In re Keep — 17 N.Y. St. Rep. 812

Majority

p. 812

Matter of Charles A. Keep, Deceased.

(Surrogates Court, New York County,

filed August 14, 1888.)

Headnote

1. Will—Mutual wills—When not irrevocable.

Where testator and petitioner pursuant to an ante-nuptial agreement between them to execute mutual will, did so execute wills, Held, that the will so executed by decedent did not thereby become irrevocable nor prevent him from afterward executing a testamentary paper entirely variant, from or repugnant to it.

2. Agreement to execute mutual will—Remedy for failure of a testator to carry out agreement.

Any interest that the petitioner might have acquired by said instrument is. to be regarded, in view of the execution of the subsequent will, as resulting from an agreement between the parties and attaches to the estate of the decedent, as an equitable lien or trust, enforceable in a court of equity. It is not such an interest as would enable her to maintain proceedings to set aside the probate of a subsequent will.

John Vincent, for petitioner.

The only ground upon which the petitioner relies to maintain her petition to revoke the probate of the paper heretofore admitted to probate as the will of the decedent is the alleged existence of a previous will claimed te have been made by him simultaneously with one' executed by petitioner, in pursuance of an ante-nuptial agreement between them to execute mutual wills. The existence of such previous will, it is urged, made it, under the circumstances, irrecovocable, and disabled the testator from making any subsequent testamentary instrument. In disposing of this matter it is unnecessary to inquire whether or not the allegations of the petitioner respecting this alleged prior will, or her relationship to the decedent at the time of his decease-are true or not. Assuming them to be as she states, and. that such a will as she described was, under the circumstances alleged by her, executed by the decedent, such will did not thereby become as a will irrevocable or prevent him from afterward executing a testamentary paper entirely variant from or repugnant to it. Ex parte Day, 1 Bradf., 476 ; Schumaker v. Schmidt, 4 Am. Rep. (Ala.), 138; Hopper v. Reed, 32 Daily Register, No. 99, Oct. 26, 1887.

Any interest that the petitioner might have acquired by, this instrument, under which she claims, is to be regarded

p. 813

in view of the execution of the subsequent will, as resulting from a compact or agreement between the parties and attachees to the estate of the decedent as an equitable lien or trust enforceable in a court of equity, but is not such an interest as will enable her to maintain this proceeding. Ex parte Day, supra; Schumaker v. Schmidt, supra; Parsell v. Stryker, 41 N. Y., 487 ; Giles v. Talleyrand, 1 Demarest, 100-102; Hopper v. Reed, supra.

The petition is dismissed.