103 Misc. 167 | N.Y. Sup. Ct. | 1918
J. Huyler White and the defendant Susan White, his wife, made their separate wills at the same time. Later, one of the executors named in each of these wills having died, another was named in his place by codicils, each executed at the same time. The wills were made in February, 1915, and the codicils in May, 1916, and Mr. White died in July of the latter year. His will has been probated and the plaintiffs and the defendant Susan White have qualified as executors thereof. The plaintiffs in their capacity as executors and trustees. named in these wills allege in the complaint that these wills and codicils were made pursuant to a mutual verbal agreement between the parties by which each agreed to make and leave a last will and testament giving all his property to the survivor who should have nominally the entire ■ estate but that the same should be held in trust only for the purpose denominated in their mutual wills and codicils which was the support of the survivor and of the defendant Anna White and the support and education of the other defendants, infant grandchildren of the testators, and that said agreement should be irrevocable except by mutual consent. A decree is asked that it be determined that the wills were mutual and irrevocable; that the defendant Susan White be restrained from revoking or changing her will and from disposing of any part of the corpus of the estate she received through her husband’s will; that a receiver be appointed to take charge of the property, with authority to use so much as with the income will be necessary for her support and to devote an equi
The will of J. Huyler White after directing the payment of his debts continues, “ Second. I give, devise and bequeath unto my beloved wife, Susan White, all my property, both real and personal and wheresoever situate, to have and to hold the same absolutely and forever. Third. In the event that my said wife shall not survive me, then and in that case only, I dispose of my property, as follows, to wit: ” Then follow several bequests of small articles of personal property to certain of his grandchildren and to his daughter-in-law, the defendant Anna White, and the testator gives to the latter during her lifetime or until she remarries the house, with the contents, in which she was living and upon her decease to her children, his grandchildren. The remainder of his property he gives to his executors in trust to invest and to divide the income therefrom between his daughter-in-law, Anna White, and his grandchildren until his youngest grandchild shall reach the age of twenty-one years when the property is to be divided between his daughter-in-law, if living and unmarried, and his several grandchildren.
The will of Susan White was exactly similar to that of her husband except it contained cross provisions for his benefit similar to those expressed in his will for her. Since his death she has made other wills.
The right of plaintiffs to maintain this action is well challenged by the defendant Susan White. An “ executor ” is a person appointed to carry the will into effect after the testator’s death and to dispose of his estate according to its tenor. The executors of a will are to take it as written. They may not go outside of the will to determine the intention of the testa
The will of J. Huyler White is clear and positive in its terms. It gives all his estate, after providing for the payment of his debts, to his wife. In case she does not' survive him “ and in that case only ” he makes further disposition of his property. The plaintiffs as executors of that will are charged by the testator, his wife having survived him, with administering the estate by paying the debts of the testator and tuming over the remainder of the property less the expenses of administration to his wife, the defendant Susan White. Because of this situation, Susan White having survived her husband, the trust provisions in his will for the benefit of the defendant Anna White and the testator’s grandchildren are nugatory if the will alone is considered. The plaintiffs came into the possession of the property of the testator by virtue of the provisions of his will. In hostility to what he declared in his will, they now seek to make a different disposition of the property from that provided by him therein. If the testator made a contract with the defendant
The will of Susan White has not been proven. Until her death, the executors, the plaintiffs here, named in that will acquire no rights nor powers under it. As " said in Edson v. Parsons, 155 N. Y. 555, a will “ is a disposition of property, which neither can nor is supposed to take effect until after death.” A party by the mere making of a will, whatever contracts he might have made outside, does not give his executors by virtue of such will, before his will takes effect on his death, any rights under it. Until the will is probated, they are only executors in embryo. In any event they have no power to come into this court and ask that a will be probated during the maker’s life to protect the provisions of an oral contract which are in hostility to the terms of such will.
But if the conclusion contended for be erroneous and the plaintiffs may maintain the action, yet they must fail because the contract has not been proven within the authorities which govern in" such cases. The rule is well established that such contracts must be certain and definite and established by the plainest, most convincing and indisputable evidence. Wallace v. Wallace, 216 N. Y. 28; Edson v. Parsons, supra; Hamlin v. Stevens, 177 N. Y. 39; Taylor v. Higgs, 202 id. 65; Alexander Wills, §§ 85, 92.
No attempt has been made to prove the alleged contract by direct evidence. It is sought to establish it
Further, there are many facts presented by the evidence which go very far towards disproving the making of the alleged contract The terms of the will are very significant. The fact that there was an absolute devise from each testator to the other without limitation is strong evidence that there was no intention to limit the use and control of the property granted. When an intention is reduced to writing, either in the form of a will or a contract, there is always a strong implication of fact that the whole intention has been expressed and an implication still stronger that there is no agreement or intention contrary to that expressed. These wills were prepared by a lawyer of large experience and after much consideration. If an agreement such as is alleged was- made or referred to by these parties at the time the wills were presented by him for .signature and his opinion was asked, as he testified, in reference to the validity of such an agreement, why was it not inserted in the wills by him or a writing made expressing its terms 1 The fact that this was not done is evidence that, if there was any conversation between the parties at that time that the
Previous wills had been made by the parties each of which contained similar absolute provisions for the other in case of survivorship with provisions for the disposition of the property in the event of nonsurvival. Yet as to none of these wills has there been a suggestion that they were to be non-revocable or that they were otherwise than as stated in the language used in them.
The defendant Susan White was past seventy years of age at the time of the trial. As a'witness she appeared intelligent and as a woman of strong mind. She exhibited some evidences of forgetfulness under pressure of examination but .she left the abiding impression that her mind was clear and that she knew whereof she was speaking. In most positive terms she denied that there was an agreement that the wills were to be irrevocable. She explained with clearness many incidents about which testimony had been given on behalf of plaintiffs to establish the contract and to show that her mind was not clear and that she was incompetent to manage her affairs. Her competency is .supported by the uncontradicted evidence of two physicians.
When we consider all the evidence in this case relating to the lives of these two old people, their children and their grandchildren, the conclusion is unavoidable that the wills in question are most natural. These people had lived a long and happy married life. They undoubtedly had the utmost confidence in each other. Their children had passed away. Their grandchildren
On the merits, as well as upon the right of the plaintiffs to maintain the action, the findings should be in favor of the defendant Susan White.
Ordered accordingly.