Lynch v. Lichtenthaler

WOOD, J.

Plaintiff, in this action against the beneficiaries and the executor under the will of her stepfather Herman Golles, seeks, by her first cause of action, to establish a trust as to one-half of the distributable estate, and, by her second cause of action, to quiet title to an undivided one-half of said distributable estate. Judgment was for defendants, and plaintiff appeals from the judgment.

[439]

The alleged basis of the action is that plaintiff’s mother, Annie Golles, and plaintiff’s stepfather, Herman Golles, had entered into a purported oral agreement to make reciprocal wills and not to revoke such wills. On November 15, 1934, Annie Golles made a will, and on November 16, 1934, Herman Golles made a will. The wills were practically identical. Under the wills each testator appointed the other testator as executor, and in the event such appointee did not survive the testator, appointed plaintiff as executrix. Also under the wills, each testator gave all of his property to the surviving spouse for the period of his life, with the right to consume and use the principal, and each testator gave, upon the death of the survivor, one-half the remainder to plaintiff herein and one-half to the children of plaintiff’s brother, the defendant Frederick W. Lichtenthaler (who will be referred to herein as Frederick). Differences in the wills were as follows: Mrs. Golles stated that she had two children, and Mr. Golles stated that he had no children; she referred to her “heirs hereinafter named” and to “my daughter” and “my son”; he referred to his “legatees and devisees hereinafter named” and to “the daughter of my wife” and “the son of my wife”; she stated that she made no provision for her son Frederick, and he stated that he made no provision for his blood relatives and stated reasons why his property “should go” to his wife and to his wife’s daughter and grandchildren. The plaintiff and Frederick were the only children of Mrs. Golles, and they were the issue of a previous marriage. Mr. Golles had no children. Mrs. Golles died July 19, 1943. Her will was admitted to probate and the estate was distributed according to the terms of the will. On November 5, 1943, Mr. Golles revoked his will and made another will in which he gave all of the property, except that in which he held a life estate under his wife’s will, to Frederick, Frederick’s wife, and Frederick’s three children, and he stated therein that he was leaving nothing to plaintiff for the reason that she had forced him, by threats on his life, to give her $1,500 “right after” the death of Mrs. Golles, receipt for which money was in his safe deposit box. Mr. Golles died on July 26, 1945, and the will last mentioned was admitted to probate. Frederick, as guardian of his minor children, filed a petition to terminate the life estate of Mr. Golles in the property which had been distributed to Mr. Golles for life under the will of Mrs. Golles. The court decreed, in the matter of that petition, that the life