
    Corinne E. Glass et al., Respondents, v Giuseppe Battista, Also Known as Joseph Battista, et al., Appellants, et al., Defendants.
    Argued January 9, 1978;
    decided February 16, 1978
    
      POINTS OF COUNSEL
    
      Leonard A. Weiss, David Avstreih and Steven L. Kroleski
    
    for Giuseppe Battista, appellant.
    I. The 1966 instrument does not create a binding contractual obligation upon the survivor to dispose of his or her property in a specified manner after death. (Edson v Parsons, 155 NY 555; Wallace v Wallace, 216 NY 28; Matter of Zeh, 24 AD2d 983; Matter of Rosenblath, 146 Misc 424; Tutunjian v Vetzigian, 299 NY 315; Matter of Silverman, 43 Misc 2d 909; Matter of Tatkow, 80 Misc 2d 389; Matter of Aquilino, 53 Misc 2d 811; Oursler v Armstrong, 10 NY2d 385; Rubenstein v Mueller, 19 NY2d 228.) II. Plaintiffs-respondents failed on the trial level to prove that the 1966 instrument was duly executed by Michael in accordance with the applicable law as is required in the probating of any will. (Delafield v Parish, 25 NY 9; Matter of Eno, 196 App Div 131.) III. The trial court properly excluded the testimony of the draftsman of the 1966 instrument concerning the direct oral declarations of the testator’s intent. (Matter of Frederick, 41 Misc 2d 759, 22 AD2d 760; Matter of Smith, 254 NY 283; Matter of Constantine, 36 Misc 2d 711; Baumann v Steingester, 213 NY 328; Matter of Coughlin, 171 App Div 662, 220 NY 681; Matter of Jolson, 202 Misc 907; Matter of Hertzig, 177 Misc 598; Brown v Quintará, 177 NY 75.) IV. The court below erred in disregarding the third paragraph of the 1966 instrument, which clearly bequested the entire estate to the survivor, without exception or limitation.
    
      Harvey Felton and Joseph R. Zibelli for Joseph Battista and another as executors, appellants.
    The plaintiffs have failed toprove that the alleged joint will was executed by Michael De Filippo in the manner required by law. II. The trial court rightfully found that the alleged joint will does not constitute a binding and irrevocable contract between Michael and Rose De Filippo which restricts the disposition of property by the survivor. (Schweizer v Schweizer, 16 Misc 2d 592, 8 AD2d 946; Matter of Tatkow, 80 Misc 2d 389; Tutunjian v Vetzigian, 299 NY 315; Rich vMottek, 11 NY2d 90; Rastetter vHoenninger, 214 NY 66; Hermann v Ludwig, 229 NY 544; Matter of Elwyn, 285 App Div 91; Elwyn v Comeau, 8 Misc 2d 704; Rubenstein v Mueller, 47 Misc 2d 830,19 NY2d 228; Matter of Zeh, 24 AD2d 983,18 NY2d 900.) III. The trial court was correct in excluding the testimony of the draftsman of the will offered to establish the testator’s intent. (Matter of Frederick, 41 Misc 2d 759, 22 AD2d 760; Matter of Constantine, 36 Misc 2d 711; Matter of Morrison, 270 App Div 318; Matter of Coughlin, 171 App Div 662, 220 NY 681; Matter of Jolson, 202 Misc 907; Matter of Hertzig, 177 Misc 598; Brown v Quintard, 177 NY 75; Matter of Nelson, 268 NY 255.) IV. Even if the testimony of the draftsman was admissible, the court below erred in not remanding the case to the trial court to receive the testimony of the draftsman and enable defendants to cross-examine him as to such testimony.
    
      Sidney B. Silverman and Martin H Olesh for respondents.
    I. The joint will clearly and unambiguously embodied a contractual obligation imposing upon Michael the duty to dispose of his property at death to his daughters. (Tutunjian v Vetzigian, 299 NY 315; Hermann v Ludwig, 186 App Div 287, 229 NY 544; Morgan v Sanborn, 225 NY 454; Rubenstein v Mueller, 19 NY2d 228; Matter of Zeh, 24 AD2d 983, 18 NY2d 900; Mitchell v Van Allen, 75 App Div 297; Campbell v Beaumont, 91 NY 465; Matter of Ithaca Trust Co., 220 NY 437; Farmers’ Loan & Trust Co. v Kip, 192 NY 266.) II. The false issues raised by defendants are patently without merit. (Matter of Kindberg, 207 NY 220; Matter of Flasza, 57 Misc 2d 347; 
      Matter of Wade, 296 NY 244; Crouse v McVickar, 207 NY 213; A. A. Sutain, Ltd. v Montgomery Ward & Co., 22 AD2d 607, 17 NY2d 776; Jones v Jones, 137 NY 610; Matter of Langdon, 173 App Div 737; United States v Guanti, 421 F2d 792; Sherbicki v United States, 400 US 832.)
   OPINION OF THE COURT

Jasen, J.

On this appeal we are asked to determine whether the joint will of a husband and wife embodies an agreement by each of the testators to dispose of their respective estates in the manner specified in such will.

