For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Schettino, J.
[54 NJ Page 232] Plaintiffs, Richard Klockner and Frances Klockner, the stepson and stepgranddaughter respectively of the late Edyth Klockner, brought suit to enforce an alleged oral contract between the deceased and the plaintiffs obligating the deceased to bequeath her estate to the plaintiffs in return for their services to her during her lifetime. Named as defendants were Harry Green, the executor of the estate, William Rhodes, Elizabeth Sylvania and Margaret Rhodes, the surviving next of kin of decedent, and Carolyn Wolf Field, a legatee under decedent's last executed will. (Carolyn Wolf Field did not answer nor appear in this case.)
At the conclusion of plaintiffs' case, the trial court granted defendants' motion to dismiss, holding that the proofs did not reveal the making of a contract because no offer and acceptance nor consideration had been established. The Appellate Division affirmed, holding that since there was no reliance by plaintiffs upon decedent's promise, the statute of frauds barred enforcement of that promise under N.J.S.A. 25:1-5. We granted certification. 53 N.J. 272 (1969).
Plaintiffs' uncontradicted proofs (as stated above, the motion to dismiss was granted before defendants introduced their case) established that Edyth Klockner, the deceased, and her husband, Richard Klockner's father, executed wills in favor of each other. Although her husband predeceased her, Edyth never revised her will. Accordingly, at her death, approximately three years later, her testamentary disposition had lapsed, and, but for this suit, the bulk of her estate would apparently pass by intestacy to her sole surviving relatives, defendants herein.
Richard Klockner's relationship with decedent, his stepmother, was like that of a natural child to his parent. He performed numerous services for her both before and after his father's death, doing as much and more than could be expected from even one's natural child. On an average, Richard attended to her needs once or twice a week from 1963 to her death in 1966.
Plaintiff, Frances Klockner (daughter of plaintiff, Richard Klockner), similarly spent much time with decedent, having a relationship more like that of mother and daughter than stepgrandmother and stepgranddaughter. Frances spent numerous nights with decedent when the latter felt fearful or alone, and also accompanied her on trips whenever she was needed.
In the early part of 1965 decedent approached Mr. Green, who had represented both her and her husband for many years, to discuss drawing a will. She indicated she wanted to leave her real property to Richard and her personal property to Frances. At Mr. Green's suggestion she prepared a
draft of a will, modeled after her earlier will, leaving the bulk of her estate to Richard and Frances. This draft was revised pursuant to suggestions from Mr. Green. Neither was ever executed, however.
Subsequently, in June 1965, decedent discussed with Richard the disposition of her estate. She informed him that she wanted to compensate him for being so helpful, and that if he would agree to continue to look after her and continue to let Frances visit her, she would leave the real property to him and the balance of the estate to Frances. Frances testified that the decedent discussed with her the understanding she had with Richard.
Decedent again contacted Mr. Green and informed him of the understanding she had with plaintiff regarding the disposition of her estate. Using decedent's second draft as a guide, Mr. Green redrafted her will and mailed it to decedent on November 24, 1965. Apparently because of decedent's belief that a will was a premonition of death, this draft remained unexecuted. Decedent became ill suddenly and died in February 1966, never having executed a will subsequent to the mutual will drawn with her husband in 1940.
Both the trial court and the Appellate Division held for defendants because, when questioned on cross-examination, both Richard and Frances testified that they would have continued to perform the services for decedent even if she had not made the promises to compensate them.
It is not disputed that a valid, enforceable contract can be made obligating a person to bequeath property in a specified manner. Accord Davison v. Davison, 13 N.J. Eq. 246 (Ch. 1861) (upholding a parol agreement to bequeath real estate in exchange for services); Johnson v. Hubbell, 10 N.J. Eq. 332 (Ch. 1855) (holding valid an oral agreement by a father to bequeath property in exchange for a ...