
    Lulu F. Adams, Respondent, v. Edith Hoyt Swift, Appellant, Impleaded with Frances A. Francis and Others, Defendants.
    
      (Supreme Court, Appellate Division, First Department,
    
    
      November 19, 1915.)
    Will—Action to establish will under section 1861, Code of Civil Procedure—Husband and wife—Ante-nuptial agreement to leave PROPERTY TO WIFE BY WILL—JURISDICTION-SURROGATE’S COURT—POWERS OF COURT OF EQUITY—STATUTE OF FRAUDS-—EXECUTION OF PAROL ANTE-NUPTIAL AGREEMENT.
    Where a woman marries on the faith of her husband’s oral ante-nuptial -agreement to make a will in her favor, which promise he subsequently fulfilled, but afterwards made other testamentary disposition of his property, the Surrogate’s Court has no jurisdiction to determine the validity of the ante-nuptial agreement or to enforce .its provisions.
    But the Supreme Court under its inherent equitable powers has jurisdiction to enforce such ante-nuptial agreement in an action brought under section 1861 of the Code of Civil Procedure to procure a judgment establishing the will made pursuant to said agreement, the same being inaccessible owing to the fact that it has been1 probated in a foreign State, and in such suit the court may enjoin the probate of the subsequent will.
    A person may bind himself by contract to make a particular disposition of his property by will, and such contract, if validly made upon a Sufficient consideration, will be enforced in equity.
    Although such parol ante-nuptial agreement is unenforcible while executory, the Statute of Frauds' does not apply where, after the marriage, the promisor actually executed the contract by making a wilt "pursuant to its terms.
    McLaughlin, J., dissented.
    Appeal by the defendant, Edith Hoyt Swift, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of June, 1915, upon the decision of the court after a trial at the New York Special Term.
    The judgment established' a certain paper as and for the last will and testament of Albert A. Adams', deceased, and restrained the probate of a later paper purporting to be his will.
    
      Erost & Nieman, for the appellant.
    George C. Lay, for the respondent.
   Scott, J.

This is an action to probate a will under the provisions of section 1861 of the Code of Civil Procedure, which provides that an action to procure a judgment establishing a will may be maintained by any person interested in the establishment thereof, “ Where a will of real or personal property or both has been executed in such a manner and under such circumstances that it might., under the laws of the State, be admitted to probate in a Surrogate’s Court, but the original will is in another State or county under such circumstances that it cannot be obtained for that purpose; or. has been lost or destroyed by accident or design before it was duly proved and recorded within the State.”

The will sought to be established is that of Albert A. Adams, a resident of this State who died at Phoenix, Ariz., on November 24, 1913, in which will the plaintiff, his wife, is named as general legatee. The original will cannot be produced because it is now on file in the Superior Court of Maricopa County, Ariz., whence under the laws of Arizona it cannot be removed.

The defendants are the beneficiaries under a later will, and the question involved; is as to the validity of the later will. That question is purely one of law, there being no dispute as to any of the material facts.

At the time of. the making of the will now sought to be proved, Albert A. Adams was a resident of the State of New York, engaged as a traveling auditor by the Standard Oil Company. He was about sixty years of age and in poor health. He had no immediate family, his nearest relative being a sister.

On October 27, 190-9, he married the plaintiff, then about thirty years of age, who had been a school teacher. Four days later he executed the will now sought to be probated, by which he gave all of his estate to plaintiff, except a legacy of $1,000 given to a Miss Clarke.

It appears from the undisputed and unimpeached evidence of a wholly disinterested witness, as to statements made by Adams to the witness that this will was made pursuant to an ante-nuptial agreement between Adams and the plaintiff that if she shoxdd marry him he would make a will in her favor and leave all he had to her at his death. This witness, was one Charles 0. Scholder, the special agent of the Standard' Oil Company at Memphis, who had known Adams for several years but had had no acquaintance with plaintiff until the time of the marriage. He testified that Adams came into his room shortly before the date of the marriage and stated that he bad met plaintiff in Denver and had made a proposition of marriage to her, and that he wanted to open up this proposition to the witness, so that he should know all about the circumstances. The witness then proceeded: “ At which time he (Adams) stated! that he had agreed to give Miss Fowkes (the present plaintiff) all that he had at the time of his death, by will, and that his reason for doing this was that he was not in good- health, he was lonesome traveling around, and that he thought that possibly by having somebody with him, a helpmate, it would give him company and be able to look after1 him and thereby get some of his worries down, which no doubt had some effect on his health in his latter years.” He testified that on a later occasion Adams had reiterated his statement as to the agreement between plaintiff and himself, and that he was particular to have Mr. Scholder know all the circumstances “ so that if at any time it became necessary he wanted a witness both to the marriage and to the agreement.” After the marriage when Adams requested. Scholder to be a witness to his will, he said: 11 This is in fulfillment of my agreement with Mrs. Adams in which I agreed to will her —• give her all that I had1 by will, .except $1,000.” The will that was then executed and is now sought to be probated' did give plaintiff all of Adams’ property except $1,000.