On March 18, 1966, Michael and Rose De Filippo, husband and wife, executed a joint reciprocal will which provided in part:

"THIRD: We give to the survivor of us all our property, both real and personal, wherever situated, whether owned by us jointly or severally.

"FOURTH: In the event we die simultaneously or under such circumstances that the evidence is not sufficient to determine the question of survivorship between us, or if either of us predeceases the other, then we jointly, mutually and individually give, devise and bequeath all of the rest, residue and remainder of our property, both real and personal and wheresoever situated, or to which we or either of us may be entitled at the time of our death, to our beloved children, CIARINO DeFILIPPO and TILLIE DeFILIPPO, who shall survive us, share and share alike, per stirpes and not per capita.”

Rose died on August 18, 1967, whereupon the 1966 instrument was admitted to probate. Pursuant to the terms of that will, Michael received Rose’s entire net estate.

On October 29, 1973, Michael opened two accounts at Chemical Bank, one in trust for his daughter Corinne (Ciarino) and the other in trust for his daughter Attilia (Tillie). In March, 1974, Michael removed Corinne and Attilia as beneficiaries, and left one of the accounts without a named beneficiary, while naming a friend, Giuseppe Battista, beneficiary of the other trust account.

After remarrying, Michael executed a second will on May 16, 1974, which upon his death was admitted to probate. This will included a clause expressly disinheriting his daughters "for reasons well known to them”, and provided that his estate be used principally to enlarge and refurbish a mausoleum located in Naples, Italy. The balance of the estate was to be divided among three nephews living in Italy.

It is established in this State that two persons may validly agree to dispose of their estates in a particular manner, and that such an agreement may find expression in a joint or mutual will. (Schwartz v Horn, 31 NY2d 275, 279; Rastetter v Hoenninger, 214 NY 66, 71-72.) Similarly beyond dispute is the principle that once a party to such a will has accepted the benefits granted him under that instrument, he, too, must adhere to its terms, for equity would be ill-served if, after one party had honored the agreement, the other party, having reaped its fruit, were at liberty to uproot it. (Morgan v Sanborn, 225 NY 454, 462; Hermann v Ludwig, 186 App Div 287, 297, affd 229 NY 544.)

While the applicable principles are clear and settled, there is still the question remaining as to whether the joint will embodies an agreement by each of the testators to dispose of their respective estates in the manner specified in such will. Many times we have noted that "The law does not view the renunciation of the right to alter or revoke a will as a casual matter” (Oursler v Armstrong, 10 NY2d 385, 389; Rubin v Irving Trust Co., 305 NY 288, 302), and in keeping with this principle we have declined to find joint or mutual wills contractually binding where such intent was left to conjecture. Thus, where a husband and wife executed mutual wills, rather than joint wills, which lacked contractual language, no contract was found. (10 NY2d 385, supra.) The same result was reached where the terms of a joint reciprocal will between a husband and wife devised all their property to the survivor "absolutely”, since an absolute grant is inimical to the divestiture of testamentary power. (Matter of Zeh, 24 AD2d 983, affd 18 NY2d 900.) By contrast, where extrinsic evidence revealed that the parties to a joint reciprocal will intended that it be a binding contract, we have given their intent effect. (Matter of Wiggins, 39 NY2d 791; Rubenstein v Mueller, 19 NY2d 228.)

In Tutunjian v Vetzigian (299 NY 315, 320), presented with a nearly identical issue, we stated: "While the mere execution of a joint reciprocal will may not suffice to establish such a contract [citations omitted], the language used by the testators in this case supplies evidence of such an underlying obligation. Thus, it is 'We’, not T * * *’ who make and publish 'this’ to be 'our’, not 'my’, last will and testament”. Such language "imports the joint disposition of the collective property of both, not the independent disposition by each of his own.” (Rastetter v Hoenninger, 214 NY, at p 72, supra.) The continued viability of this position was confirmed in Rich v Mottek (11 NY2d 90). In that case, confronting the same question posed today, we declared that "the terms of the will impose a clear obligation on the part of husband and wife to provide, at death, first for each other and then for their children.” (Rich v Mottek, 11 NY2d, at p 94, supra.)

The same factors which impelled this court in Rich v Mottek (11 NY2d 90, supra) to find a contract are present here. The joint reciprocal will was executed by a husband and wife, naming their children ultimate beneficiaries. A natural inference flows from the relationships of the parties that the joint will was intended to be obligatory. Furthermore, the use of plural pronouns in the joint will suggests that the testators’ dispositions were interdependent. These factors, taken together, reflect and establish an agreement between the testators to dispose of their respective estates in the manner specified in the jofiit will. Since the husband breached the agreement by executing a will other than that agreed upon, the Appellate Division properly compelled the husband’s executors to fulfill the agreed upon testamentary disposition.

In the view thus taken, it is unnecessary to consider the propriety of the Trial Judge’s ruling which excluded the testimony of the draftsman of the will offered by the children with respect to the intent of the testators at the time of the execution of the joint will. Although we find that a contract exists in this case, we hasten to add that using .other less ambiguous methods of executing a contract will obviate the need for surmise as to the parties’ intent. An express contract, apart from the joint will, or clear and unambiguous contractual language incorporated into the joint will would dispel all confusion, and ensure achievement of the desired result.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed.  