Opinion
July 6, 1959
Present — Wenzel, Acting P.J., Beldock, Murphy, Ughetta and Kleinfeld, JJ. [ 16 Misc.2d 592.]
Plaintiffs brought this action to enforce specific performance of certain provisions of a joint and mutual will in which they were the designated beneficiaries. In March, 1938 William Schweizer and his wife Josephine Schweizer entered into an agreement executed in the form of a mutual and joint will in which plaintiffs, the only grandchildren of the parties were the designated beneficiaries upon the death of the survivor. In August, 1939 the parties executed a codicil which ratified and confirmed the March, 1938 will, but merely changed the executor and trustee. The wife died in 1948. The will was probated in Bronx County, and the surviving husband accepted the benefits of its provisions. In 1951 the husband executed a new will, in violation of the agreement as expressed in the 1938 will. The husband died in 1957 and his will was probated in Queens County. The instant action followed and resulted in a judgment in favor of plaintiffs. Judgment unanimously affirmed, with costs. In our opinion, the wording of the joint and mutual will justified the conclusion that the parties intended to enter into a binding agreement to provide for the welfare of their only grandchildren, the natural objects of their bounty. The provisions of that will are therefore enforcible by the beneficiaries thereof. ( Rastetter v. Hoenninger, 214 N.Y. 66; Tutunjian v. Vetzigian, 299 N.Y. 315.)