In a mutual will made by a couple an arrangement was established for heir after heir under which upon the death of one of them, his estate would pass to the surviving spouse and after the death of both spouses the estate will be inherited by their two daughters. Upon the wife's death, her husband inherited and gifted the apartment to one of the daughters while he was still alive.
The Court approved the gift agreement. In a "heir after heir" will provision the first heir is entitled to do with what he received from the estate as if it were his own. That is, the first heir can treat the assets he inherited as a full owner, including spending them or transferring them to others through transactions during his lifetime, such as a gift. The only restriction imposed on the first heir is that he cannot derogate from the right of the second heir by a will. Thus, transferring an asset as a gift during the life of the first heir, even if it reduces the share of the second heir, is a valid action, unless an express restriction on this was set forth in the will. Here, in the mutual will there was no restriction on the use of the assets as long as the first heir spouse was alive. Thus, the father was entitled to give the apartment to the daughter during his lifetime and therefore the gift agreement was probated.