and testaments so as to make any other disposition of their property than as heretofore agreed to.” The complaint further alleges that
The first and second defenses allege the making of another will by Mrs. Perkins on June 15, 1923, and a codicil thereto on July 15, 1924, the revocation of all prior wills, and that if the agreement alleged in the complaint were ever in fact made the said will of June 15, 1923, constituted a breach, the Statute of Limitations commenced to run as of that day, and the action would be barred both under the ten-year and six-year limitations, respectively, inasmuch as the present action was commenced on May 3, 1938. The third and fourth defenses are to the same effect, except that they refer to still another will of Mrs. Perkins, alleged to have been made on July 28, 1926. The fifth and sixth defenses are likewise to the same effect, except that the breach which they allege commenced the running of the statute is the remarriage of Mrs. Perkins on May 19, 1927, followed by a claimed statutory revocation of all prior wills under the provisions of section 35 of the Decedent Estate Law. As to these defenses, however, defendant’s counsel are silent in their brief. The eighth defense is a substantial reiteration of the fifth, but is pleaded as a partial defense, irrespective, however, of the Statute of Limitations.
As to the first six defenses, the question to be determined is: When does the Statute of Limitations ■ begin to toll in an action of this character? Defendant contends that the statute began to run when his testatrix made her first non-conforming will on June 15, 1923, or when she made her second non-conforming will on July 28,1926, or, in any event, when she remarried on May 19,1927, and since more than ten years have elapsed between either one of these events and the commencement of this action on May 3, 1938, the first six defenses are good. Plaintiff maintains that the statute did not commence to run until the date of Mrs. Perkins’ death on December 21, 1937, and accordingly the said defenses are insufficient in law. , ^
Agreements similar to the one relied upon by plaintiff are recognized in this State (Morgan v. Sanborn, 225 N. Y. 454, 457), and have been enforced in the English courts as long ago as Goylmer v. Paddiston (2 Ventris, 353, decided in 1681).
When, therefore, upon her death on December 21, 1937, Mrs. Perkins failed to leave a last will and testament in accordance with the alleged agreement, she eo instante breached the said agieement, and plaintiff's right to relief thereupon accrued. Section 11 of the Civil Practice Act specifically provides: “ The periods of limitation * * * must be computed from the rime of the accruing of the right to relief by action.” No present right of action accrued
This view disposes of the first six defenses, excepting in so far as the fifth and sixth defenses relate to the eighth, which I shall now consider. In this connection defendant contends that by virtue of section 35 of the Decedent Estate Law Mrs. Perkins’ remarriage on May 19, 1927, operated as a statutory revocation of any prior will, including the conforming will of January, 1923. But it does not revoke a prior contract, and that is the basis of this action.
In 68 C. J. (§ 205, p. 587) it is said: “ That while the will is, like other wills, revoked by a subsequent marriage, the contract and the obligations arising therefrom continue valid and enforceable.” And in volume 69 of the same work (§ 2721, p. 1300) we read: “ That a mutual will is not revoked by the testator’s marriage, since his spouse’s rights attach only to the property beneficially owned by him, and not to property the legal title to which is in him, but which in equity belongs to another.”
The foregoing views require the granting of the motion to strike out the first six and the eighth defenses in defendant’s second amended answer as insufficient in law.