Johnson v. Orlup

Appeal from a judgment of the Supreme Court, entered December 12, 1974 in Albany County, which imposed a constructive trust upon the estate of Harry J. Smith for the benefit of the plaintiffs. The sole issue is whether or not the mutual last will and testament of Harry J. Smith and Lida Smith executed on February 14, 1964 constituted a binding contract for the distribution of their estate so that the subsequent will made by Harry J. Smith after the death of his wife, Lida Smith, is without effect to dispose of his property. As pertinent, the will provided that Harry and Lida Smith make a joint will and "It is our intention that our home where we now reside be used and continued as our dwelling as long as either or both of us survive [thereafter] to the [plaintiffs]”. The language used by the testators was of such a nature as to express a binding intent that all of their property upon the death of the survivor should go to the plaintiffs herein. The language is certainly as strong as that utilized in the case of Rich v Mottek ( 11 NY2d 90, 92, 93 ) and to permit a revocation after the death of Lida Smith would, under the *996 circumstances, be obviously unfair. Judgment affirmed, without costs. Herlihy, P. J., Greenblott, Main, Larkin and Reynolds, JJ., concur.