Emil Lecso and Mary Lecso, his wife, executed a single instrument as their joint will on May 25, 1948. Emil died on January 15, 1950. The will was probated as to him on February 7, 1950, and plaintiff, Louis F. Sellyei, the executor therein named, duly qualified. Plaintiff's final account was approved and allowed, and distribution was made to Mary as provided in the will. On March 20, 1951 Mary executed another will. She died on April 2, 1951. On April 13, 1951 the joint will was probated as to her, and letters testamentary issued to plaintiff. In April 1951 Mary's will of March 20, 1951 was offered for probate and was so admitted on January 25, 1952, letters issuing to Stephen Lecso, the executor therein named.
The second will of Mary, although faithful in the main to the plan of distribution in the joint will, contained certain departures. These proceedings were instituted upon the hypothesis that Emil and Mary had contracted for the disposition of their earthly belongings and the second will of Mary breached the agreement. The relief sought includes a judgment restraining Stephen Lecso from acting under the second will and the impression of a trust to satisfy the
asserted contract. Plaintiff was appointed trustee to conserve the assets pendente lite , without any expression as to the ultimate merits.
For the reasons hereinafter expressed I am satisfied a contract was made by Emil and Mary. As I see the situation, the most important question relates to the terms of that contract. Before discussing those matters, I think it well to deal with issues advanced with respect to the legality of such contracts and their enforcement.
The resisting defendants urge that a contract to make an irrevocable will is invalid. The argument begins with the premise that a will in its very nature is ambulatory and revocable and a provision in a will that it shall not be revoked is ineffectual. 1 Williams on Wills (1952 ed.), p. 6; Schouler on Wills (6 th ed.), sec. 326; Jarman on Wills (8 th ed. 1951), p. 27; Thompson on Wills (3 d ed. 1947), p. 28; 57 Am. Jur. Wills, sec. 458, p. 322. This premise is elementary and is not challenged by plaintiff. However, the proposition is confined to the subject of wills, as such, and does not militate against the validity or enforcement of a contract to make a specified disposition of property by will. The "power" to revoke a will or to execute another which infringes the contractual obligation is generally conceded, and the offending document will be admitted to probate; but the obligation will nonetheless be enforced, usually by a proceeding in the nature of specific performance whereby a trust is imposed upon the assets. Our cases uniformly recognize this principle, and at least where one party has died and the survivor has received the benefits in accordance with the agreement, its enforcement cannot now be questioned. Minogue v. Lipman , 25 N.J. Super. 376 (Ch. Div. 1953), affirmed 28 N.J. Super. 330 (App. Div. 1953); Sommers v. Zuck , 139 N.J. Eq. 245 (Ch. 1947); Trust Company of New Jersey v. Greenwood Cemetery , 21 N.J. Misc. 169 (Ch. 1943); Callahan v. Federal Trust Co. , 126 N.J. Eq. 311 (E. & A. 1939); Howells v. Martin , 101 N.J. Eq. 275 (E. & A. 1927); Tooker v. Vreeland , 92 N.J. Eq. 340 (Ch. 1921), affirmed on opinion below in
Tooker v. Maple , 93 N.J. Eq. 224 (E. & A. 1921); Deseumeur v. Rondel , 76 N.J. Eq. 394 (Ch. 1909); cf. Eggers v. Anderson , 63 N.J. Eq. 264 (E. & A. 1901). This view is shared elsewhere. 169 A.L.R. 9; 57 Am. Jur., Wills, sec. 694 et seq. Contracts to make testamentary dispositions, if otherwise unobjectionable, offend no discernible public policy.
Nor does the aspect of revocability of a will prevent that instrument itself from serving as the vehicle for the expression of the contract of the parties. As a will it remains revocable in the sense stated above. The same writing remains, notwithstanding unilateral revocation of its testamentary role, as the contract between the parties where such it is, or in a given case as evidence of the contract where the contract is claimed to have been separately made.
It is also urged that the joint will passed complete title to the survivor (for present purposes that proposition may be accepted) and hence the provisions for disposition upon the death of the survivor are inoperative by reason of the common law rule that a gift over, after a bequest or devise of full ownership, is ineffective. In this connection reliance is placed upon Fox v. Snow , 6 N.J. 12 (1950), in which our Supreme Court divided as to whether that rule should be continued, and which prompted the enactment of chapter 325 of the Laws of 1951, effective as to wills of persons dying after January 1, 1952. N.J.S.A. 3 A:3-16. That rule has never been understood to preclude contracts for mutual wills binding the survivor to a given disposition by will. This is evident from our own decisions which have recognized the validity of such contracts during the period when the common law rule referred to flourished with little or no criticism. With the serious question as to the soundness of that rule and the legislative expression just referred to, we would not be justified in extending the common law rule into an area which it never occupied, and this view in no sense is intended to suggest that retroactive effect is hereby given to the statute.
We come then to the question, Was there a contract, and if so, what were its terms? That a contract was made is thoroughly clear from ...