Cecil Cooke Caldwell v. Rosenberg

NOURSE, P. J.

The plaintiffs sued for declaratory relief and had judgment on the pleadings after an order striking out the answer of the defendant Rosenberg on the ground that it tendered no triable issue of fact. Her appeal from the judgment presents a question of law alone—whether the complaint pleaded a cause of action for declaratory relief.

Plaintiff Cecil Cooke Caldwell and defendant Rosenberg are brother and sister, the two children of Mary S. Caldwell. The latter is a niece of Hannah N. Plaviland, deceased. The

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latter by will devised an estate in trust for the benefit of Mary S. Caldwell during her life, the remainder to “vest in and become the property of the children of said Mary S. Caldwell then living, share and share alike.” The trustee (which is named as a party defendant, but does not appear) took possession of the property following the death of the testator in 1919, and has continued to administer the trust in accordance with the terms of the will. In September, 1925, the brother and sister executed a contract in writing referring to the trust created by the will and reciting: “We are both married and have children and it is our desire that in case one of us should die before our mother that our family receive our portion of this trust fund rather than that the entire fund go to the one living at the time of our mother’s death.

“We therefore enter into this agreement and declare it our wish that one half of the aforementioned estate become the property of the heirs of the one of us who may be deceased at the time of our mother’s death.

“We each of us therefore renounce one half interest in this estate and declare and promise to each other that we will carry out the provisions of this agreement.”

Within one year preceding the commencement of the action in July, 1940, defendant Rosenberg declared to plaintiff Cecil Caldwell that the said agreement was invalid, that she no longer considered herself obligated by the provisions of the agreement but that she would, in the event that said plaintiff should predecease the life beneficiary, claim the entire estate in her own right free of trust.

The trial court’s judgment sustained the validity of the agreement and held each party bound by its terms to hold one-half of the trust property received by him or her upon the death of the life beneficiary for the benefit of the heirs of the other party, in the event that either party should have predeceased the life beneficiary.