On June 27, 1940 Carl I. Dingfelder and Lina, his wife, executed a joint will, of which the introductory statement is as follows:
"We, CARL I. DINGFELDER and LINA DINGFELDER, of Bogota, New Jersey, do hereby make, publish and declare this to be our conjoint, mutual and irrevocable last Will and Testament, hereby revoking any and all testamentary dispositions by us, or either of us, either singly or jointly, at any time heretofore made."
Thereafter, by a codicil dated February 8, 1941, the plaintiff Bank of Bogota was named as executor of and trustee under the will. Briefly, the will provided that in the event of the death of Carl I. Dingfelder before that of Lina Dingfelder, his property was to be held in trust for the benefit of Lina during her lifetime. Upon the death of Lina and after the payment of two specific legacies, the residue of the estate was to be divided between named legatees or their issue.
Lina Dingfelder, on her part, provided that in the event of her death before that of Carl Dingfelder, her estate was to be held in trust for his benefit during his lifetime and upon his death was to be distributed in the same manner as had been provided by Carl.
Carl I. Dingfelder died on December 27, 1944. The will was probated and the plaintiff bank qualified as executor and
trustee. Lina Dingfelder died on December 7, 1952. During her lifetime she received the income from the trust set up by Carl in the 1940 will.
On October 10, 1952, Lina Dingfelder executed another will, in which she made a disposition of the residue of her estate different from that provided for in the 1940 will. The defendants Hess and Strauss were named as executors. The will was admitted to probate by the Surrogate of Bergen County. The defendants Hess and Strauss qualified as executors.
The plaintiff bank challenges the right of the defendants to administer the estate of Lina Dingfelder. It alleges that Carl I. Dingfelder and Lina Dingfelder made a legally binding contract to dispose of their respective estates, the terms of which contract were expressed in the will of June 27, 1940. Plaintiff seeks a judgment for the specific performance of that contract. It asks that a trust be impressed on the assets of Lina Dingfelder in the hands of the defendants, and that those assets be turned over to the plaintiff for administration.
The matter is before me on a motion to strike the complaint.
The legatees named in the two wills have joined the defendants in opposition to the demands of the plaintiff bank. With the exception of three minor children of the deceased beneficiary, all of the interested parties are of full age. They have reached an agreement for the settlement of the two estates which they desire to submit to this court for its approval.
It is well settled that this court will enforce a binding contract between two persons for the disposition of their respective estates. It will not interfere with the probate of the later will made in violation of the contract, but will enforce the contract against the estate of the survivor by impressing a trust upon the assets. Tooker v. Vreeland , 92 N.J. Eq. 340 (Ch. 1921), affirmed Tooker v. Maple , 93 N.J. Eq. ...