Schwartz v. Horn

• Decision Date: 02 November 1972
• Parties: , 290 N.E.2d 816 Joan SCHWARTZ, Appellant, v. Jeffrey HORN et al., Respondents, and 'John Doe' et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 613

338 N.Y.S.2d 613

31 N.Y.2d 275, 290 N.E.2d 816

Joan SCHWARTZ, Appellant, v. Jeffrey HORN et al., Respondents, and 'John Doe' et al., Defendants.

Court of Appeals of New York.

Nov. 2, 1972.

Joan Schwartz, appellant, pro se.

Louis Haimoff, Scarsdale, and George Stiefel, Brooklyn, for respondents.

FULD, Chief Judge.

This appeal, which involves mutual wills, calls upon us to decide whether the surviving testator, who had agreed to devise a specific piece of property to named beneficiaries, is privileged to make an Inter vivos gift of that same property to a third party.

On March 18, 1958, Alfred Horn and his wife Rose executed mutual wills. The former's will provided that it 'is drawn and made with the understanding that simultaneously herewith my wife, Rose Horn, will execute a Will upon terms and conditions therein set forth to the effect that this Will constitutes a part of a Mutual Will.' It also recited that '(b)y separate instrument simultaneously made herewith my wife and I have declared our intention that her Will executed simultaneously with my Will shall be deemed Mutual Wills which shall not be modified or altered without our respective written consents', and Mrs. Horn's will contained a similar provision. The 'instrument' referred to, which both signed, was an agreement not to change the provisions of their respective wills:

'In consideration of the execution by both parties of Wills affecting property owned by the respective parties hereto, the undersigned hereby declare it to be their intention that said Wills are Mutual Wills and that each of said Wills may not be changed or altered by the parties hereto except upon the written consent first obtained by the other party to this agreement.'

The will of each provided, in the main, that the property of each was to go to the other and upon the death of the survivor was to be divided equally between their son and daughter. ¹ Mrs. Horn's will expressly declared that, if her husband predeceased her, her 'personal property' and her 'home at 55 Mile Square Road, Yonkers, New York * * * shall be divided between my son, Herbert Horn, and my daughter, Joan M. Schwartz, share and share alike.' Her husband died in October of 1961, and his will was duly admitted to probate. Some 3 1/2 years later, in May 1965, the widow, despite her promise to devise her property on Mile Square Road to her daughter Joan and her son Herbert, conveyed it to the latter's child, her grandson Jeffrey. Rose Horn continued to live on that property until shortly before she died in August, 1969.

Soon after her mother's death, Joan commenced this action, pursuant to section 1501 of the Real Property Actions and Proceedings Law, Consol.Laws, c. 81, to obtain her share of the Mile Square Road premises under the mutual will, either by (1) an equitable conveyance, (2) the imposition of a constructive trust or (3) the appointment of a receiver. The defendants moved to dismiss the complaint on the ground that it failed to state a cause of action. It was and is their position that a testator's contract to make a particular Testamentary disposition of his property does not prevent him from making a different and inconsistent Inter vivos disposition of that property. The plaintiff, on the other hand, maintains that her mother bound herself by mutual will and contract to distribute the described property equally between her daughter (the plaintiff) and her son (one of the defendants) and, consequently, was not free, during her lifetime, to make a gift of her home to her grandson. ²

The court at Special Term dismissed the complaint, declaring that '(m)utual wills containing agreements to bequeath property to specified persons do not, barring certain exceptions, preclude Inter vivos disposition of such property.' The Appellate Division, 319 N.Y.S.2d 603, affirmed the resulting oder and our court granted leave to appeal.

We find no support, either in authority or reason, for the result reached below. Mrs. Horn expressly agreed to leave her Mile Square Road home to her son and daughter if she outlived her husband. He did predecease her and, having had the benefit of his bounty, she may not violate her contract with impunity. While her husband was still alive, she could, of course, have, with his written consent, revoked her will and made a different disposition of the property. However, 'after the agreement had been executed by (his) dying without making a different testamentary disposition of his property and after the acceptance by the other of the benefits of the agreement, it became obligatory upon (her).' (Rastetter v. Hoenninger, 214 N.Y. 66, 73, 108 N.E. 210, 211.) It follows, therefore, as we determined in Rastetter, that the widow could not, after her spouse's death, make 'a different testamentary disposition or a gift to defeat the purpose of the agreement' (214 N.Y., at p. 73, 108 N.E. at p. 211). Completely insupportable is the defendants' claim that Mrs. Horn did no more than obligate herself not to change or alter her will and that she was free, during her lifetime, to do as she desired with the Mile Square Road property.

There is, however, in the Rastetter opinion (214 N.Y., at pp. 73, 74, 108 N.E. 211, 212) a sentence or two--relied upon by the defendants--which, when taken out of context, seems to support their contention. Although the court wrote that each testator was at liberty to use his own property as he saw fit, the rest of its discussion makes it exceedingly clear that the surviving testator is not free to make an Inter vivos gift to defeat the agreement. The full statement reads in this way (214 N.Y., at p. 73, 108 N.E. at p. 211):

'Whilst importing a contract the instrument is testamentary in character and as to the property of each (testator) speaks from his death. 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 have revoked; but, After the agreement had been executed by one dying without making a different testamentary disposition of his property and after the acceptance by the other of the benefits of the agreement, it became obligatory upon the latter and enforceable in equity upon his death.' ³ (...