19 N.Y.2d 228 | NY | 1967
Lead Opinion
On October 23, 1961, Bertha and Conrad Mueller, after nearly a half century of marriage, executed a joint will providing’ that the estate of the first to die should go to the survivor, and on the survivor’s death their property should go to certain named beneficiaries. Nine months later in July of 1962, Bertha died and Conrad, pursuant to the joint will, received her entire net estate. The following month Mueller’s cousin, Martha Louise Mueller, the defendant herein, came to live with him, keeping house for him and, after he became ill, nursing him until his death in June, 1964. Conrad and Martha were married on March 12, 1963, and a week later on March 20 Conrad executed a new will naming his second wife sole beneficiary. This latter will has been admitted to probate.
On this appeal we are asked to determine the respective rights of the widow and the beneficiaries under the joint will to Mueller’s property, consisting of a house and lot acquired by Bertha and Conrad as tenants by the entirety in 1919, and a joint bank account in Conrad and Martha’s names, hut funded with money received by Conrad as the surviving owner of joint bank accounts in the names of Bertha and himself. There is unanimity of opinion in this court that Conrad’s final will was ineffective to alter the testamentary arrangement provided, for in the joint will, but we are divided over the question of whether this decedent’s earlier covenant Avith his first wife respecting the disposition to he made of their collective property on the death of the survivor should take precedence over the claim of the AvidoAv to a right of election to take against the earlier joint will.
On the other issue raised here, the effect of section 18 of the Decedent Estate Law on the right of the beneficiaries under the joint will to obtain specific enforcement of the covenant by Mueller contained in that will, we are of the opinion that the named beneficiaries under the joint will are entitled to prevail and a constructive trust in their favor was properly impressed upon the property received by the widow under the later will.
As to property received by Mueller under the joint will there can be no question but that upon his acceptance of such benefits under that instrument a trust' was impressed in favor of the beneficiaries to the extent expressed in Tutunjian. As to such property Mueller really took but an interest during his life with a power to use or otherwise dispose of principal, and the named beneficiaries took the interest which remained. Under such circumstances he had no property interest in these assets against which his widow’s right of election could operate.
The bulk of the property involved did not come to Mueller under the joint will. His interest in the real property, for example, commenced as a tenant by the entirety, ripening into sole ownership through his surviving his first wife. Similarly, his formal title to most of the personalty, consisting of savings accounts, derived from his surviving Bertha, with whom he had these joint accounts. In addition, it is not clear from the stipulated facts whether any of this jointly held property represented the independent estate of Bertha Mueller or whether, as is typical, it represented the jointly held fruits of Conrad’s labors outside the home aided by Bertha’s efforts within the home for their lifetime together. In any event we do not attempt a segregation of assets of husband and wife after a marriage of this duration. For all practical purposes, equity may content itself with considering the assets as their collective property, as if their estates had merged.
As to this collective property we feel that, on the death of one party to the joint will, the survivor was bound by the mutual
Contrary to the result which we here reach, the defendant urges that the widow’s right of election constitutes a limitation on the freedom of an individual to so incumber his estate. In support of this contention she directs our attention to a number of lower court cases involving marital separation agreements under which husbands covenanted to make a will leaving all or a portion of their property to the estranged wife or to their children and later remarried, leaving widows. In these cases the learned Surrogates correctly held that the former wife’s right to specific enforcement of the agreement must give way to the widow’s statutory right to a share in her husband’s estate. (Matter of Lewis, 4 Misc 2d 937; Matter of Erstein, 205 Misc. 924; Matter of Hoyt, 174 Misc. 512.) These cases are, however, distinguishable from the instant case and they present different equitable considerations. Separation agreements are usually attended by a present division of any jointly held property, and any provision for a future legacy is usually but an incident to the over-all settlement to be made with respect to the husband’s individual property and his obligation of support. In the case of the joint will, however, this instrument typically represents the sole attempt
Accordingly, the order of the Appellate Division affirming the judgment of Special Term should be affirmed, without costs.
The widow does not actually assert a right of election, as provided in section IS of the Decedent Estate Law, since under the later will, properly admitted to probate as the last will and testament of her husband, she takes all, though subject to the claims of the beneficiaries named in the joint will. Her argument is, rather, that the public policy finding expression in section 18, seeking- to guarantee the widow a distributive share in her husband’s estate, constitutes a limitation upon the right of a party to a joint will to bind himself to a testamentary arrangement which would not proAT.de a surviving spouse with such a share in his estate. Consequently, equity should decline to specifically enforce an otherwise binding obligation of the survivor under a joint will where such specific enforcement will frustrate this legislatively declared public policy.
