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Zabotinsky v. Conklin

Decided: March 18, 1966.


Matthews, J.s.c.


This action was instituted by plaintiff Harry Zabotinsky seeking specific performance of a written contract under which he and decedent Ann Shortell agreed to execute reciprocal, nonrevocable wills. The specific performance action was consolidated with an action pending in the Passaic County Court, Probate Division, which sought to probate a paper writing purported to be the last will of Ann Shortell.

The testimony adduced at trial raises little dispute as to the facts existing in this matter. For a period in excess of 20 years prior to the date of her death, plaintiff and decedent resided together as husband and wife, although plaintiff had a living wife from whom he was not divorced. Plaintiff's wife and he had separated voluntarily more than 20 years ago, and plaintiff states that he has not seen her since. During the month of August 1954 plaintiff purchased certain real property, consisting of a house and lot in the City of Paterson, Passaic County, and placed title thereof in decedent's name. Thereafter, during the month of April 1960, plaintiff contracted to purchase an additional parcel of property, also consisting of a house and lot, in the same municipality. On the occasion of this purchase he and decedent conferred with an

attorney-at-law of this State and, as a result of the conference, the attorney was directed, at the request of plaintiff and decedent, to arrange to have title to the premises then to be purchased taken in decedent's name, and further, to prepare reciprocal wills for plaintiff and decedent under which each would inherit the estate of the other without the possibility of the families of either interfering with the testamentary scheme. Pursuant to these instructions, counsel prepared substantially identical wills for plaintiff and decedent under which each devised and bequeathed all of his or her property to the survivor of the two. In addition, he prepared a written agreement of even date with the wills, whereby plaintiff and decedent each agreed to execute simultaneously therewith a will which would not be changed or altered during the life-time of the other without written consent. The wills and the contract were executed, and thereupon title to the second premises was taken in the name of the decedent.

On December 13, 1964 decedent was at the home of her sister, defendant Ceil Conklin, together with various other members of her family. Decedent was a widow and childless. During the course of the early evening decedent suddenly asked her sister for a piece of paper and a pen, declaring that she desired to write her will. There was only an envelope available. Taking the envelope, she wrote out a simple will on its face, and requested her niece and brother, who were present at the time, to witness the same. They did. This document is the paper that was offered for probate in the County Court action.

Approximately three hours after the execution of the writing just described, decedent was taken to Beth Israel Hospital in Passaic. She remained in the hospital until January 4, 1965, on which date she died, the cause of death stated on the death certificate being carcinoma of the bladder.

At her death decedent was possessed of some items of personal property and the two above-mentioned parcels of real property, known as 451 Eleventh Avenue and 447-449 Eleventh Avenue, Paterson.

Initially, plaintiff seeks to enjoin the probate of the paper writing of December 13, 1964, which is alleged to be the last will of Ann Shortell. In the alternative he demands, if the writing is admitted to probate, that a trust be impressed for his benefit upon the estate of the decedent, both real and personal, in enforcement of the afore-mentioned agreement.

The testimony of the witnesses to the writing, the date of which has been fixed as December 13, 1964, satisfies me that the formalities of our Wills Act were observed at the time of its execution and, accordingly, that the writing should be admitted to probate as the last will of Ann Shortell. The fact that plaintiff seeks to enforce an agreement providing for reciprocal wills entered into by decedent and him does not bar the probate of this document; nor is probate to be denied if plaintiff's contention is sustained. See Minogue v. Lipman, 28 N.J. Super. 330 (App. Div. 1953); Tooker v. Vreeland, 92 N.J. Eq. 340, 342 (Ch. 1921), affirmed sub nom. Tooker v. Maple, 93 N.J. Eq. 224 (E. & A. 1921).

In opposing the claim for specific performance defendant argues that the contract sought to be enforced is unenforceable because of lack of consideration, and further, that considering the relationship which existed between plaintiff and decedent during her lifetime, enforcement should be disallowed as contrary to public policy.

Dealing first with the contention of lack of consideration, it is apparent that the authorities relied upon by defendant are not applicable to the factual situation before this court. There is no dispute but that a contract under which the parties thereto obligated each other to make reciprocal wills must be supported by consideration. However, the cases such as White v. Risdon, 140 N.J. Eq. 613 (Ch. 1947); Young v. Young, 45 N.J. Eq. 27 (Ch. 1889), and Duvale v. Duvale, 54 N.J. Eq. 581 (Ch. 1896), and other cases referred to, do not involve factual ...

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