The opinion of the court was delivered by: MANSFIELD
MANSFIELD, District Judge.
In his own behalf and as Executor of the Estate of Albertha Wolcott (Albertha), David Wolcott (David) brings this diversity action demanding that Waldo Hutchins, Jr. (Hutchins) be made a constructive trustee for plaintiff's benefit of assets of the Estate of Augustus W. Hutchins (Testator) that defendant Hutchins now possesses or may in the future possess. David asserts that Hutchins procured the making and the execution of Testator's will by fraud and undue influence, and thereby deprived David and Albertha of benefits that they would have inherited under an earlier will executed by the Testator in 1921 (Complaint, Par. FOURTH).
Hutchins moves for summary judgment, Rule 56, F.R.Civ.P., on the ground that there is no genuine issue as to any material fact, and that he is entitled to judgment as a matter of law. Specifically, he asserts the defenses of res judicata, collateral estoppel and release as against David's individual claim. In addition, he asserts the Statute of Limitations as against the claims made by David individually and as executor.
The present proceeding appears to be one more step in an apparently endless saga generated by David's determination to prosecute a thoroughly, and repeatedly, discredited claim. The pertinent facts as revealed by the papers are as follows:
Neither David nor his deceased mother, Albertha, were blood relatives or descendants of the Testator or of any of the Testator's kin. Albertha Wolcott was the wife of Charles M. Wolcott (Charles), the Testator's nephew. David is her son by a prior marriage. Following Albertha's marriage to Charles, the latter adopted David, his stepson.
In 1921 the Testator made a will which, after certain specific bequests, divided his residuary estate into three parts, each of which was to be placed in a separate trust. The income from the first trust (one-half of the residuary estate) was to go to the Testator's wife and upon her death in specific shares to Julia (his sister), Julia II (his niece), Elizabeth (his niece) and Charles (his nephew). Upon Elizabeth's death, the trust was to terminate and the principal to go to the Testator's sister Julia, if living, and if not living, to her "descendants per stirpes and not per capita". The second trust (one-quarter of the residuary estate), which was measured by the lives of the Testator's nieces Elizabeth and Julia II, likewise gave the income in specified shares to the Testator's sister Julia, the two nieces and the nephew Charles, subject to the provision that upon the death of the survivor of Elizabeth and Julia II, the principal was to go to Testator's sister Julia, if living, and if not living, to her "descendants per stirpes and not per capita." The third trust (one-quarter of the residuary estate), which was measured by the lives of the Testator's nephew Waldo Hutchins, Jr. (defendant herein) and his niece Margaret, provided for distribution of shares of the income to Waldo, Sr., Waldo, Jr. and Margaret, and upon the death of the survivor of Margaret and Waldo, Jr., the trust would terminate and the principal go to Waldo, Sr., if living, and if not living, to his "descendants per stirpes and not per capita".
Thus, under the 1921 will no provision was made for Charles' wife, Albertha, or his adopted stepson, David; and although Charles was to be an income beneficiary of certain trusts, he would be entitled to principal only if he survived his mother Julia (Testator's sister) and his own two sisters, Elizabeth and Julia II, both of whom he predeceased.
Charles and Julia (the Testator's sister) predeceased the Testator, Charles dying in August 1942. In November, 1942, Testator made a will which, like his 1921 will, made no provision for Albertha or David, neither of whom were related to him by blood. After providing for various specific legacies and bequests, the 1942 will divided the residuary estate into eight shares. Four of the shares were placed in trust, the income to go to the Testator's widow for life, and, upon her death, the income from two shares to go to the Testator's niece Elizabeth for life, and the income from the remaining two shares to his other niece Julia II for life, with the remainders bequeathed over to their respective heirs and next of kin per stirpes. One of the remaining four shares of the residuary estate was placed in trust for each of the Testator's relatives for life: (1) his niece Elizabeth; (2) his niece Julia II; (3) his niece Margaret J. Hutchins; and (4) Waldo Hutchins, Jr., the remainders to go to their respective heirs and next of kin in equal shares per stirpes and not per capita.
The Testator died on February 19, 1948. His 1942 will was admitted to probate in the Surrogate's Court, New York County, and Letters Testamentary were issued on March 4, 1948 to Hutchins, the only executor qualifying who also became one of the trustees.
David and Albertha were notified of the probate proceedings and consulted counsel as to their interests in the estate. In a letter from her attorney, dated March 30, 1948 (Ex. 1, Berger Affidavit), Albertha was apprised of the existence of the 1921 will. On September 3, 1949, Albertha wrote to Hutchins:
"Not content with ignoring me in the Will, which you dictated, you even took away the $3000 a year Uncle Augustus was giving me, without even notifying me that it would no longer be forthcoming. This small amount was certainly no serious drain on a ten million dollar estate.
"A great injustice has been done me, and I am asking you, as Trustee, to rectify it." (Ex. 5, Berger Affidavit).
In his reply, Hutchins informed Albertha that the pattern of the will had been carefully laid out, and "was the product solely of his own deliberations." (Ex. 6, Berger Affidavit).
In 1948, David also had been informed of his status under the 1921 will. In re Hutchins, 23 Misc. 2d 565, 199 N.Y.S.2d 528, 530 (Surr.Ct.1960). After learning that he had no interest in the estate, David, through his attorneys, negotiated with Hutchins for a settlement of his claims. An agreement, dated April 29, 1948, was reached under which David received 600 ...