Lamberg v. Callahan

• Decision Date: 17 February 1972
• Docket Number: Docket 71-1916.,No. 463,463
• Citation: 455 F.2d 1213
• Parties: Jack LAMBERG, individually and as Executor under the Will of Ruth N. Wood, also known as Ruth I. Wood, et al., Plaintiffs-Appellants, v. Robert J. CALLAHAN, as Executor under the Will of Ernest Wood, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

455 F.2d 1213 (1972)

Jack LAMBERG, individually and as Executor under the Will of Ruth N. Wood, also known as Ruth I. Wood, et al., Plaintiffs-Appellants, v. Robert J. CALLAHAN, as Executor under the Will of Ernest Wood, et al., Defendants-Appellees.

No. 463, Docket 71-1916.

United States Court of Appeals, Second Circuit.

Argued January 25, 1972.

Decided February 17, 1972.

Sidney Vogel, Norwalk, Conn. (Vogel & Sigsway, Norwalk, Conn., on the brief), for plaintiffs-appellants.

John Keogh, Jr., Norwalk, Conn. (Keogh, Candee & Burkhart, Norwalk, Conn., on the brief), for defendants-appellees.

Before FRIENDLY, Chief Judge, and MOORE and MANSFIELD, Circuit Judges.

MANSFIELD, Circuit Judge:

In this diversity suit by the executor and beneficiaries of the estate of a wife, Ruth N. Wood ("Ruth"), against the executor and beneficiaries of the estate of her husband, Ernest Wood ("Ernest"), for breach of a contract to make mutual, reciprocal, irrevocable wills, plaintiffs appeal from a judgment in favor of defendants. For the reasons stated below we affirm.

The essential facts are undisputed.¹ On August 26, 1959, Ruth N. Wood, a resident of Norwalk, Conn., executed a will at the office of an attorney, Charles Belous, in Queens County, New York, which was witnessed by Belous, who has since died, and by one Madeline Weitz, who could not be located by the parties to this suit. Under her will she devised her estate to her husband, Ernest, or in the event that he predeceased her, to her brother, Dr. Arthur C. Hehn, after certain specific bequests to Jack Lamberg, who is named as executor, to the Lutheran Church of the Holy Trinity, to Emma Wood (Ernest's sister), and to Mrs. Maita Schulman. Paragraph "Fifth" of her will provided: "This will is made with the express understanding that my husband, Ernest Wood, will execute a similar, reciprocal will." Her will was valid under New York law, where two witnesses are sufficient, N.Y. Estates, Powers and Trusts Law § 3-2.1(a) (4) (McKinney 1967), and also in Connecticut, which requires three witnesses but has provided by statute that a will which is valid where executed will be effective "to pass any estate of the testator situated" in Connecticut. Conn.Gen.Stats.Ann. § 45-161 (West 1960).

A carbon copy of a purported reciprocal will bearing the same date and signed by Ernest Wood is in almost identical language. It provides that his estate is to go to his wife Ruth or if she should predecease him, to the same beneficiaries as are named in his wife's will and in the same amounts. Jack Lamberg is also named as executor of his estate. This will, however, was typed on a different machine than Ruth's will. It was found invalid by the district court — a finding not here challenged — for the reason that the two persons shown as witnessing it denied that they had done so.

On November 24, 1964, Ruth died and her will was later probated in the Probate Court for the District of Norwalk, Connecticut ("Probate Court"). On January 27, 1965, Ernest, who had succeeded to her estate in major part as the surviving joint owner of real property and in minor part under her will, executed a valid will, revoking all previous wills made by him and leaving his estate to his sister or, if she should predecease him, equally to Selina Merrell² and Clara F. Donovan, who are named as defendants in this action. The will named Robert J. Callahan, also a defendant, as executor.

On July 2, 1966, Ernest died and his 1965 will was admitted to probate in the Probate Court, Callahan qualifying as executor of his estate. Within the time prescribed by Connecticut law plaintiff Jack Lamberg, executor and beneficiary under Ruth's will, together with two other beneficiaries under her will, Dr. Hehn and Mrs. Schulman, presented to executor Callahan their claims to the effect that by reason of Ernest's breach of his contract to make a reciprocal and irrevocable will, Callahan should be directed to pay over his estate to them in accordance with the terms of the alleged obligation. When their claims were disallowed by Callahan, they instituted this action, invoking diversity jurisdiction, plaintiffs being residents of New York and Pennsylvania and defendants being residents of Connecticut.

