DiLorenzo v. Ciancio

• Decision Date: 18 December 1974
• Citation: 362 N.Y.S.2d 939,80 Misc.2d 193
• Parties: Daniel DiLORENZO, Individually and as executor under the Last Will and Testament of James DiLorenzo, Deceased and Marie Capilonga, also known as Marie Campilonga, Plaintiffs, v. Catherine CIANCIO, Defendant.
• Court: New York Supreme Court

Page 939

362 N.Y.S.2d 939

80 Misc.2d 193

Daniel DiLORENZO, Individually and as executor under the Last Will and Testament of James DiLorenzo Deceased and Marie Capilonga, also known as Marie Campilonga, Plaintiffs, v. Catherine CIANCIO, Defendant.

Supreme Court, Trial Term, Queens County, Part 15.

Dec. 18, 1974.

Vincent Forchelli, Long Island City, for plaintiffs by Vincent Forchelli and Charles N. Forchelli, Long Island City.

Zane & Zane, New York City, for defendant by Matthew Dollinger and Steven A. Weingarten, New York City.

HAROLD HYMAN, Justice.

James Di Lorenzo and Anna Di Lorenzo, husband and wife respectively, simultaneously executed mutual reciprocal wills on October 3, 1960.

Each of these mutual reciprocal wills devised and bequeathed to the survivor of them 'all of my property, * * *, of every kind, nature and description, whether real or personal * * *.' The wills further provided that in the event the husband predeceased the wife, or vice versa, that 'I hereby give, devise and bequeath all of my property aforesaid in equal share and portion to my beloved children, Daniel * * * Marie * * * and Catherine.'

On that very same day and simultaneously with their reciprocal mutual wills, they also entered into a separate written agreement which provided that:

'In consideration of one dollar ($1.00) and the signing of mutual reciprocal Wills on this 3rd day of October, 1960, and for other good and valuable considerations.

IT IS AGREED by the parties hereto that neither one shall in his or her lifetime change, alter, amend, destroy or mutilate the Wills executed on this day or make any Codicils changing said Wills without the consent of the other party in writing.

The contents of the Wills hereinbefore referred to are hereby made a part of this agreement and a copy of them are hereby annexed and initialed by the parties to this agreement.'

Anna Di Lorenzo was the first of the two to die. She died on March 14, 1969, survived by her husband James, who received the full share of her estate. Her estate in actuality was merely that which did not even pass through her will, namely, an undivided share of real property which they both owned as 'tenants by the entirety', together with the balance in a joint survivorship savings bank account.

Following Anna's death, James, her husband-survivor, continued to reside and occupy the first floor apartment of the two-family residence, which had been owned by them as 'tenants by the entirety' in the same manner as he and his wife together had occupied same for many, many years prior to her death. The defendant, one of the daughters of Anna and James and one of the named beneficiaries in both of the wills, continued to occupy the upper floor of said premises with her family as she also had been doing for many, many years prior to her mother's death.

As time went on after Anna's death, James--her surviving husband--began to show the inescapable ravages of age.

In May 1971 the defendant-daughter-beneficiary who had the wills and agreement and knew their terms, went to the office of an attorney, not the one who had prepared the reciprocal wills and contract. Said attorney testified that that he prepared the New York State Department of Taxation and Finance Estate Tax Form TT102 to obtain a release of tax lien concerning the real property on the estate of Anna; he drew the necessary form for James, the surviving husband, to sign; he filed the papers which were executed by James, and he ultimately caused the estate tax to be paid. He further testified he was representing James, although he gave the estate tax receipt, the release, and the deed from the prior owner conveying the real property to Anna and James (as tenants by the entirety) to the defendant; that thereafter, in February or March 1972, James again came to his office together with the defendant; she showed him copies of the reciprocal wills to which a copy of the written agreement which Anna and James had simultaneously executed with the reciprocal mutual wills was attached as provided for by said agreement; that James, then 86 years old, was very frail; that he spoke to James, who said his daughter wanted a deed, but that he, the attorney, refused to prepare any such conveyance because in his opinion it would have been in contravention of the written agreement; that he told James not to be fearful, since he observed that James was shaking; the defendant also requested the deed be prepared by him, but which he, as previously stated, refused to do.

