305 N.Y. 288, 305, 113 N.E.2d 424, 431
In October 1938, the testator executed a will bequeathing shares of stock in a New Jersey family corporation to his brother, the plaintiff.1
In April 1940, the plaintiff and the testator entered into an oral contract in Florida.2 Under the contract, the testator agreed not to change his will without the plaintiff's consent.3 In return, the plaintiff promised to purchase stock in the corporation held by their brother and stock held in trust for their three sisters.4 The plaintiff performed by purchasing the stock as agreed.5
With the plaintiff's consent, the testator executed a new will and codicil in 1940 bequeathing to the plaintiff the bulk of his stock upon condition that payments be made out of that bequest.6 In 1946, the testator executed a new will without the plaintiff's consent.7 This will left the bulk of the stock to persons other than the plaintiff with instructions to the executor to sell the stock to the plaintiff upon receipt of a reasonable offer.8 In 1947, the testator executed another new will without the plaintiff's consent.9 This will bequeathed all his stock to persons other than the plaintiff with similar instructions to the executor.10
The testator died in 1949 as a resident of New York County.11 The defendant trust company was appointed executor under the 1947 will by the Surrogate's Court of New York County.12 The plaintiff commenced this action against the executor seeking specific performance of the 1940 oral contract.13
The executor answered by asserting that the testator had been a New York domiciliary at all relevant times.14 The executor moved for summary judgment.15 Special Term denied the motions.16 The Appellate Division reversed the denial.17
The record shows that the testator was a New York domiciliary until 1938.18 Thereafter he traveled and sojourned elsewhere only on account of his health without acquiring a new domicile.19
Whether an oral contract not to alter a will made in Florida, where it is alleged the contract was a valid one, is enforcible in this State despite the fact that if made here it would be violative of section 31 of the Personal Property Law?20
Subdivision 7 of section 31 of the Personal Property Law renders void any contract to bequeath property or make a testamentary provision of any kind unless the contract or a note or memorandum thereof is in writing.21 This statute expresses a deeply rooted public policy of New York concerning testamentary dispositions by its domiciliaries.22 The policy overrides ordinary choice-of-law rules.23 An oral contract made elsewhere by a New York domiciliary is therefore unenforceable in New York courts even if valid where made.24
Yes. The contract is an oral promise by a New York domiciliary not to alter a will.25 The promise directly implicates the policy against oral testamentary agreements that the statute was enacted to enforce.26 The estate is being administered in New York Surrogate's Court under a will admitted to probate there.27
New York's interest in protecting the integrity of formal wills and preventing fraudulent claims against estates is paramount.28 The place of contracting in Florida supplies only minimal contacts that cannot overcome this policy.29
The oral contract is not enforceable in New York.30
Related opinions on this issue
Justice Desmond concurs in the affirmance.31 He urges the court to resolve the broader question left open for decades.32 The question is whether New York courts will enforce an oral agreement made in another state that violates the New York Statute of Frauds.33
He would answer no.34 He adopts the rule that if the forum's statute of frauds requires a writing as a condition of bringing suit, no action lies on a foreign oral agreement even if valid where made.3536 This follows from the established New York view that the statute is procedural and evidentiary rather than substantive.37
Whether the testator remained a New York domiciliary after 1938 such that no triable issue of fact existed on that point for summary judgment purposes?38
Domicile is ordinarily a question of fact and not of law unless the undisputed facts admit of but one inference.39 Upon a motion for summary judgment it was necessary for the defendants to establish prima facie by documentary evidence or official record the facts upon which their claim that testator died a New York domiciliary was founded.40 That requirement met, it was incumbent upon plaintiff to show facts sufficient to raise an issue with respect to the verity and conclusiveness of the documentary evidence or official records produced by defendants.41 If the issue claimed to exist is not genuine but feigned and there is in truth nothing to be tried, summary judgment is properly granted.42
Yes. The undisputed facts establish that the testator was a New York domiciliary until 1938.43 The record demonstrates that any subsequent travel was solely for health reasons without intent to acquire a new domicile.44 Plaintiff failed to present evidence sufficient to create a triable issue of fact regarding a change in domicile.45
Because the testator remained a New York domiciliary at all relevant times, the strong public policy expressed in section 31 applies with full force to the oral contract.46
The testator remained a New York domiciliary, and summary judgment was properly granted.47