105 Misc. 675 | N.Y. Sup. Ct. | 1919
The plaintiffs are the only children of Margaret A. Coverly and William Coverly. The object of both the actions which they have brought is to establish a contract of mutual wills between their parents.
The burden of proof is upon the plaintiffs to ©stab-
Margaret A. Coverly and William Coverly had separate estates. On September 7, 1895, at the same time and place, both executed before the same witnesses wills which had been drawn by the same lawyer.
The disposing provisions of the will of Margaret A. Coverly were as follows:
“ First. I give, devise and bequeath all my estate, both real and personal, and wheresoever situated, absolutely to my said husband William Coverly, in case he shall survive me, to and for his own use forever.
“ Second. In case my said husband shall not survive me I dispose of my said estate as follows: 1. I bequeath the following legacies: To my sister Virginia P. Powers, the sum of one thousand dollars; to my son Daniel Fanshaw the sum of One thousand dollars. 2. All the rest, residue and remainder of my said estate I give, devise and bequeath to my daughters Lillias Doughlas Cooke and Norma McDonald Fischer to be divided equally between them, share and share alike. But should either of my said daughters not survive me then I give, devise and bequeath the share which such deceased daughter would have taken to her issue, if any, and failing such issue to my surviving daughter or her issue, such issue, in all cases, to take per stirpes and not per capita.”
William Coverly’s will of September 7, 1895, could not be found, and it was therefore not put in evidence upon the trial. It was, however, satisfactorily proved by the testimony of the lawyer who drew the wills that its wording was precisely like that of the wife’s will;
The husband of one of the plaintiffs testified that on the day before the execution of the wills Mr. Coverly, in a conversation at the dinner table, had stated in the presence of his wife “ that he had instructed his lawyers to draw the wills according to their mutual agreement and arrangement, leaving the property to each other, and in the event of their death to be equally divided between the two daughters.” While I do not question that Mr. Coverly made some such statement concerning the wills, nevertheless I do not believe that the witness after the lapse of twenty-three years can recall the exact language of Mr. Coverly. Moreover, the statement of Mr. Coverly as the witness recalls it is too indefinite to be helpful. In effect it was merely a statement by Mr. Coverly that he and his wife had agreed to make the wills which were made. This is far from a declaration by him that ho and his wife had agreed to make mutual wills in the sense which the plaintiffs contend, namely, that it was agreed that the survivor would adhere to the provision in his or her will giving his or her property to plaintiffs.
The determination of the case is therefore left entirely dependent on the inferences to be drawn from the language of the wills and the facts and circumstances which surrounded their making.
Margaret A. Coverly died on March 24, 1906. Her husband, William Coverly, survived her. He probated her will of September, 1895, and duly qualified as her executor. On August 28, 1909, he married the defend
The contract of mutual wills for which the plaintiffs contend is in substance that their parents, in consideration of the identical and cross- provisions in the two wills, had agreed with each other that the survivor would adhere to and carry out the provisions of his or her will giving to the plaintiffs practically all of his or her property, which would include not only the property that had been acquired by the survivor under the will of the deceased spouse, but also any property that the survivor had acquired from other sources.
Such a contract would deprive the father, he being the surviving parent, of the power of disposition of his property to others either by will or by gift in his lifetime. Power to dispose of property as one pleases is the principal incident of absolute ownership. The effect of such a contract would deprive the father of the absolute ownership of his property and make him to some extent a trustee thereof for the plaintiffs.
It seems to me that the language employed in the wills of Mr. and Mrs. Coverly in giving his or her property to the other forbids the inference of a contract between them limiting the ownership of the property bequeathed the survivor as contended by plaintiff. The language in both wills was precisely alike and no more apt words could have been employed in order to confer complete and full ownership. The wife’s will gives her property to her husband “ absolutely ” and “ to and for his own use for ever.” No refer
The wills seem to me to indicate that the parents intended that the survivor should have the power to revoke the bequests in his or her will to the plaintiffs, rather than that they had agreed, as plaintiffs contend, that such bequest should be irrevocable.
Judgment for defendants in each case dismissing the complaint on the merits, with costs.
Judgment for defendants in each case.