The complaint alleges that on August 26, 1959, Ruth and Ernest made an agreement to execute mutual and reciprocal wills that would not be revoked, which were thereupon executed and that in breach of the agreement Ernest executed his January 27, 1965 will, thereby depriving plaintiffs of their rights as beneficiaries under the agreement. For relief plaintiffs seek a judgment declaring the 1965 will and the probate of it in the Probate Court to be null and void, an injunction against distribution of Ernest's estate to any persons other than those specified by the federal district court, an order directing all parties to consent to the probate of Ernest's purported August 26, 1959 will, the impressment of a constructive trust upon all assets of his estate, and $150,000 damages.

After raising sua sponte the question of whether the federal court had subject matter jurisdiction, Judge Timbers, then sitting as a district judge, was satisfied by the parties that by virtue of the claim for damages a "sufficient threshold showing of subject matter jurisdiction" had been made. See Memorandum Decision and Order dated January 3, 1969. The case was tried before Judge Lumbard of this Court, sitting by designation, who received the evidence submitted by the parties, most of which was not disputed. In an unpublished Memorandum Decision dated August 25, 1971, he decided that plaintiffs had failed to meet their burden of establishing by clear evidence the existence of a contract between Ruth and Ernest to make mutual wills which would not be revoked.

At the outset we face the question of whether, notwithstanding formal compliance with the conditions for federal jurisdiction under 28 U.S.C. § 1332(a) (diversity of citizenship and a matter in controversy exceeding $10,000) a federal court should assume jurisdiction over this action between executors and beneficiaries of two estates, each of which is in the custody of the state probate court. It has long been settled by the Supreme Court that federal equity jurisdiction will not be entertained over a suit to set aside a will or the probate of a will, or over similar disputes that would be incidental or ancillary to the in rem administration of an estate in state probate custody, since the effect would be to interfere with the performance of the probate court's functions and with its control over the property. See Sutton v. English, 246 U.S. 199, 205, 38 S.Ct. 254, 62 L.Ed. 664 (1918); Case of Broderick's Will, 88 U.S. 21 Wall. 503, 509, 22 L.Ed. 599 (1874). On the other hand, federal diversity jurisdiction may be assumed over a suit to enforce a claim in personam against an executor which will not disrupt the probate court's administration of the estate. Waterman v. Canal-Louisiana Bank & Trust Co., 215 U.S. 33, 43, 30 S.Ct. 10, 54 L.Ed. 80 (1909); Wright, Federal Courts § 25, at 85 (1970).

"It is true that a federal court has no jurisdiction to probate a will or administer an estate, the reason being that the equity jurisdiction conferred by the Judiciary Act of 1789, 1 Stat. 73, and § 24(1) of the Judicial Code, which is that of the English Court of Chancery in 1789, did not extend to probate matters. citations omitted But it has been established by a long series of decisions of this Court that federal courts of equity have jurisdiction to entertain suits `in favor of creditors, legatees and heirs\' and other claimants against a decedent\'s estate `to establish their claims\' so long as the federal court does not interfere with the probate proceedings or assume general jurisdiction of the probate or control of the property in the custody of the state court." Markham v. Allen, 326 U.S. 490, 494, 66 S.Ct. 296, 90 L.Ed. 256 (1946).

The standard for determining whether federal jurisdiction may be exercised is whether under state law the dispute would be cognizable only by the probate court. If so, the parties will be relegated to that court; but where the suit merely seeks to enforce a claim inter partes, enforceable in a state court of general jurisdiction, federal diversity jurisdiction will be assumed.

Although Connecticut courts do not appear to have passed upon the matter, at least in any recorded decision which we have been able to find, we are satisfied that plaintiffs' claim for damages and the impressment of a constructive trust upon the assets of Ernest's estate would be treated in Connecticut as one that must be prosecuted in its court of general jurisdiction (the Superior Court) rather than in its probate court.³ Almost all jurisdictions and authorities which have considered the matter have taken the view that breach of a contract to execute mutual wills does not prevent admission to probate of an otherwise valid subsequent will of a party charged with such a breach.⁴ As one commentator aptly put it

"Where . . . the survivor of co-testators revokes the mutual will and dies, leaving a subsequent will, the parties injured thereby cannot have him specifically compelled to devise as he agreed. No order of court can require the deceased to emerge from his tomb and execute the will and testament. That instrument which is, in point of time, the last will of the decedent, becomes, at least for purposes testamentary, the last will of the testator, to the exclusion of the mutual will." Partridge, The Revocability of Mutual or Reciprocal Wills, 77 U.Pa.L.Rev. 357 at 362 (1929).

Generally, claimants are relegated to an action for breach of contract that must be asserted in a court of general jurisdiction rather than in a probate court, which usually is a court of limited jurisdiction without the power to entertain such suits. See Atkinson, Wills § 48 at 218 (1953).

Such seems to be the case...