Cohen, Matter of

• Decision Date: 16 November 1992
• Citation: 187 A.D.2d 584,590 N.Y.S.2d 127
• Parties: In the Matter of Harry Alexander COHEN. Joel Goldberg, Respondent; Rae Cohen, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 127

590 N.Y.S.2d 127

187 A.D.2d 584

In the Matter of Harry Alexander COHEN Joel Goldberg, Respondent Rae Cohen, Appellant.

Supreme Court, Appellate Division,

Second Department.

Nov. 16, 1992.

Friedman & Friedman, Brooklyn (Farrell, Fritz, Caemmerer, Cleary, Barnosky & Armentano, P.C. [Louis L. Friedman, Colleen F. Carew, and John R. Morken], of counsel), for appellant.

Hatter, Donovan & McFaul, Mineola (John M. McFaul and Robert E. Trop, of counsel), for respondent.

Before MANGANO, P.J., and HARWOOD, BALLETTA, ROSENBLATT and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

In a probate proceeding, the decedent's widow, Rae Cohen, appeals from stated portions of a decree of the Surrogate's Court, Kings County (Ostrau, S.), dated February 13, 1991, which, inter alia, upon refusing to admit a will to probate, impressed a constructive trust upon the entire estate for the benefit of the beneficiaries named in the will, and directed disposition of the decedent's estate.

ORDERED that the decree is modified, on the law, by deleting the provision thereof which impressed a constructive trust upon the entire estate, and substituting therefor a provision impressing a constructive trust only on that portion of the decedent's estate which was not to pass to the decedent's widow outright under the will; as so modified, the decree is affirmed insofar as appealed from, with costs to the respondent, payable by the appellant personally.

The decedent and his wife, the appellant, executed mutual wills that were mirror images of each other. The couple was childless and wanted their assets to be shared equally by their respective relatives. Accordingly, simultaneous with the execution of the wills, they executed a written contract which prohibited either party from revoking or changing the wills in any way, without the written consent of the other, and they further provided that any attempt to do so would be ineffective as against the claims of the legatees of the mirror wills. The wife survived the decedent, whose will is the subject matter of this appeal. His will provided that a portion of his estate would be placed in trust with the income therefrom to the appellant for life, and the remainder to their relatives, who were enumerated in the will. The decedent bequeathed the rest of his estate to the appellant outright.

After the decedent's death, the appellant wife, alleging that she could not find the decedent's will, applied for and obtained letters of administration. As the sole distributee, she received the entire net estate. The petitioner Joel Goldberg (hereinafter the proponent), a coexecutor and cotrustee under the will, commenced the instant proceeding against her to revoke the letters of administration that were issued to her, and to admit to probate a conformed copy of the decedent's will or, alternatively, for specific performance of the aforementioned agreement.

The Surrogate's Court found that there was no proof to justify a finding that the wife had fraudulently destroyed the will, and that, therefore, the proponent's proof was insufficient to overcome the presumption of revocation that attaches to a lost or destroyed will (see, SCPA 1407). Accordingly, the court properly refused to admit to probate a conformed copy of the will. The Surrogate held, however, that the presumption of revocation does not apply to contracts precluding the revocation of a will, and that the revocation of a will does not extinguish the contractual obligations of the parties. Finding that at the time of the decedent's death, the agreement was still in force and had not been revoked, the Surrogate went on to rule that the parties, acting upon mutual consideration, clearly intended to bind themselves by contract to a certain disposition of their estate as specified in their mirror wills.

"As a will an instrument is revokable at pleasure, but as a contract, if supported by adequate consideration, it is enforceable in equity" (see, Rastetter v. Hoenninger, 214 N.Y. 66, 71, 108 N.E. 210). Thus, there is an important distinction between a contract obligating an individual to execute a reciprocal will and the will itself. A contract to make a testamentary provision is separate and distinct from the will itself, as the contract may be enforceable in equity even though, from a technical standpoint, it has no effect on the will's status as a legal instrument (see, 9D Rohan, NY Civ Prac, EPTL p 13-2.1[9]. Concisely stated, it is the contract, and not the will, which is irrevocable (see, 38 NY Jur 2d, Decedents' Estates, § 324; see also, Glass v. Battista, 43 N.Y.2d 620, 403 N.Y.S.2d 204, 374 N.E.2d 116). Thus, when two or more persons have executed a...