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March 20, 1985

FLORENCE CAMPBELL DANNHARDT, Plaintiff, against PAUL J. DONNELLY, JR., Executor of the Estate of Edith M. Campbell, Defendant

The opinion of the court was delivered by: GLASSER


GLASSER, United States District Judge

 This is one of the unusual cases in which the court's attention is directed to consideration of the probate exception to federal diversity jurisdiction, i.e., to the power of the federal courts to adjudicate disputes involving wills and estates. In this action, plaintiff Florence Campbell Dannhardt seeks to compel the specific performance of a joint will entered into between her brother and sister-in-law, Harry and Edith Campbell, and executed by them on December 21, 1963. Defendant Paul J. Donnelly, Jr., the executor of a subsequent will executed by Edith Campbell, has moved to dismiss the complaint for lack of subject matter jurisdiction, or alternatively, for this Court to abstain from adjudicating this dispute. Plaintiff has also moved for summary judgment. For the reasons that follow, defendant's motion is granted in part and denied in part. Insofar as plaintiff's remaining claim requests a declaration compelling defendant to specifically perform the joint will, plaintiff's motion for summary judgment on that claim is granted.


 The facts underlying this action are not in dispute. On December 21, 1963, Henry and Edith Campbell executed the joint will which plaintiff seeks to enforce here. The relevant portions of the joint will, which are set out in the margin, *fn1" designate plaintiff as the Campbells' sole distributee and as the executrix of their estate.

 Henry Campbell predeceased Edith when he died on November 3, 1970, prior to which time the joint will had not been revoked. The joint will was duly admitted to probate, and Edith Campbell thereby received the entire estate of Henry Campbell. On August 27, 1982, Edith Campbell executed a new will ("the second will"), devising her estate to more than thirty individuals and leaving only $3,000 to plaintiff. In addition, the second will named defendant and his brother as the executors of Edith Campbell's estate. Defendant's brother subsequently renounced his interest therein.

 Edith Campbell died on January 23, 1983, and subsequently defendant filed the second will, which was later admitted to probate. Plaintiff filed objections to the second will, urging that the joint will was the Campbells' only valid will. Defendant moved in the Surrogate's Court to dismiss plaintiff's objections to the second will, contending that plaintiff's proper remedy was not in Surrogate's Court, but should be an action for specific performance of the joint will in a court of general jurisdiction. *fn2" Surrogate Laurino granted defendant's motion on February 24, 1984. *fn3" On March 14, 1984, the second will was admitted to probate. Plaintiff subsequently filed a claim against Edith Campbell's estate in the Surrogate's Court. *fn4"

 It is plaintiff's position in this litigation that, pursuant to the second and penultimate paragraph of the joint will, supra note 1, that the joint will became irrevocable upon the death of Harry Campbell. Defendant Donnelly, who drafted both the joint will and the second will, disputes this argument, and contends that the language in the second paragraph of the joint will "to the survivor absolutely and without any limitation or restriction whatever" created an absolute unconditional gift of the first decedent's estate to the surviving testator, thus permitting Edith Campbell to execute a later, enforceable will. In addition, defendant alleges that the phrase "on the death of both of us" in the last clause of paragraph three of the joint will was intended to apply only if Harry and Edith Campbell died simultaneously or died too close in time for th survivor to execute a new will. Thus, defendant, who allegedly knew the testator for some ten years prior to drafting the joint will, *fn5" alleges that it was always the testators' intention that the survivor of Harry and Edith Campbell be permitted to execute a new will and that relatives on both sides of the family receive benefits thereby. Defendant further alleges that plaintiff was intended to be the sole beneficiary of the joint will only in the event of the limited circumstances described above.

 In her motion for summary judgment, plaintiff seeks an order (1) declaring that she is entitled to receive the entire estate of Edith Campbell pursuant to the provisions of the joint will; (2) directing defendant to pay over the entire estate to plaintiff; and (3) directing defendant to pay to plaintiff all commissions, executor's fees or other compensation which he or anyone acting under his control may receive for acting as executor of the second will. In opposition, defendant urges that the issue of testators' intent is a question of fact, the existence of which should preclude a grant of summary judgment in plaintiff's favor. Plaintiff argues that parol evidence regarding such alleged intent should be excluded because the language of the joint will is unambiguous.

 In addition, defendant challenges the subject matter jurisdiction of this Court, contending that jurisdiction lies within the Surrogate's Court. In the alternative, defendant requests that this Court abstain from exercising jurisdiction over any or all of plaintiff's claim, I will address the issues presented in defendant's motion prior to addressing those raised by plaintiff.

 Subject Matter Jurisdiction

 Without detailing the historical origins of the probate exception to federal jurisdiction, *fn6" it is sufficient to state that the adjudication of "purely" probate matters is outside the subject matter jurisdiction of the federal courts. Waterman v. Canal-Louisiana Bank & Trust Co., 215 U.S. 33, 44, 54 L. Ed. 80, 30 S. Ct. 10 (1909). However,

[f]ederal courts of equity have jurisdiction to entertain suits "in favor of creditors, legatees and heirs" and other claimants against a decedent's estate "to establish their claims" so long as the federal court does not interfere with the probate proceedings or assume general jurisdiction of the probate or control of the property in the custody of the state court.

 Markham v. Allen, 326 U.S. 490, 494, 90 L. Ed. 256, 66 S. Ct. 296 (1946) (emphasis added) (citations omitted). See also 13B C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure, ยง ...

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