In re the Accounting of Levin

Dye, J. The parties to this proceeding in the nature of an intermediate accounting are the executors of the will of the deceased father, Morris Levin. Herman is the son of the decedent by his first marriage. He files a voluntary account to which the others, Belle Burrill and Max Levin, children by decedent’s second marriage, have filed objections, consisting of [539] several specifications, the principal of which and the one decisive of this appeal, is whether the testator in his lifetime agreed with his wife, Yetta, to bequeath his entire estate to their children in equal shares. It appears that on September 14, 1942, the wife, Yetta, executed her will by which she bequeathed to the children, Belle and Max, in equal shares, money she had on deposit in a savings bank, and the balance of her estate in trust for the life use of her husband after payment of premiums on his life insurance, the remainder to her children or the survivor of them. Two days later, on September 16, 1942, the husband, Morris, executed his will by which he bequeathed his entire estate to his wife, Yetta, or if predeceased then to their children Belle and Max in equal shares, expressly stating that no provision was being made for his son, Herman. Coincident with the execution of the will he also signed the following letter: “ September 16th, 1942. Dear Yetta: This is to confirm our agreement, as follows: You have under date of September 14, 1942, made a Will whereby you have bequeathed and devised to me the entire net income of your estate after the payment of certain premiums, if any, on life insurance carried by me. You have done so in the knowledge that if you should predecease me I will leave my entire estate to our children Max Levin and Belle Burrill. I have this day made a Will in which I have devised and bequeathed my entire residuary estate to our children Max and Belle in the event that you should predecease me. This letter is to confirm my agreement that in the event that you should predecease me, and that at the time of your death you should not have revoked your said Will made on September 14, 1942, I will not revoke or alter my said will made today. Affectionately, Morris Levin ” Thereafter in April, 1944, Yetta died. Her will mentioned above was admitted to probate, her husband qualifying as executor. Two years later and on May 4, 1946, the husband, Morris, [540] executed the within will by which he bequeathed his entire estate to his three children, Herman, Belle and Max in equal shares. A lawyer, related to both the testator and his wife, Tetta, and who represented them both at the time they made their wills, was allowed to testify over objection to the circumstances under which Morris had signed the letter. This was for the purpose of establishing that Morris knew and understood that Tetta was not leaving him her entire estate as stated in the letter but that a substantial part of the cash was being given to'Belle and Max. The Surrogate ruled in favor of the objectants and made a decree directing distribution to them to the exclusion of the son, Herman. On appeal, the Appellate Division, First Department, found the alleged agreement to be invalid and unenforcible for noncompliance with the Statute of Frauds (Personal Property Law, § 31, subd. 7), which question was argued in that court for the first time (although it had been raised in the trial court by timely objection to the admission of paroi testimony) and accordingly modified the Surrogate’s decree by directing distribution to all three children, in accordance with the will, and as so modified otherwise affirmed. The modification was on the law alone — it having ruled that paroi testimony was inadmissible to explain the variance between the terms of the will made by Tetta and the letter signed by Morris — for without such testimony the difference could not be reconciled. We agree with this view. The letter evidencing the oral agreement uses clear and unambiguous language. It must be read as a whole. It first makes reference to the will executed under date of September 14th and expresses an understanding on the part of Morris that ‘1 you have bequeathed and devised to me the entire net income of your estate ’ ’ — but which in fact did no such thing. By her will, Tetta had made an outright gift of a substantial cash deposit to the children, Belle and Max. The second paragraph, when considered alone might be deemed sufficient compliance for then paroi testimony could be limited to identification of the documents. The paroi testimony as used here went beyond a mere descriptive error (Patch v. White, 117 U. S. 210; Mansfield v. New York Central & H. R. R. R. Co., 102 N. Y. 205). It attempted [541] to demonstrate that the knowledge and understanding of the party to be charged as expressed in clear and unambiguous language were otherwise. Upon familiar practice a memo of a contract required by statute to be in writing must be by and of itself a complete expression of the intention of the parties without reference to paroi evidence (Stulsaft v. Mercer Tube & Mfg. Co., 288 N. Y. 255). Without the attorney’s paroi testimony that Morris understood and accepted the terms of his wife’s will, there is no basis for a ruling that she performed in accordance with her agreed obligation and thus voided the statute. Here the paroi was utilized, not to explain an ambiguity, but to prove that one of the parties understood and ratified a departure from the expressed terms of the agreement, in the absence of which he could not be bound. The other objections, having to do with the disallowance of certain claims for services and moneys loaned by Herman to the testator in his lifetime, have been affirmed and need not detain us further. The order appealed from should be affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate.