155 Misc. 539 | N.Y. Sup. Ct. | 1935
Plaintiff is a son of one Allan C. Ralyea by the latter’s first wife. Allan C. Ralyea’s second wife was Agnace A. Ralyea. While married to her she and Ralyea executed a joint will and cotemporaneously executed an agreement under seal. Agnace A. Ralyea died and his third wife was Alberta J. Ralyea. During their coverture they executed a bond and mortgage of their house at 53 Potter avenue, Orchard Park, N. Y., to the Bank of Orchard Park which was assigned by the latter to Alberta J. Ralyea. Allan C. Ralyea also transferred all of his personal property to his then wife, the said Alberta J. Ralyea. Since that time both Allan C. Ralyea and his third wife, Alberta J. Ralyea, have died.
Plaintiff seeks to set aside the bond and mortgage and transfers of personal property by Allan C. Ralyea as in fraud or at least in contravention of the terms of the joint will and cotemporaneous agreement. In other words, plaintiff claims that by the terms of the joint will and its cotemporaneous agreement all of the property of both Allan C. Ralyea and his then wife, Agnace C. Ralyea, was to be held intact until the death of the survivor, who proved to be Allan C. Ralyea, and at his death become the property of the plaintiff and his brothers and sister named in the joint will.
The determination of the questions here involved requires a construction of the joint will and its cotemporaneous agreement. The joint will gives “ unto the survivor of us, all and any real and personal property either owned by us jointly or severally for his or her own use and benefit forever.” The next following article of the joint will provides: “ Upon the death of both of us in a common accident or upon the death of the survivor of us, all the property, real or personal, of the survivor is hereby given, devised and bequeathed to our children, Marjorie N. Eaton, George F. Crothers, Glenn A. Ralyea (plaintiff herein), Howard R. Ralyea and Fred D. Ralyea, share and share alike.” The court cannot give to the last named article the construction suggested by defendants’ counsel that its entire application be limited to a common accident in which both might be killed simultaneously or one be instantly killed and the other survive temporarily. On the other hand, the words of that article are not entirely clear. The words are not sufficiently definite in their meaning nor the expressions sufficiently imperative to show with equal force a clear intention to qualify or cut down the absolute gift of real and personal property expressed in the article of the will first above quoted. Were one concerned only with a construction of the joint will alone, then the plaintiff herein must fail. (Tillman v. Ogren, 227 N. Y. 495, at p. 505; Matter of Ithaca Trust Co., 220 id. 437, at p. 441; Banzer v. Banzer, 156 id. 429, at p. 435.)
The contract entered into between the husband, Allan C. Ralyea, and his then wife, Agnace A. Ralyea, as evidenced by the joint will and cotemporaneous agreement, may be enforced in equity. (Morgan v. Sanborn, 225 N. Y. 454, at p. 462.) The identical money in this instance can be traced and equity will impress a trust upon it. (Matter of Hicks, 170 N. Y. 195; Rastetter v. Hoenninger, 214 id. 67, at p. 74.)
Any attempt to apply all of the language of the opinion in the last above citation must prove abortive. It must be borne in
The contractual rights of Allan C. Ralyea and Agnace A. Ralyea became fixed upon the execution of the joint will and the cotemporaneous agreement. This action in equity is not affected by section 35 of the Decedent Estate Law concerning revocation of a will by marriage. The covenants which Allan C. Ralyea is in equity required to keep cannot be defeated by him by bis marriage to his third wife. She acquired a ready made family and during the life of her spouse the use of a competence accumulated during his respective unions with his first and second wives. With these assets her husband was charged with the liability not to bestow upon her by gift the property which a previous stepmother and mother had with her husband set aside for their children. The estate of the last wife has no legal, equitable or conscientious preference over the children of the first and second wives.
Prepare findings accordingly.
Judgment for plaintiff, with costs.