In re Cook's Will

• Decision Date: 31 December 1926
• Citation: 244 N.Y. 63,154 N.E. 823
• Parties: In re COOK'S WILL.
• Court: New York Court of Appeals Court of Appeals

244 N.Y. 63

154 N.E. 823

In re COOK'S WILL.

Court of Appeals of New York.

Dec. 31, 1926.

In the matter of the probate of the last will and testament of Frances Julia Cook, deceased, in which Rachel Barber and others, as next of kin, filed objections contesting the validity of the will. Order of the surrogate directing that issues raised on petition to strike out contestants' answer be tried before the surrogate without a jury before, and separate from, the issues raised as to the factum of the will, was affirmed by the Appellate Division (217 App. Div. 342, 217 N. Y. S. 176), and contestants appeal. On certified questions (217 App. Div. 804, 217 N. Y. S. 907).

Order affirmed, and questions answered.

Appeal from Supreme Court, Appellate Division, Third department.

Leo E. Pratt, of Fair Haven, Vt., for appellant Rachel Barber.

Walter A. Fullerton, of Saratoga Springs, for appellants Robert E. Kirkham, William E. Kirkham, and Kathryn Russell.

Lawrence B. McKelvey, of Saratoga Springs, for Bank of America and George E. Knowlton.

John Ross Delafield, William S. Savage, Matthew C. Fleming and George N. Whittlesey, all of New York City, and Lawrence B. McKelvey, of Saratoga Springs, for American Female Guardian Society and Home for the Friendless.

CRANE, J.

Frances Julia Cook, an elderly widow of considerable wealth, desired to make a will disposing of her property to certain charities. She had no children, and her only heirs and next of kin were a sister, a niece, and two nephews. These relatives were of mature years, and apparently not on terms of great intimacy with Mrs. Cook. At least the relationship apparently did not draw them together with any frequency.

In preparing for the disposition of her property, she wrote to her niece, Kathryn E. Russell, in January of 1924, as follows:

‘Dear Katherine: In making my will, it was my intention to bequeath you something. After consideration, it occurred to me that it will give me greater pleasure to give it now, and you to receive it now, and in so doing I am asking you if you would be willing to sign and receipt an agreement, agreeing that in consideration of this gift now, that you agree that you will not at any time contest or join with others in contesting my will. The same conditions apply to your two (2) brothers, who must also sign such an agreement.

‘* * * Kindly let me have full names and addresses of your brothers.’

Kathryn's reply indicates that she knew very little of her aunt, or as she says, ‘about my father's people.’ She is glad to receive the gift, as her brothers and herself are trying to get a home for their respective families. Having failed to state, however, anything about contesting the will, another letter followed on February 8, 1924, written by G. E. Knowlton, on behalf of Mrs. Cook, wherein he states:

‘Dear Mrs. Russell: Mrs. Robert H. Cook has handed me your letter of January 21st in which you state that you would appreciate a gift from her, but you do not say that you will agree to refrain from contesting her will.

‘May I ask you to be good enough to advise Mrs. Cook as to your attitude in this matter.’

A few days afterwards ‘Niece Kathryn’ replied:

‘Dear Aunt Julia: I am sorry that I omitted to state in my letter that I would agree to the agreements mentioned in your letter. I both appreciate and agree to those conditions.’

Thereafter Kathryn signed and sent to Mrs. Cook the following agreement:

‘Dated March 5, 1924.

‘Received from Frances Julia Cook _____ dollars, as a gift from her, and in consideration of this gift I agree that I will not at any time contest, or join with others in contesting, her will.’

Kathryn Russell received from Mrs. Cook a check for $4,000, which she deposited and kept. She writes a long letter under date of March 18, 1924, expressing to her Aunt Julia her gratitude for the gift, and telling her of the use which she is to make of the money in purchasing a farm Similar correspondence was had with the nephews, each of whom received $4,000, and signed a like agreement. Mrs. Rachel Barber, the sister, living at Fair Haven, Vt., received $5,000, and she also signed an agreement not to contest, or join with others in contesting, Mrs. Cook's will. The other correspondence between the parties need not be mentioned.

