In Re the Probate of the Last Will & Testament of Diez

Bapallo, J. The order made at Special Term, November 19, 1869, and afterwards affirmed at General Term, adjudg *92 ing that the instrument then offered for probate was not the will of Federick Diez, was not a bar to the present proceeding, or conclusive upon the claim now made. The instrument now propounded is not the same which was then rejected. That was an exemplified copy merely, and was rejected on the ground that the case was not brought within the statute, which allows exemplified copies' of foreign wills to be admitted to probate. The present application is not made under that statute, but the document propounded for probate is the original will. The execution of the instrument in the manner required by the laws of this State for the execution of wills of real and personal property seems to have been satisfactorily proved by the evidence taken on commission; assuming the instrument to be in form a will, no point has been made that any necessary formality was wanting in its execution as such. The two objections relied upon in the appellant’s points are, first, that not being under seal, the instrument cannot be regarded as a will of real estate, and second,, that it is in form a contract and not a will. The first objection is wholly unfounded; a seal is not requisite to a will of real or personal estate. The statute requires only that it be subscribed by the testator at the end. (2 R. S., 63; § 40; 1 Jarman on Wills, 70, note.) The second objection presents a more debatable question. The instrument is entitled, and refers to itself, in one place, as a matrimonial and testamentary agreement, and in another as a contract, and contains no expression declaratory of its testamentary character, except the words testamentary agreement, Or, as translated in the first deposition, “ contract of marriage and inheritance ” and in the third, “ marriage and inheritance contract.” These designations are not, however, conclusive as to the character of the instrument. That must be determined by the dispositions which it makes. (1 Jarman on Wills, p. 13 ; Ex parte Day, 1 Bradf., 482, and authorities there cited.) *93 . These dispositions are, in substance, that Diez and his wife each” declare that they thereby determine that, upon the decease of one or the other of them, the surviving husband or wife shall receive, unconditionally, the entire property of the. one having-died first, and that all former dispositions concerning the hereditary succession, which may have been made by either of the parties singly, or with the consent of both, are annulled. These provisions are preceded by a declaration of the motives leading to such a disposition of the property, which were, that it had been acquired by the joint exertions of the parties and that their only offspring had in the tenderest age departed this life. It is claimed that the fact that the property, upon which the instrument was to operate, was the product of the joint labor of the parties, furnished a consideration for an agreement between them, that on the death of either it should belong to the survivor, and that the instrument in question was such an .agreement and not a will. The distinguishing feature of a will is, that it is not to take effect except upon the death of the testator. An instrument which is to operate in the lifetime of the donor, and to pass an interest in the property before his death, even though its absolute enjoyment by the donee be postponed till after the death of .the donor, or even though it be contingent upon the survivorship of the donee, is a deed or contract, and not a will. But if the instrument is not to have any operation until after death, then it is a will, notwithstanding that it may have been executed in pursuance of a previous promise or obligation appearing upon its face. Testing the document now before us by this rule, we think that it was the will of that one of the signers who should first die. That it did not purport to convey any present estate or interest in the property, or to deprive either of the parties of the absolute power of disposition of his or her own property during his or her life, but was an arrangement testamentary in its character, and not intended to operate except upon the *94 death of one of the parties, and then only as expressive of the intention of the one dying as to the posthumous destination of his or her property. It does not use words of grant or mutual contract, but states that the parties have determined that, upon the death of either, the survivor shall receive the entire property. The reasons given for this determination do not necessarily make it a contract. The fact that by the same instrument the husband and wife devised reciprocally to each other, or, in other words, that it was a mutual will, does not deprive it of validity. There is no just objection to such a form of testating. The instrument operates as the separate will of whoever dies first. Here, the husband having died first, it can be proved as his will, and the efficacy of his dispositions is in no way impaired by those portions of the instrument which if the wife had died first would have constituted her will, but which have now become inoperative: The result is precisely the same as if like reciprocal dispositions had been' made by the husband and wife by means of two separate instruments. The combining of such reciprocal dispositions in one instrument is sanctioned by several authorities. (Ex parte Day, 1 Bradford, 476; Lewis v. Scofield, 26 Conn., 452; Evans v. Smith, 28 Geo., 98; 1 Redfield on Wills, 182 ; Rogers, appellants, 2 Fairfd. [11 Me.], 303; In re Stracey, 1 Deane, Eccl. R., 6; In re Lovegrove, 2 Swabey & Tristram, 453; Dufour v. Pereira, ( Dickens, 419; 2 Hargrave, 310, 311.) The order should be affirmed with costs. All concur. Order affirmed.