For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor and Schettino. For affirmance -- Justices Burling and Hall. The opinion of the court was delivered by Proctor, J.
This suit was brought in the Superior Court, Chancery Division, by John Drewen, administrator c.t.a. of the estate of Doris Ryer Nixon, to enforce a contract executed by the plaintiff's decedent and her husband, Stanhope Wood Nixon, the defendant's decedent. On motion addressed to the complaint, the Chancery Division dismissed the administrator's suit, and the dismissal was affirmed by the Appellate Division. 55 N.J. Super. 331 (1959). Certification was granted. 30 N.J. 154 (1959).
The complaint sets forth the following allegations: Doris Ryer Nixon and Stanhope Wood Nixon were married in 1917. They had two children, Lewis and Blanche. On July 27, 1945 the husband and wife executed an agreement settling the rights of each in the other's property in contemplation of a divorce which was granted some months later. As part of that agreement, Stanhope Wood Nixon promised never to reduce the quantity or quality of the children's interests in his estate, as set forth in a will executed
on the same day as the agreement. By that will, each child was to receive about 30% of Nixon's estate in fee. If one child were to predecease the testator without leaving issue, the surviving child would take the other's share.
In 1948 Doris Ryer Nixon died testate in California. An executor was appointed there and undertook the administration of her estate. In 1951 Stanhope Wood Nixon executed a new will, which revoked his 1945 will, changed the out-right gifts to his children to life estates, with life estates over to surviving issue and, finally, remainders to charities. The will also contained an in terrorem clause which would void the bequests made to any one who should "directly or indirectly * * * call in question before any tribunal the provisions of any legacy, devise or provision herein, * * *." The daughter, Blanche, died in 1955 without issue, and the son, Lewis, survived and succeeded to her share under either of the father's wills. Stanhope Wood Nixon died in 1958, and his 1951 will was admitted to probate by the Surrogate of Middlesex County. The defendant is the executor and trustee under that will.
In 1958 the California executor of Doris Ryer Nixon's estate renounced in favor of the plaintiff, who obtained letters of administration c.t.a. from the Surrogate of Hudson County for the sole purpose of prosecuting this suit. Lewis Nixon was aware of the appointment of the plaintiff as administrator c.t.a., and of the institution of this suit. He has offered no objection, doubtless because of the in terrorem clause.
Plaintiff in this action seeks judgment declaring that the 1945 agreement is binding on the estate of Stanhope Wood Nixon; that his executor be directed to administer the estate and make distribution thereof in conformity with that agreement, and that the 1951 will be reformed accordingly. In essence, the plaintiff seeks specific performance of the 1945 agreement.
The Chancery Division dismissed the complaint on the ground that the administrator c.t.a. had no standing to
prosecute the suit, since no benefit could accrue from it to the estate. The Appellate Division affirmed, holding that "[a]s administrator with the will annexed, he has shown no right, power or duty to maintain this action." 55 N.J. Super. at page 336.
On this appeal plaintiff contends that his decedent, Doris Ryer Nixon, had in her lifetime a sufficient interest as promisee of the contract to enforce it, and that upon her death her right passed to her California executor and in turn to the plaintiff. On the other hand, the defendant contends that the only rights passing to her personal representatives are those whose enforcement would result in the realization of assets for distribution to the creditors and beneficiaries of her estate. It urges that the rights of Lewis Nixon belong to him as third party beneficiary of the 1945 contract, and not as beneficiary of the estate of Doris Ryer Nixon, and that under N.J.S. 2 A:15-2 he has the right to enforce the contract, and is capable of instituting the necessary suit himself. Furthermore, it argues that if Stanhope Wood Nixon breached the contract, he did so at his death, which was after the death of plaintiff's decedent; no cause of action accrued to plaintiff's decedent during her lifetime and therefore none passed to the plaintiff.
It is beyond question that a person may bind himself by contract to make a particular will. Epstein v. Fleck, 141 N.J. Eq. 486 (E. & A. 1948). It is equally clear that Lewis Nixon, the third party beneficiary of the 1945 contract, could have maintained a suit for specific performance. Di Girolamo v. Di Matteo, 108 N.J. Eq. 592 (Ch. 1931); Hendershot v. Hendershot, 135 N.J. Eq. 232 (Ch. 1944); Hufnagel v. Scholp, 138 N.J. Eq. 16 (Ch. 1946). Our courts have long recognized the right of a third party beneficiary to enforce a simple contract. Joslin v. New Jersey Car Spring Co., 36 N.J.L. 141 (Sup. Ct. 1873). N.J.S. 2 A:15-2 is ...