Opinion
May 15, 1967
Order of the Surrogate's Court, Rockland County, dated June 16, 1966, which denied appellant's motion to reopen a probate proceeding, reversed and motion granted, without costs, and matter remitted to the Surrogate's Court for further proceedings not inconsistent herewith. On October 22, 1947 the decedent and his wife, Mary T. Brinkmann, jointly executed a will. It contained the following clauses: "FIRST: I, said CASPER HENRY BRINKMANN, do hereby give, devise and bequeath unto my beloved wife, MARY T. BRINKMANN, all my estate, both real and personal wherever situate, to be hers absolutely, to sell, convey and dispose of by Will or otherwise as she may deem proper; but should she die without having sold or made any disposition of my said property, then and in that event only, I give, devise and bequeath all my property then remaining unto my brothers and sisters of the whole blood and brothers and sisters of my wife, Mary, to be equally divided among them share and share alike and should any of them be dead, leaving lawful issue, such issue to receive the share his, her or their parent would take, share and share alike. SECOND: And I, MARY T. BRINKMANN, wife of Casper Henry Brinkmann, do in like manner hereby give, devise and bequeath unto my beloved husband, CASPER HENRY BRINKMANN, all my property, both real and personal, wherever situate, to be his absolutely, to sell, convey and dispose of by Will or otherwise as he may deem proper, but should he die without having sold or made any disposition of my said property, then and in that event only, I give, devise and bequeath all my property then remaining to my brothers and sisters and to the brothers and sisters of the whole blood of my husband, Casper Henry Brinkmann, to be equally divided [ sic] among them share and share alike and should any of them be dead leaving lawful issue, such issue to receive the share his, her or their parent would take, if living, share and share alike" (emphasis supplied). Mary T. Brinkmann died on October 17, 1963, and the jointly executed will was filed for probate in the Surrogate's Court, Rockland County. On November 1, 1963, the decedent executed the will that was offered for probate in this proceeding. He died on January 27, 1964, at the age of 92 years. Citations were served only upon his distributees. Two of his distributees objected to the probate of the new will and after a jury trial the will was ordered to be admitted to probate. At that point appellant, a sister of Mary T. Brinkmann, deceased, moved to reopen the probate proceedings on the ground that as a beneficiary in the jointly executed will she was required, by section 140 of the Surrogate's Court Act, to be cited in the proceeding for the probate of the latter executed will. That motion was denied, we think, in error. The question presented is not whether the latter will is a valid will but whether appellant should have been given the opportunity to interpose objections to its probate. The test here is whether the jointly executed will would have been operative as the will of the second to die had he left no latter will. We believe that it would have been effective for that purpose ( Matter of Elwyn, 285 App. Div. 91). Having been filed, albeit in the estate of the wife, section 140 was mandatorily applicable. Consequently the order appealed from should be reversed and the motion to reopen the proceeding granted, so as to require full compliance with section 140 of the Surrogate's Court Act, including the citation of each person designated as beneficiary in the jointly executed will of the decedent and his wife, Mary T. Brinkmann. Ughetta, Rabin, Benjamin and Munder, JJ., concur; Beldock, P.J., dissents and votes to affirm the order, with the following memorandum: In my opinion, according to the language of the joint will, it is the will of the one who predeceased the other. I construe the will as providing for an outright devise and bequest by each to the other of his or her property, thereby vesting ownership in the survivor with the full right to sell or dispose of same by will or otherwise. It imports an independent disposition by each of his or her own property and not a present joint disposition of the collective property of both, effective upon the survivor's death, which could then be deemed to have manifested an intent to bind one another to the disposition therein jointly made. Accordingly, any devise and bequest over, in the event of the subsequent death of the survivor, constituted an ineffective disposition of the other's property. In my opinion (a) the language of the devise over in futuro, in the event of the death of the survivor; (b) the fact that the provisions with respect to the disposition of the property of each are contained in separate paragraphs; and (c) the use of the pronouns "I" and "my", instead of "we" and "our", are significant. Accordingly, upon the death of the wife, the joint will became her will and was no longer the will of her husband. It was therefore not within the purview of section 140 of the Surrogate's Court Act, so as to require citing appellant in the proceeding to probate the husband's latter will, as a beneficiary of "any other will" executed by the husband (cf. Rubenstein v. Mueller, 19 N.Y.2d 228).