In the Matter of the Accounting of EDITH M. FRENCH, as Executrix of LYDIA M. BEKKER, Deceased, Respondent. HARRY BEKKER et al., Appellants; MARGARETTA GRANDIN, Respondent.
APPEALS from (1) an order of the Delaware County Surrogate's Court (TERRY, S.), entered May 28, 1953, dismissing, upon the pleadings and affidavits, objections filed to the account of petitioner as executrix, and (2) an order of the same court, entered August 5, 1953, denying a motion by the objectants to resettle said order.
Julian A. Ronan and Alfred J. Bedard for appellants.
Livingston S. Latham and Harry M. Walton, Jr., for executrix, respondent.
Sanford C. Nussenfeld for Margaretta Grandin, respondent.
Appellants seek a court determination that there was a contract between Lydia M. Bekker (hereinafter referred to as the decedent) and her deceased husband, Alexander Johannes Bekker, to make certain testamentary provisions, by virtue of which the decedent's estate should be impressed with a trust in their favor. In pursuing that desire they have appealed to this court from two orders of the Deleware County Surrogate's Court. The first dismissed appellants' answer and objections to the petition of respondent, Edith M. French, for settlement of her final account as executrix of decedent's will. The second denied a motion for a resettlement of the earlier order.
The appellants are brother and sister of Alexander Bekker. It is alleged in their answer and objections that on January 27, 1947, he and the decedent executed separate but similar wills. Alexander died December 7, 1949. His unchanged will was probated in Delaware County Surrogate's Court. On August 11, 1951, this decedent executed a new will, which has also been probated in that court. Decedent's last will followed, in general pattern, the one set up in the pleading of appellants as a copy of her will of January 27, 1947, but with some additions and
changes. Though appellants are also legatees under the probated will, they stand to receive less than they would have taken under the earlier one.
Appellants contend that the similar wills of January 27, 1947, were mutual and reciprocal, made in accord with an agreement between their brother and his wife to the end that, if the one predeceased the other, then and in that event the survivor's property should be distributed to the identical devisees and legatees named in each spouse's will. They assert that the death of Alexander, with his will unchanged, its probate and decedent's acceptance of benefits thereunder rendered the agreement binding and irrevocable as to her. Ergo, they are entitled to the same property from her estate that they would have taken under either of the identical wills.
They filed claims therefor, which decedent's executrix rejected. Subsequently, they filed the said answer and objections to the final accounting, praying for affirmative relief in accord with their theory here expressed. Respondents thereupon pleaded the Statute of Frauds as a defense.
Respondent executrix, treating the claim in the answer and objections as a counterclaim, moved for the dismissal of the objections under rules 109 and 110 of the Rules of Civil Practice or, in the alternative, for summary judgment under rule 113. The order and decision of the court below indicates that the dismissal was under subdivision 8, formerly subdivision 5 of rule 110. Appellants contend that a motion under rule 110 cannot be made after answer or reply. We think that, under the circumstances, the court below had power to entertain and pass on the motion.
The answer and objections allege an agreement that Alexander and the decedent would and did make reciprocal wills in favor of each other, the one in consideration of the other, so that, when the survivor should die, his or her property would be distributed to persons in each spouse's will named, who were identical with those named in the will of the other spouse. Demand was made for a bill of particulars giving the terms of the agreement, whether oral or written, and for copies of the written parts. The bill stated that ...