Dissenting Opinion
(dissenting). In this action by a testamentary beneficiary for specific performance of an agreement between spouses for disposition of property by a joint will, the second and surviving wife pleads as an affirmative defense that she ‘ ‘ is entitled to a right of election pursuant to Section 18th of the Decedent Estate Law ”.
The judgment at Special Term and the order at the Appellate Division accorded no recognition to this asserted right of election; and the question is squarely presented by defendants-appellants on this appeal.
The ‘ ‘ personal right of election” of a surviving spouse to take his share of the estate “ as in intestacy ” is a right which cannot be impaired by any testamentary disposition effected by the other spouse.
The Commission to Investigate Defects in the Laws of Estates proposed the creation of a right of election in its report to the Legislature in 1928 (N. Y, Legis. Doc., 1930, No. 69) as a substitute for dower.
It reported that in line “ with the progressive policy of modern legislation, and in place of dower, the Commission recommends that there be substituted the right of the widow to take her intestate share against the provisions of the will ” (p. 87). The right of election was intended to end “ a glaring inconsistency in our law” (p. 86). The recommendation resulted in the enactment of the predecessor of present section 18 in 1929 (L. 1929, eh. 229).
It is rather clear that if the property concerning which the election of a surviving spouse is made is property in the estate
A different result cannot be made to occur because the will is executed in accordance with a good contract; or is executed before the marriage of the surviving spouse; or because of the accident of where or how the property transferred originated. The election is a “ personal right ” in a surviving spouse against all wills whenever and however executed.
The husband, after the death of the first wife in the present case, had complete title to the real property that had been held by the entirety and he had title to the proceeds of the joint bank accounts. He had a contractual obligation with his deceased wife to continue the joint will in effect; but there was certainly no resulting trust.
He could have given the property away or consumed it without any fiduciary accountability whatever to this plaintiff and plaintiff had no interest of ■ any kind enforcible against such property during his lifetime and at his death she had the benefit of a contract to make a will which is enforcible subject to the right of election of the surviving wife.
The basic legal effect of the execution of the superseding will is to be seen in Tutunjian v. Vetzigian (299 N. Y. 315). There it was held that when there is a breach by one of the parties of an agreement expressed in a joint will not to revoke it, the court will recognize the legal power of the testator to do this, but equity will compel his executor and beneficiaries “to perform the contract” of their decedent (299 N. Y. 315, 319, per Fuld, J.).
This means in legal theory that the property is deemed in the estate and subject to testamentary disposition, but the court will control the disposition posthumously. It follows that the surviving spouse’s right of election to an intestate share is assertable against the estate and against any will which would cut her off.
Such an interpretation, indeed, was addressed by Surrogate Foley to section 18 in Matter of Hoyt (174 Misc. 512 [1940]). Surrogate Foley had been chairman of the Commission on Estates which had proposed the enactment of the “personal right of election ” in substitution for dower.
There was in that case, accordingly, a binding contract to make a will, and a will was made in pursuance of it. Yet the agreement and the will were compelled to yield to the right of the second wife as surviving spouse to elect to take as in intestacy. The superficial factual differences between that case and this one do not affect the common principle which unifies them. Matter of Erstein (205 Misc. 924) and Matter of Lewis (4 Misc 2d 937) are consistent and based on Hoyt.
When it comes to a matter of the equities involved in this equitable action, the surviving spouse who seeks to make the election which the statute gives her is possessed of superior equitable rights. She married decedent on March 12, 1963. In August, within six months of this marriage, decedent became ill of cancer from which he died 10 months later, on June 28, 1964.
It is expressly stipulated that the surviving spouse “ took care of him and nursed him until he died ”. As far as the record shows, the plaintiff, a niece of the first wife, did nothing for the testator, and it seems not unreasonable that the surviving widow’s share, at least, of the property which decedent had accumulated and which is not shown to have been derived individually from the first wife, go to the surviving spouse on her election. No one would suggest that, had dower been continued in New York, this joint will could have defeated the surviving wife’s dower and the right of election, as a statutory substitute for dower, is much the same thing.
The order should be modified to allow the appropriate scope to be given to the right of election of the surviving spouse.
Judges Van Voobhis, Scileppi, Keating and Breitel concur with Judge Bubke; Judge Bergan dissents in an opinion in which Chief Judge Fuld concurs.
Order affirmed.