Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
[36 NJSuper Page 213] Plaintiff sued to enforce an alleged oral agreement between the late Valentine Gidzela and Frances Gidzela, his wife and defendant herein, to make mutual wills by whose terms plaintiff would benefit. She appeals from a Chancery Division judgment in defendant's favor.
The complaint alleges that early in 1949 Gidzela and his wife entered into an agreement to make mutual and concurrent wills whereby each devised and bequeathed all his (her) property to the other if she (he) survived; that the agreement was made for plaintiff's benefit (just how is not explained), and on February 15 they executed wills pursuant thereto. The charge is then made that on or about August 7, 1953, while Gidzela was physically and mentally disabled, his wife procured the cancellation or destruction of the wills by artifice, deceit and fraud. Gidzela died August 19, 1953, and plaintiff claims defendant thereafter made one or more wills purporting to leave all her property to some person or persons other than plaintiff. She further alleges that defendant plans to transfer real estate of which she is seized, convert the proceeds to her own use and then give the money to persons other than plaintiff. Finally, she asserts that defendant intends shortly to depart the State. The complaint demands judgment declaring that defendant holds all her property in trust for plaintiff, and restraining her from making or attempting to make any disposition thereof except by devise and bequest to plaintiff.
The answer denies there was any agreement such as plaintiff describes. By way of counterclaim, defendant seeks recovery of the balance of a loan allegedly made to plaintiff. We are not concerned with the counterclaim; no appeal has been taken from the judgment entered thereon in defendant-counterclaimant's favor.
Among the matters stipulated by the parties at pretrial were: (a) there was no written agreement between defendant and her husband for the execution of mutual wills; (b) on February 18, 1949 they executed wills which had been drawn by defendant's present attorney; copies of the wills are no longer available; (c) on that date, and before actually drawing the wills, the attorney made a written memorandum of the details of the proposed testaments, which memorandum was admitted in evidence; (d) Gidzela died August 19, 1953; (e) following his death his will, dated August 7, 1953, was admitted to probate by the Hudson County Surrogate,
from which an appeal was taken; (f) by that will decedent left $50 each to plaintiff, her mother, husband and two children, and the residue to his wife, with the proviso that if she did not survive him the residue was to go to a Mrs. Lillian Granda; (g) since her husband's death defendant has made a will containing no provision for plaintiff.
As a result of information received through discovery proceedings plaintiff was permitted at pretrial conference to amend her complaint to allege that the agreement between Gidzela and his wife was that he would leave half his property to her if she survived him, and she in turn would leave half her property to plaintiff if her husband predeceased her. As will soon be observed, this allegation was no more accurate than the one set out in the original complaint.
The parties waived trial by jury. Plaintiff testified she was the niece of the late Valentine Gidzela, and named after him. He regarded her as a daughter. Her story was that on a visit to her home, just before Valentine's Day, February 14, 1949, her uncle told her, in the presence of her husband, her mother and defendant, that he and his wife had agreed on the will they were going to make; in her words, what was said was that "when my uncle died everything goes to his wife but when she dies half goes to my name and half goes to Mrs. Granda. And my aunt made [sic] the same will, that when she dies everything goes to my uncle but when he should die half goes to me and half to Mrs. Granda." (Mrs. Granda was a good friend of defendant.) Thereafter her uncle and aunt told her they had made the wills, but decedent never showed her a copy.
Plaintiff's only witness was her mother, decedent's sister. Her account of what was said on the occasion described by her daughter is:
"He said, 'We going to make will. We both going to make will. Frances [referring to his wife] is all right [?]; you want to make will?' She say 'Yes.' 'For half when I die this all goes to my wife; when she die it goes to me, and we both it goes half to Mrs. Granda and half to Mrs. Gromek, my daughter.'"
Sometime in March 1949 defendant told her, "We make the will and we are very happy, like I told you before," ...