So we have as established facts of the case a pre-nuptial agreement that if plaintiff would marry testator he would make a will by which he should leave her and she would receive at his death all of his property except $1,000; a fulfillment of the agreement by plaintiff on her part by entering into the marriage, and a fulfillment of the agreement by Adams on his part by the making of such a will as he had agreed to make. About two years' later, on August 32, 1911, Adams executed another will in which he recited that he had given his wife three-fourths of his property, and then gave what he had left to the appellant Edith Hoyt Smith, his niece, in trust for her mother for life, with reversion to herself. There is no question as to the factum of either will, or as to the valid execution of either under the laws of this State, nor is there any suggestion of undue influence, lack of testamentary capacity or any .of the other objections usually to be found in will contests. The earlier will, as has been said, cannot be produced and cannot, therefore, be admitted to- probate in the Surrogate’s- Court.

The later will has been offered for probate in Hew York county, but has not yet been admitted, its probate having been stayed by a temporary- injunction in this action, and being permanently enjoined, by the judgment appealed from.

The plaintiff’s claim is that the- ante-nuptial contract by Adams to give all of his projierty to his wife at his death, by the execution of a will to that effect, having been fully executed by the marriage and the subsequent making of the will became a valid, binding and executed contract; that the first will was irrevocable, and that any subsequent will was invalid for lack of power in the testator to execute it.

The appellant makes several objections to the judgment which deserve consideration. She does not question -the well-established. rule that it is possible for' a person- to bind himself, by contract, to leave his property in a particular way, and that if such a contract be validly made upon sufficient consideration it will be enforced in equity. She objects, however, that it cannot be enforced in this action. Her argument is that whatever claim plaintiff may have to all of the testator’s estate must rest ppon her contract with him, and not upon the will made in fulfillment of it; that the action in this court for the probate of the first will is merely substitutional for the ordinary probate proceedings in the Surrogate’s Court, and that, but for the circumstance that the first will cannot be produced, application for its probate would have to be made to the Surrogate’s Court, in which case that court would be obliged to refuse probate to the earlier will in favor of the later properly executed will, leaving plaintiff to sue the executors of that will in equity. It is. quite true that upon an application for probate the Surrogate’s Court would have no jurisdiction to try out the question of the making and effect of the ante-nuptial agreement, or to enforce its provisions. This is because the Surrogate’s Court is of limited' jurisdiction and has no general equity powers. With the Supreme Court it is different. It has general equity jurisdiction and is the court to which application would necessarily be made to' enforce plaintiff’s claim. Section 1861 of the Code of Civil Procedure while it extends the jurisdiction of the Supreme Court to the probating, under certain conditions, of wills does not purport to restrict, nor, in our opinion does- it operate to restrict the general jurisdiction of the court, which still remains a court of general equity jurisdiction. It would result in great and quite unnecessary circuity of action to drive plaintiff to two applications to the Supreme Court for the relief which can perfectly well be afforded in one, all the necessary parties being before the court, and all the essential facts provable before it. As was said by Geay, J., in Edson v. Parsons (155 N. Y. 555) : “The law permits a person to dispose of his property at his pleasure. He may make a valid agreement binding himself to make a particular testamentary disposition of his property, if it be a reasonable one, and he may validly renounce the power to revoke his will in the absence of fraud or deceit.” Assuming, for the purpose of discussing this particular objection, that the contract between Adams and his wife was, as she claims that it was, valid and executed by the making of the first will, we find no difficulty in holding that Adams thereby contracted away his right to revoke that will, and the second will, offered as a revocation, was ineffectual for that purpose. If it was it furnishes no obstacle to the probate of the earlier will, and the probate of the second will may properly be enjoined. These principles have been applied heretofore in well-considered cases. (Mutual Life Ins. Co. v. Holloday, Van Vorst, J., 13 Abb. N. C. 16; Le Brantz v. Conklin, Leventritt, J., 39 Misc. Rep. 715.) We consider, therefore, that the action was well brought, and that the relief afforded by the judgment was within the authority and jurisdiction of the court.

The point upon which the appellant argues most strenuously and upon which she apparently mainly relies is that, assuming the contract to have been made as testified to it was void under the Statute of Frauds of this State, and under a similar statute of Colorado where the agreement was made, in that it was made in consideration of marriage and was not expressed in writing. The plaintiff’s answer to this contention is that the statute applies to executory, and not to executed contracts, and that by the making of the first will the contract became fully executed.