By her last will and testament, dated the 14th day of February, 1924, Frances Julia Cook, describing herself as the widow of Robert H. Cook, of the town of Whitehall, New York state, gave $20,000 to the American Museum of Natural History of the city of New York, and the remainder of her estate to the American Female Guardian Society and Home for the Friendless, located at Woodycrest avenue in the city of New York. The testatrix died June 10, 1925, and her will has been offered for probate in the Surrogate's Court of Washington county.

Having received the advances or gifts under the circumstances above detailed, can these heirs and next of kin of Mrs. Cook now contest her will? They have sought to do so, alleging that she was incompetent to make a will and that the same was procured by fraud and undue influence.

[1] None is authorized to contest the probate of a will except those interested in the estate, the heirs and next of kin. Even an heir or a next of kin may become as a stranger to the estate by having assigned all his interest therein, or having released all his rights or prospective interests, to the person making the will. At common law, a mere possibility could not be assigned. Equity, however, recognized the force of such agreements or releases, and, when fairly made for an adequate consideration, gave them effect and validity. The release of an expectancy on the condition of an advance being made was held to be binding and enforceable in Eissler v. Hoppel, 158 Ind. 82, 62 N. E. 692. Likewise an agreement made on consideration never to assert any right, title, or interestas heirs in certain property, and not to contest in any manner or to any extent whatever the last will and testament, has been given force by the courts of California in Matter of Garcelon's Estate, 104 Cal. 570, 38 P. 414,32 L. R. A. 595, 43 Am. St. Rep. 134. To the same effect is Gore v. Howard, 94 Tenn. 577, 30 S. W. 730. In Brands v. De Witt, 44 N. J. Eq. 545, 10 A. 181,14 A. 894,6 Am. St. Rep. 909, it was held that an heir at law may for a sufficient consideration release to his father the share which he might have at the parent's death in his estate real or personal so that he will be thereafter estopped from establishing any claim thereto as one of his heirs at law or next of kin. Agreements not to contest by reason of advances made or property turned over may be regarded as agreements to make no claim to any share of the estate. Havens v. Thompson, 26 N. J. Eq. 383;Quarles v. Quarles, 4 Mass. 680;Kenney v. Tucker, 8 Mass. 143. The only case I find in this state touching on this point is Kinyon v. Kinyon, 72 Hun, 452, 25 N. Y. S. 225.

[2] There has never been any question about the agreements made between the heirs or next of kin and the representatives of an estate after the death of a testator regarding settlements and compromises. These have always been held to be good, when made in good faith, and not against public policy. Moss v. Cohen, 158 N. Y. 240, 53 N. E. 8;Seaman v. Colley, 178 Mass. 478, 59 N. E. 1017;Grochowski v. Grochowski, 77 Neb. 506, 109 N. W. 742,13 L. R. A. (N. S.) 484,15 Ann. Cas. 300;Hall v. Hall, 125 Ill. 95, 16 N. E. 896; 38 A. L. R. 753. This, however, is not such a case. We are not here dealing with agreements made after the death of the testator, but agreements made before the death of the testator regarding the future disposition to be made of an estate, and the claims of the parties thereto. Such agreements are akin to those implied in the taking of a legacy bequeathed upon the condition stated in the will that no contest shall be made. Such provisions have been recognized as good. Bradford v. Bradford, 19 Ohio St. 546,2 Am. Rep. 419; 2 Jarman on Wills, >02; 2 Redfield on Wills, “98; Smithsonian Institution v. Meech, 169 U. S. 398, 18 S. Ct. 396, 42 L. Ed. 793;Moran v. Moran, 144 Iowa, 451, 123 N. W. 202,30 L. R. A. (N. S.) 898. But see Matter of Arrowsmith, 162 App. Div. 623, 147 N. Y. S. 1016, and South Norwalk Trust Co. v. St. John, 92 Conn. 168, 101 A. 961, Ann. Cas. 1918E, 1090.

[3][4] Do the letters and the papers signed by Mrs. Cook's relatives, wherein they state that they will not contest her will upon the receipt of an advanced payment, in reality amount to agreements that they will make no further claim upon her estate? We think they do. No form of words is necessary to make out such an agreement. The intention must be gathered from all the...