On appeal from Superior Court, Law Division, Hudson County.
Milmed, Morton I. Greenberg and Furman. The opinion of the court was delivered by Furman, J.A.D.
Plaintiffs appeal from the denial of their petition for discovery under R. 4:11. Defendant Eva Feifer cross-appeals from the denial of her motion for declaratory judgment.
Defendant Eva Feifer is the widow of Harry Feifer, who died in 1973. There were no children born to their marriage. Plaintiffs are Harry Feifer's children by a prior marriage. Defendant Jacobson was the draftsman of his will. According to the petition, plaintiffs "believe [Jacobson] to be more than 70 years of age." Defendant Behr is not identified in the petition except as someone who may have knowledge of facts necessary to prove the existence of a contract between Harry and Eva Feifer to make reciprocal wills. In their appellate brief plaintiffs assert that Behr was a witness of Harry Feifer's will and, like Jacobson, is "quite aged."
Plaintiffs allege in their petition that Harry and Eva Feifer made reciprocal wills simultaneously in 1966 pursuant to contract; that both Eva Feifer and Jacobson have failed to comply with plaintiffs' written and oral requests for a copy of Eva Feifer's simultaneous reciprocal will, and that they are apprehensive that, unless the testimony of the three defendants is perpetuated, it may be impossible for them, in the event of a will contest at the time of Eva Feifer's death, to prove a contract for reciprocal wills between Harry and Eva Feifer. Plaintiffs assert upon information and belief that the contract for reciprocal wills irrevocably bound the survivor, either Harry or Eva Feifer, to a testamentary disposition of his or her entire residuary estate to plaintiffs.
Plaintiffs rely upon several provisions of Harry Feifer's will:
This is a reciprocal Will with one simultaneously made by my wife, EVA BUCHMAN FEIFER, in favor of each other and is irrevocable unless so done by mutual consent of both of us in writing.
FIFTH: I make no provisions in this my Will, for the benefit of my children George Feifer and Leila Feifer Strum, secure in the knowledge that my dear wife, Eva Buchman Feifer, will provide for them in her Will.
SEVENTH: In the event my dear wife, Eva Buchman Feifer, fails to survive me, then and in such event, I direct my Executor to divide my estate into two equal parts and I give, devise and bequeath to my dear daughter, Leila Feifer Sturm, one of the two (2) equal parts, per stirpes.
If my daughter, Leila Feifer Sturm pre-deceases me, then the part that would have been hers, I give, devise and bequeath those parts to her child or children, per stirpes.
And to my dear son George Feifer, I give, devise and bequeath the remaining one half of my estate, per stirpes, and if my son, George Feifer pre-deceases me, then the share of my estate he would have been entitled to receive, I give, devise and bequeath to his child or children, per stirpes.
In moving for declaratory judgment, although without a counterclaim or other pleadings alleging a cause for action for such relief, defendant Eva Feifer sought a ruling from the court that she had no legal or equitable obligation ...