It must be conceded, and the plaintiff does concede, that the mere fact of the marriage standing alone would not take the case out of the statute, and that even the reduction of the contract to writing after the marriage, with no other consideration than the marriage to support it, would not have avoided the bar of the statute. For these undisputed propositions the appellant cites ample authority. Neither of these cases, however, is before us. On. the contrary we have quite a different case. A pre-nuptial agreement that if plaintiff would marry the testator he would leave all his property to her by will; an acceptance of the proposal; a fulfillment of the agreement on plaintiffs part by marriage; a fulfillment of the agreement by testator by the making of such a will as he had agreed to make. Here then was an agreement entirely completed by both parties in so far as it was possible to complete it. Plaintiff on her part had, in fulfilling her agreement, taken an irrevocable step. It would be most unjust and inequitable to hold that the decedent having in form fulfilled his part of the agreement, could rescind his action and revoke his performance. The case does not differ in principle from de Hierapolis v. Reilly (44 App. Div. 22; affd., 168 N. Y. 585) and Kerker v. Levy (140 App. Div. 428; affd., 206 N. Y. 109). The case before us greatly resembles Mutual Life Ins. Co. v. Holloday (supra), which, although decided at Special Term, is entitled to much weight for the cogency of its reasoning, as well as for the high reputation of the justice who decided it. It arose out of a verbal contract between a husband and wife under which the husband conveyed to the wife, through a third party, a valuable piece of real estate, and she agreed that in case she died before her husband she would transmit the property to him by will. After the conveyance to her and in pursuance of her agreement she executed a will in favor of her husband. She predeceased her husband and remained seized and possessed of the property until her death. Shortly before she died she executed a will leaving" the property away from her husband. The claim in that case, as in this, was that under the circumstances the first will was irrevocable, and that the second will was, therefore, invalid. In the course of the opinion Van Vorst, J., used many expressions which are as apposite to this case as if written in it. He said: “ If the agreement was valid in law and in equity, it would be a mockery of justice to say that having "executed the will, she fully satisfied her part of the agreement, and was at liberty to revoke it the next day. The right secured by her husband was substantial, and could not be defeated by another will. The spirit and true intent of the agreement, under which she became seized of and enjoyed the estate, obliged. Mrs. Holloday to adhere thereafter to the terms of the devise in her husband’s favor. * * * If one of the contracting parties induces the other so to act, that if the contract be abandoned1 he cannot be restored to his former position, the contract must be considered as perfected in equity, and a refusal to complete- is in the nature of a fraud * * *. To defeat this conclusion, it cannot be insisted that a will is in its own nature ambulatory and revocable during 'the life of the testator. That statement, true in itself, can have no application to a case where the testator has obligated himself by a valid agreement founded upon a good consideration, which is wholly inconsistent with the making of another will, by which he should attempt to devise the property, the subject of the agreement-, to others than the person from whom the consideration proceeded, and to whom he was bound by the terms of the agreement to devise it. (Indeed, the doctrine of the revoeability of a' will amounts merely to this, that a will is ambulatory during the lifetime of- the testator, provided he has not bound himself to change it ’ (1 Jarman on Wills [5th Am. ed. by Bigelow], 18, note). * * * The absolute right to dispose of property as the testator may elect at any time during life, may be abridged or modified by express contract, as other rights often are. And the obligation not to- revoke or change a will, although negative, is as much involved in the agreement as the affirmative duty to devise in a certain way.”

The views thus expressed are well supported. (Sherman v. Scott, 27 Hun, 331, cited by Judge Van Vorst as Sherman v. Butts.)

I have not overlooked the very recent case of Wallace v. Wallace (216 N. Y. 28), in which the Court of Appeals had once more to consider the question of the irrevocability of mutual wills. To a certain extent that case is an authority in plaintiff’s favor, for it recognizes the well-established rule that it is possible for a person to make a valid and binding contract to dispose of his property in a certain way by will. It was held, as it has been in many earlier cases, that the evidence required to establish the fact of such a contract must be clear and convincing, and the case turned upon the insufficiency of the evidence relied upon to establish the contract sought to be enforced. Two witnesses testified as to statements made by or in the presence of the decedent, but the court found that neither of these witnesses was disinterested, and their evidence as to the declaration they had heard was much too inconclusive to warrant a finding of such a contract as was sought to be established.

In the principal case wre have, it is true, the evidence of but a single witness as to the declaration made by Adams concerning the agreement he had with plaintiff, but that witness is clearly disinterested, and no attempt is made to impeach him or to discredit his testimony. Indeed the appellant has argued her case upon the tacit assumption that the witness Scholder testified truly as to his conversation with the decedent. If that evidence be accepted as true it discloses much more than chance declarations made by Adams as to his agreement with plaintiff. It appears, as has already been said, that Adams expressly declared that he stated' to Scholder the terms of the contract with plaintiff “ so that if at any time it became necessary he wanted a witness both to the marriage and to the agreement.” It seems- to me that this testimony fulfills- the most, exacting requirements as to the quality of evidence necessary to establish the contract upon which plaintiff sues.

The judgment appealed from must be affirmed, with costs.

Ingraham, P. J., Laugi-ilin and Dowling, JJ., concurred; McLaughlin, J., dissented.

Judgment affirmed, with costs.  