IN THE MATTER OF HARRY ALEXANDER COHEN,

    83 N.Y.2d 148, 629 N.E.2d 1356, 608 N.Y.S.2d 398 (1994).
    February 17, 1994

   2 No. 13 (1994 NY Int. 016)
   Decided February 17, 1994
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   This opinion is uncorrected and subject to revision before publication
   in the New York Reports.

   LEVINE, J.:

   The decedent, Harry Alexander Cohen, and respondent Rae Cohen, an
   elderly, childless married couple, executed mutual wills on April 15,
   1982. Each will established a trust for the life of the surviving
   spouse consisting of that portion of the testator's estate "equal to
   the largest amount that can pass free of Federal estate tax by reason
   of the unified credit and the State death tax credit", with the corpus
   to be distributed upon the surviving spouse's death among named
   relatives of the decedent and Mrs. Cohen in specified percentages,
   resulting in an equal division of the trust property between the
   decedent's family and Mrs. Cohen's family. Each will devised the
   residue of the testator's estate to the surviving spouse, absolutely.

   At the time they executed their wills, the decedent and Mrs. Cohen
   also entered into a written agreement making each of their wills
   irrevocable except upon the consent of the other spouse. The agreement
   recited that the parties had simultaneously executed wills effectively
   bequeathing their respective estates one-half to the decedent's
   relatives and one- half to Mrs. Cohen's relatives, and that they
   intended the wills to be permanently reciprocal so that the will of
   the survivor could not be changed after the first of them died. The
   agreement specifically provided that neither party could revoke or
   alter that party's will without the written assent of the other and
   that any such unassented to (by both parties) revocation or alteration
   would not be effective as against the legatees named in that will. In
   another provision, the Cohens agreed that any inter vivos gift to a
   legatee by the surviving spouse was to be deemed an advancement on the
   legacy of that donee under the survivor's will and that "every legatee
   (named in their wills) is hereby made a third party beneficiary of
   this agreement".

   Decedent died in December 1986, survived by Mrs. Cohen. She applied
   for and was issued Letters of Administration, based upon her sworn