The parties to this proceeding in the nature of an intermediate accounting are the executors of the will of the deceased father, Morris Levin. Herman is the son of the decedent by his first marriage. He files a voluntary account to which the others, Belle Burrill and Max Levin, children by decedent's second marriage, have filed objections, consisting of
It appears that on September 14, 1942, the wife, Yetta, executed her will by which she bequeathed to the children, Belle and Max, in equal shares, money she had on deposit in a savings bank, and the balance of her estate in trust for the life use of her husband after payment of premiums on his life insurance, the remainder to her children or the survivor of them. Two days later, on September 16, 1942, the husband, Morris, executed his will by which he bequeathed his entire estate to his wife, Yetta, or if predeceased then to their children Belle and Max in equal shares, expressly stating that no provision was being made for his son, Herman. Coincident with the execution of the will he also signed the following letter:
Thereafter in April, 1944, Yetta died. Her will mentioned above was admitted to probate, her husband qualifying as executor. Two years later and on May 4, 1946, the husband, Morris,
A lawyer, related to both the testator and his wife, Yetta, and who represented them both at the time they made their wills, was allowed to testify over objection to the circumstances under which Morris had signed the letter. This was for the purpose of establishing that Morris knew and understood that Yetta was not leaving him her entire estate as stated in the letter but that a substantial part of the cash was being given to Belle and Max. The Surrogate ruled in favor of the objectants and made a decree directing distribution to them to the exclusion of the son, Herman. On appeal, the Appellate Division, First Department, found the alleged agreement to be invalid and unenforcible for noncompliance with the Statute of Frauds (Personal Property Law, § 31, subd. 7), which question was argued in that court for the first time (although it had been raised in the trial court by timely objection to the admission of parol testimony) and accordingly modified the Surrogate's decree by directing distribution to all three children, in accordance with the will, and as so modified otherwise affirmed. The modification was on the law alone — it having ruled that parol testimony was inadmissible to explain the variance between the terms of the will made by Yetta and the letter signed by Morris — for without such testimony the difference could not be reconciled. We agree with this view. The letter evidencing the oral agreement uses clear and unambiguous language. It must be read as a whole. It first makes reference to the will executed under date of September 14th and expresses an understanding on the part of Morris that "you have bequeathed and devised to me the entire net income of your estate" — but which in fact did no such thing. By her will, Yetta had made an outright gift of a substantial cash deposit to the children, Belle and Max. The second paragraph, when considered alone might be deemed sufficient compliance for then parol testimony could be limited to identification of the documents. The parol testimony as used here went beyond a mere descriptive error (Patch v. White, 117 U.S. 210; Mansfield v. New York Central & H. R. R. R. Co., 102 N.Y. 205). It attempted
The order appealed from should be affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate.
Decedent's will divided his estate equally among his three children. Objectants, two of those children, sought in this accounting proceeding (brought by the third child, Herman, their coexecutor) to compel performance by the executor of their father's promise, made in the last two sentences of the letter quoted below, to leave all his property to the two objectants:
Yetta, to whom that letter was addressed and delivered, was decedent's wife and the mother of objectants (Herman was decedent's child by an earlier marriage). Yetta had made a will, on the date described in the letter (September 14, 1942) — but that will was not quite as described in the above letter. Actually, Yetta's will had not, as per the letter, left to her husband a life interest in her whole estate, but had included in that will a provision, not recited in the above letter, bequeathing certain bank accounts to objectants. In other words, the description, in decedent's letter to his wife, of his wife's previously made will, omitted all reference to the wife's bequest of the bank accounts to objectants, her two children.
The Appellate Division ruled against objectants. It decided that decedent's above-quoted letter to his wife did not comply with the Statute of Frauds (Personal Property Law, § 31, subds. 1, 7). The letter was, said the Appellate Division, unenforcible because, though it pertained to an agreement performance which was "not to be performed before the end of a lifetime" and, additionally, an agreement "to bequeath property" (Personal Property Law, § 31, subds. 1, 7; 276 App. Div. 739, 741), it was, so held the Appellate Division, not a complete memorandum of that agreement. There was, pointed out the Appellate Division, a variance between it (the letter) and the actual agreement between the parties. The Appellate Division held inadmissible the uncontradicted proof put before the Surrogate that the parties had, in truth, orally agreed to the actual terms of Yetta's will as written, and had orally agreed, at the same time, on decedent's promise as later clearly written into
We note first, that the proceeding was not tried on any Statute of Frauds theory. That law question was never mentioned by counsel before the Surrogate, nor is it alluded to in the Surrogate's opinion. Herman Levin's counsel defended against the objections on two grounds: first, that there was no consideration for decedent's promise since his wife's will gave him no more than he could obtain by an election under section 18 of the Decedent Estate Law; and, second, that any consideration, running from the wife for the husband's promise in the letter, failed when it turned out that the wife's will was not exactly as described in that letter. We will spend little time on either of those contentions. As to the first, the wife's promise and her signing of a testament containing bequests to the husband, clearly made out consideration for his promise to her. The second argument, that is, that the wife breached her agreement, falls if the Surrogate was right in taking the proof as to what the oral agreement was. As we read this record, there never was any objection to that testimony, any more than there ever was any pleading, statement or mention of the Statute of Frauds, in the Surrogate's Court. However, to face up to the questions of law argued to us, we will assume that the evidence point and the Statute of Frauds point are in the case.
The Statute of Frauds requires only that there be a written "memorandum" of a promise of this kind. It is too well settled to need discussion, that the underlying agreement may be oral so long as there be a written memorandum of the promise sought to be enforced, signed by the party against whom
All the members of this court are in agreement as to the two other matters argued before us (Herman's claims based on alleged services and loans) so we will not discuss them.
Since the Appellate Division modified on the facts as well as the law, there would have to be, in our view, a new trial as to objectants' claim only. We think the decree should be modified accordingly, with costs to abide the event.