The first attorney having refused the request to prepare a conveyance from James to this defendant, the defendant thereafter, one month later, went to another attorney with the identical request. Said attorney interpreted the contract contrary to that of the first attorney; he prepared the conveyance from James to defendant, but inserted a reservation therein providing for James to reside in and occupy the aforementioned real property free of rent or other charge for the remainder of his life.

It is as to that conveyance from James to the defendant and as to the transfer of the joint survivorship savings account funds that this action is addressed by the other children, the two remaining beneficiaries named in the said reciprocal mutual wills, who seek equitable relief establishing their shares in the fund in the real property by having the court declare the defendant the 'constructive trustee' thereof for their benefit.

The law is well settled, that, as a will an instrument is revocable at pleasure, but as a contract, if supported by an adequate consideration, it is enforceable in equity (Rastetter v. Hoenninger, 214 N.Y. 66, 71, 108 N.E. 210, 211). Each was at liberty during his lifetime to use his own as he saw fit, short of making a different testamentary disposition or a gift to defeat the purpose of the agreement, which was that upon his death each was to leave the property of which he was then possessed in the manner agreed upon. Very likely either during their joint lives might, upon notice to the other, and in this case with the other's written consent, have revoked; but after the agreement had been executed by the wife's dying without making a different testamentary disposition of her property and, after the acceptance by the husband of the benefits of the agreement, it became obligatory upon the latter and enforceable in equity upon his death. (Rastetter v. Hoenninger, Supra, 73, 108 N.E. 211.) Of course, the agreement had to be carried out honestly and in good faith. The husband could not, after accepting the benefits of an agreement, make a gift or conveyance or a testamentary disposition to defeat the purpose of or do violence to the agreement. What the parties disabled themselves from doing was the making of a disposition contrary to their 'reciprocal mutual wills and contract' after accepting the benefits of the agreement. (Rastetter v. Hoenninger, Supra.)

It is interesting to note that in Tutunjian v. Vetzigian, 299 N.Y. 315, 87 N.E.2d 275, the husband and wife, Mihran and Helen, respectively, entered into a written agreement whereby each agreed to leave his property to the other, and, on the same day, executed a joint will providing for such a disposition. In addition, the will also recited that, upon the death of one of them, 'then we or the survivor of us do bequeath and devise all our property' equally among certain named persons. (p. 318, 87 N.E.2d p. 276) Thirteen years later they executed another joint will, identical in plan and substance with the prior will, except for omitting named legatees who had died in the interim. The husband died two years later; whereupon the wife executed a new will contravening the terms of the two prior wills. She died shortly thereafter.

The action was brought by some of the legatees of the prior wills who were cut off by the wife's last will after the husband had died. The Court of Appeals held, at pages 319--320, 87 N.E.2d at page 277:

'* * * one so inclined may bind himself by a mutual or joint will to dispose of his estate in a specified and agreed manner. * * * If, in violation of the agreement so made, one of the parties to the joint will executes a new one, the latter is recognized as his last will and testament, but the courts will require its executor and beneficiaries 'to perform the contract' of their decedent. (Dufour v. Pereira, 1 Dick. 419, 2 Hargrave's (Judicial Arguments) p. 309). Indeed, to permit the one who survives to gain the benefits of the joint will and then to flout its provisions in violation of the promise made to the other 'would be a mockery of justice'. Mutual Life Ins. Co. v. Holloday, 13 Abb.N.C. 16, 24. The principle, supported by reason and equity, has been followed in this State, see Edson v. Parsons, 155 N.Y. 555, 50 N.E. 265; Rastetter v. Hoenninger, 214 N.Y. 66, 108 N.E. 210; Hermann v. Ludwig, 186 App.Div. 287, 174 N.Y.S.2d 469, affirmed 229 N.Y. 544, 129 N.E. 908 * * *.

In our view, the courts below were justified in finding that the parties had agreed not to revoke the 1972 will and to make the bequests therein provided. While the mere execution of a joint reciprocal will may not suffice to establish such a contract * * * the language used by the testators in this case supplies evidence of such an underlying obligation. * * *.

If there could be any doubt, it is removed by the 1929 contract and will. The 1929 contract expressly provided not only that Mihran and Helen 'agreed' to leave their property to each other but went on to recite that they had this day 'simultaneously with the execution of this contract' executed 'mutual wills.' The joint will thereupon executed contained the additional provisions for their respective relatives. Since that instrument must be read in the light of the contract pursuant to which it was drawn, the inference is strong that the testators at the time intended and agreed to provide not only for themselves but for their...