12 Mills Surr. 326 | New York County Courts | 1914
The issue involved in this action is as to whether or not the plaintiffs are still entitled to the interest in their mother’s estate given them by her will. Under the mother’s will the sons were not beneficiaries. Shortly after the mother’s death the children met at the residence of one of the defendants, read the will, and finally at the same meeting the will was destroyed. The next day, as claimed by the defendants, and within a few days, as claimed by the plaintiffs, the defendant Charles A. Klocke presented to the plaintiffs, and the plaintiffs signed, a paper wherein they “ agree to waive any and all wills made by their deceased mother and consent that her real and personal property be divided among her children share and share alike.”
Sometimes thereafter this action was commenced, and in the original complaint the plaintiffs claim only the interest in their mother’s estate to which they would be entitled as heirs. The defendants claim that the destruction of the will was in accordance with the wish of the plaintiffs, and that the paper referred to above was signed by the plaintiffs with full knowledge of its contents. The position of the plaintiffs is that at this meeting when the will was read the brothers were very angry because they had not been mentioned in the will; the plaintiffs were greatly depressed because of the recent death of their mother; that the defendants, especially the defendant Charles A. Klocke, is a man of much business experience, and that the brothers practically took into their own hands the matter of the destruction of the will, and that although the plaintiffs saw the will put into the stove, and did not attempt to stop its being burned, they did not consent to its destruction, and did not understand when it was destroyed that they were thereby giving up their interest under the will, but understood that the brothers wished the will destroyed so that it
The matter now comes before me on a motion by the plaintiffs to set aside the verdict because the direction of a verdict in favor of the plaintiffs was not granted at the trial, and because) the verdict is contrary to law. The plaintiffs claim that the destruction of the will, even though agreed to, did not take away from them their rights under the will, and that the paper subsequently signed by them did not take away such rights. They urge that there was no consideration to support an agreement to destroy the will, and no consideration to support this writing which they subsequently signed; that the writing does not purport to convey their interests in the real estate, and was not in form and manner of execution a paper which conveys real estate; that at the time this will was destroyed and this paper was signed their rights under the will had vested and they could not be divested of such rights except by an instrument appropriate to convey real estate. The specific proposition first argued by the counsel for plaintiffs is that the writing signed by
Plaintiffs also contend that even if a deed is not required the evidence does not warrant a finding that there was in this case a disclaimer by the plaintiffs. A disclaimer to be sufficient must be precise, explicit and evidenced by some solemn declaration. Webster v. Gilman, Fed. Cas. 17335.
The agreement which resulted in the destruction of the will
The fact that there can be a disclaimer by a devisee, and that when such disclaimer meets the requirements of the law title does not vest in the devisee under the will seems to be abundantly sustained by the authorities. “ But if the grantee once assents, and the title thereby becomes vested in him, he cannot, by any disclaimer, revest the estate in the grantor.. For if he could, the disclaimer would have the effect of a deed, which it cannot have; the object of the latter being to transfer property—of the former to prevent a transfer. But in a case of dissent, the heir cannot, by any disclaimer, prevent the estate from passing to him. It vests in him immediately upon the death of the ancestor; and no act of his is required to perfect his title. He cannot, by any act, cause the estate to remain in the ancestor; for the latter is incapable of holding it, after his death. Nor can he, by a disclaimer, transfer the estate to any other person, as the heir of the ancestor; for, as has already been observed, the object of a disclaimer is not to convey, but to prevent a conveyance. ® * * A devisee, however, stands in the same situation as a purchaser. If he dissents, the estate passes to the heir, in the same manner as if no will had been made. It is entirely optional with him to take or refuse the estate devised.” Watson v. Watson, 13 Conn. 83.
To the same effect, see Jarman Wills, 586; Page Wills, § 744; Schouler Wills & Administration, 537, § 489; 40 Cyc. 1893; 18 Am. & Eng. Ency. of Law, 743; 3 Washb. Real Prop. 402, § 2, subd. 4; 4 Kent’s Comm. 533, 534.
Some cases are cited by counsel for plaintiffs which require consideration.
In Minehan v. Hill, 144 App. Div. 854, the agreement before the court was between an heir and one who had taken care of deceased and expected to be a devisee. The agreement was between these persons and their agreement was to share equally in the property of the deceased whether or not there was a will. When the agreement was made neither knew whether or not there was a will. The person who expected to be a devisee sued to enforce this agreement. It was held that the agreement could be enforced, and that the mutual promises were a sufficient consideration. It thus appears that the heir was being sued. This case is cited because it appears that the matter of consideration was treated as the controlling fact in the case. This decision I do not regard as authority for the claim that a disclaimer by a devisee under a will must be supported by consideration.
Bunn v. Bartlett, 8 N. Y. Supp. 160, is a case where the will was made. An agreement was made by all the children who were devisees, who had not all received an equal amount under the will, which argeement in form and manner of execution was sufficient to make an equal division of the testator’s property among his heirs whether or not the will should be probated. The principal thing considered in the opinion of the court was the matter of consideration. It was held that there was sufficient consideration. Landon, J., Says: “All the heirs re-
There is another matter which is argued by counsel for defendant, and that is that by bringing this action and alleging in the original complaint that these plaintiffs were entitled to recover only as heirs-at-law the plaintiffs thereby made an effectual disclaimer of any rights under the will. This fact, whether or not it has the force claimed for it by defendants’ counsel, doubtless does tend to support the claim of the defendants that the destruction of the will and the signing of the paper thereafter were acts which were understood by plaintiffs.
It would have been more in accord with my feelings if I could have reached a different conclusion in this case, but after the verdict of the jury there is nothing left for the court but to follow the law, and that I have endeavored to do as I understand it.
The motion of the plaintiffs will, therefore, be denied.
Motion denied.