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Plaintiffs Seek Declaration of Rights Regarding Father’s Estate – Wagner v. Wagner, 58 A.D.2d 7, 395 N.Y.S.2d 641 (N.Y. App. Div., 1977)


In this case the court is asked to enforce an agreement made by spouses in a joint will that required the surviving spouse to leave any property received under the will to the couple’s children.

This case involves a dispute over the estate of R. Wagner and T. Wagner. R. Wagner and T. Wagner were married. T. Wagner died and R. Wagner married A. Wagner. Then R. Wagner died, leaving A. Wagner as the surviving spouse. R. Wagner left a will that named Runstorf as the executor. This case is an action brought by the children of R. Wagner and T. Wagner for declaratory judgement related to certain property that was originally owned by R. Wagner and T. Wagner. The action named A. Wagner and Runstorf as defendants. The Supreme Court dismissed the complaint. The plaintiffs appealed.

In the complaint, the plaintiff asked the court to impress a constructive trust upon real property located in Staten Island, to void A. Wagner’s right of election, to impress a constructive trust upon the proceeds of A. Raymond’s pension plan, and to impress a constructive trust on the funds in savings and checking accounts that were owned by T. Wagner and A. Wagner jointly.

On October 17, 1967 R. Wagner and T. Wagner executed a joint will. A joint will is a type of will that is jointly executed by two or more persons. Under a joint will, the surviving party inherits the entire estate when the other party passes away. Joint wills are typically made by spouses. R. and T. Wagner’s joint will provided that they each leave the survivor all of their real and personal property. It also provided that after the death of the survivor, all of the real and personal property that left to the survivor would go to their children. Their children are the plaintiffs in this action.

When T. Wagner died in 1971, R. Wagner received the real estate on Clarendon Road that they jointly owned as tenants by the entirety as well as a joint bank account. In November 1972 R. Wagner sold the Clarendon Road property for $32,750. He married A. Wagner in December 1972. Together they purchased property at 141 Forest Green, Staten Island, for $44,785– $26,785 cash and a mortgage of $18,000. R. Wagner died on November 7, 1974 and the joint will insofar as his estate was concerned was admitted to probate. At the time of his death R. Wagner owned the Forest Green property as tenants by the entirety with A. Wagner (his second wife), the Avenue D property in his own name, two bank accounts in his name jointly with A. Wagner in which there was $305.50 at the East River Savings Bank (emanating from R . and T. Wagner’s bank account), and $148.32 at the Manufacturers Hanover Trust Company, the monies of which were contributed solely by R. Wagner. It was alleged that furniture in the home of R. and A. Wagner was purchased by R. Wagner with $4,065 from the proceeds of the sale of Clarendon Road.

On or about February 26, 1975 plaintiffs commenced the within action, arguing that the joint will executed by R. and T. Wagner, plaintiffs’ parents, imposed a contractual obligation upon the survivor (R. Wagner) to dispose of his assets, upon his death, to plaintiffs. The trial court dismissed the complaint on the grounds that the joint will did not expressly impose a restriction on the disposition of property during the lifetime of the surviving spouse (EPTL § 10-6.2(a)(4)) and that the joint will may not be enforced as a contract, because of lack of adequate consideration.

The Appellate Division disagreed with the trial court. It noted that the joint will executed by R. and T. Wagner strongly suggests an enforceable obligation upon the survivor to dispose of the property as stated. The court noted that throughout the will the plural pronouns “we” and “us” are used, and not “I”. In addition, because the beneficiaries would be their own children, that is further evidence that they meant to impose an enforceable obligation upon the survivor to leave the property to their children.

In response, the defendants argued that because T. Wagner did not contribute any assets to what she owned jointly with R. Wagner, R. Wagner should be free to dispose of the property in any way he saw fit. The court was not impressed by this argument. While R. Wagner could do whatever he wanted to during his lifetime with the property, he could not make a testamentary disposition of it in a manner that was contrary to the agreement he made with T. Wagner in their joint will. Finally, as to Anne’s right of election under EPTL § 5-1.1, the court concluded that she did not have a right of election with respect to any property which is subject to plaintiffs’ entitlements under the joint will.

Accordingly, the court found in favor of plaintiffs.

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