On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Antell, Joelson and McElroy. The opinion of the court was delivered by McElroy, J.A.D.
[193 NJSuper Page 665] Oral contracts between two testators to distribute their estates in an agreed manner have caused much litigation in this and other jurisdictions. See, e.g. Woll v. Dugas, 104 N.J. Super. 586, 587, 599 (Ch.Div.1969), aff'd 112 N.J. Super. 366 (App.Div.1970)
and the comment to UNIF.PROBATE CODE § 2-701, 8 U.L.A. 364 (1972). This is a case of that character.
Appellant is the executor of Carmen Cosman's 1982 will and appeals a judgment imposing a constructive trust on that estate in favor of respondents, legatees under her 1981 will. The trial court did so after finding that Cosman had agreed, upon making her earlier will, to leave five-sevenths of her estate to those legatees, the children of John E. Herbison. We reverse and enter judgment for defendant.
The question presented to us requires consideration of N.J.S.A. 3A:2A-19, L. 1977, c. 412, § 22, effective September 1, 1978.*fn1 That statute provides:
A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after September 1, 1978, can be established only by (1) provisions of a will stating material provisions of the contract; (2) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or (3) a writing signed by the decedent evidencing the contract. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.
Pursuant to R. 2:10-5 we elect to exercise our original jurisdiction. The facts are not complex. We find them to be as follows.
Carmen Cosman and John E. Herbison lived together for 22 years as residents of Fairfield, New Jersey. Herbison was married to another woman, the mother of the respondents, and was never divorced. On June 20, 1981 at a time when Cosman was facing major heart surgery she and Herbison executed wills. Cosman's will devised all of her property to Herbison and provided that should he predecease her the entire estate would be devised to and divided equally among her two sons, his four sons and his daughter. She named Herbison as her executor. In the event of his prior death or disqualification his son, John A. Herbison, was to serve as executor. Herbison's will, in turn, gave his estate to Cosman and in the event of her
prior death he bequeathed it to her sons and his own five children in equal shares. He named Cosman as his executrix and, alternatively, his son John A. Herbison. Neither will referred to the other nor did either refer to any mutual agreement to make these wills and not to revoke the devises each had made. The wills were made and acknowledged in the state of New York. They were apparently drawn by a New York lawyer who was perhaps unaware of the controlling New Jersey statute.
Cosman survived her operation. Indeed, she survived Herbison, who died October 18, 1981, and acquired his estate. On March 5, 1982 she executed a new will, revoking her prior will and leaving her entire estate to her two sons and a grandson. She nominated her son, George N. Cosman, as executor. Cosman died February 2, 1983 and her will was admitted to probate March 7, 1983.
On April 11, 1983 the five Herbison children filed a complaint against Cosman's estate which recited the foregoing facts and asserted that the wills executed by Cosman and Herbison on June 20, 1981 "were made pursuant to an understanding and agreement by and between the parties thereto that they would reciprocally execute their wills . . . and that the survivor of the two would devise and bequeath all of the property owned by said survivor to John A. Herbison, Paul Herbison, Tom Herbison, George Herbison, Cheryl Herbison Paueck, Richard N. Cosman and George N. Cosman." The complaint also alleged that "[c]ontrary to and in breach of the express agreement . . ." Cosman made a new will not in conformance with her will of June 20, 1981. Plaintiffs demanded a judgment decreeing that Cosman's executor hold her estate in trust for the beneficiaries ...