In re the Estate of Cohen

concur in part and dissent in part, and vote to reverse the decree insofar as appealed from, and to deny the application to impose a constructive trust, with the following memorandum: We agree with our colleagues in the majority that the Surrogate correctly found that the proponent did not offer sufficient proof to overcome the presumption that the will had been revoked. However, we disagree with our colleagues’ finding that the contract is enforceable. Although a joint or mutual will which expressly recites within its provisions, or by a separate instrument, that it cannot be altered or…