240 P. 927 | Wyo. | 1925
This is an action brought by Thomas J. Canada, plaintiff, against the administrator, with the will annexed, of the estate of Mrs. Wiseman M. Hill, deceased, and Samuel W. Scott. The property involved in this case is Lot 15 in Block 243 in the city of Laramie, which was owned by said deceased during her lifetime and which she devised to said Samuel W. Scott by her last will. The plaintiff asked to have the defendants declared to be trustees of the said property, that the contract hereinafter mentioned be enforced, and that defendants be compelled to make a conveyance thereof to the plaintiff, alleging that about September 1, 1918, the plaintiff was the owner of Lot 16 in Block 243 in the city of Laramie, adjoining Lot 15 aforesaid, and that he and said decedent entered into a mutual agreement at the date last mentioned, each agreeing to make a will leaving, at death, the property so owned by them respectively to the other, so that the survivor might have the two lots on which to build, one of the lots being too small for such purpose; that pursuant to said agreement plaintiff and said deceased executed their respective wills, reciprocally devising to each other their respective properties above mentioned; that on December 11, 1919, said deceased, fraudulently and without notifying plaintiff, attempted to rescind the said agreement by making a new will, revoking the former will and devising her property to said Samuel W. Scott, as above mentioned; that said new will was duly admitted to probate on October 14, 1920; that plaintiff fully performed all of the terms of the said agreement which he was to fulfill. *445
Issue was duly joined; the case was tried and judgment was rendered on June 4, 1923, in favor of the defendants and against the plaintiff. From such judgment said plaintiff, who will continue to be so denominated herein, has brought this case here by proceedings in error. The court found that the oral contract set up in the petition had been duly established by testimony other than that of plaintiff, but that oral proof of such contract was not admissible on account of the Statute of Frauds, the defense under which was set up by the defendants. Plaintiff and the deceased were not related to each other, and there was no consideration for the execution of the mutual wills unless the making of the contract and the execution of the wills is sufficient to satisfy the law in that respect.
1. Wills are, as courts express it, ambulatory in their nature, that is to say revocable at the pleasure of the testator until his death. In the absence of a contract there is nothing to hinder a testator of sound mind from changing his will as often as he pleases. At the same time a man may make a contract to leave his property by will in the same manner that he may make a contract to sell it. Schouler on Wills, sec. 694. It is said in Alexander v. Lewes,
2. The first question presented is as to whether or not an agreement to devise real estate comes within the Statute of Frauds, as contemplated by section 4719, W.C.S. 1920, which provides, in so far as applicable here, as follows:
"In the following cases every agreement shall be void unless such agreement or some note or memorandum thereof be in writing and subscribed by the party to be charged therewith. * * * Fifth — Every agreement or contract for the sale of real estate, or the lease thereof for more than one year."
A will is considered in the nature of a conveyance by way of appointment. A devisee comes within the legal definition of one who takes by purchase and the courts are nearly *447
unanimous in holding, under statutes such as we have in this state, that an agreement to devise real property is within the Statute of Frauds, and must be in writing. Cases cited supra; 27 C.J. 208, 209; Notes to 14 L.R.A. 862; 5 Ann. Cas. 495; 20 Ann. Cas. 1137; Ann. Cas. 1915A 463; 102 Am. St. Rep. 240. The only cases found holding to the contrary are Brown v. Webster, 90 Nebr. 591, 134 N.W. 185, 37 L.R.A. (N.S.) 1196; Woods v. Dunn,
3. Hence we must consider whether the statute has been complied with in the case at bar; that is to say whether the wills themselves should be construed as containing a sufficient memorandum of the agreement to satisfy the statute. There are cases which hold that the contract may be made out from the provisions of the wills themselves. These cases, however, are mostly cases in which a joint and reciprocal will was executed by the parties. It may not be illogical to hold that in such case the contract is sufficiently shown by the provisions of the will so made and signed by both parties. Frazier v. Patterson,
"If two persons make wills, each devising his property to the other, there is no necessary inference that the wills were the result of any mutual or reciprocal agreement or understanding. Such wills might be executed without either party knowing that the other had executed his will, but where the parties execute their wills by the same instrument, it is not possible that such course could be adopted without some previous understanding or agreement between them. Each would necessarily know what disposition the other had made of his property."
The great weight of authority is to the effect that mutual wills, made by separate instruments, do not afford sufficient evidence that the wills were made pursuant to a contract, and that hence, if the contract is shown at all, oral evidence is necessary. Schouler on Wills (6th Ed.) sec. 721; Alexander's Commentaries on Wills, sec. 85; Watson v. Gordon,
"On the other hand the appellant contends that the case is not within the statute, because the wills in question are sufficient memoranda of the agreement to satisfy the requisitions of the statute. But can this view be maintained? We think not. An examination of the wills which are exhibited with the bill shows that each purports to be a mere will and nothing else. Neither alludes to any contract or refers to *449 any other writing; and the established rule is that the memorandum of a contract for the sale of real estate required by the statute, must show, either on its face or by reference to some other writing, the contract between the parties, so that it can be understood without having recourse to parol proof."
In Alexander on Wills, where the author cites numerous authorities, it is said:
"The weight of authority is that such agreements to make wills are not established merely because two persons have made reciprocal testamentary dispositions in favor of each other, the language of such wills containing nothing to the effect that the instruments were the result of a contract. Some jurisdictions, however, have held that such fact causes the presumption to arise that the wills were executed pursuant to an agreement. The reasoning in such cases, however, does not seem cogent and general facts and circumstances are included to aid in arriving at the conclusion. Of course, in a proper case, where the question of a contract arises, the fact of the execution of mutual or reciprocal wills may be introduced in evidence as tending to prove a contract, but it is not conclusive. Even though a presumption is claimed, yet a presumption should not take the place of proof. It should require something more than the mere making of reciprocal testamentary dispositions to convert a revocable instrument into an irrevocable compact."
In the case at bar there is nothing in the wills executed by either party to indicate that it is made pursuant to a contract. The wills are in the ordinary form. While, perhaps, the execution thereof about the same time, indicates that there was some sort of understanding between the plaintiff and the deceased, the exact nature of the contract is not thereby shown. It is not impossible, or even improbable, that some conditions were attached to the contract. *450 The decedent might have reserved the right to change her will upon change of circumstances, and the mere agreement to execute a will was not an agreement not to revoke it. We, accordingly, think that the wills alone are not sufficient memoranda to satisfy the Statute of Frauds.
4. It remains to consider whether or not there was sufficient performance on the part of the plaintiff so as to take the case at bar out of the statute. We are, fortunately, saved the trouble of discussing when part or full performance takes a contract out of the statute under the laws of this state in the ordinary case. The only performance that is claimed in the case at bar is the fact that the plaintiff executed the will in pursuance of the contract which he claims was made, and that he left his will in the custody of a third person. A similar situation is disclosed in the case of Gould v. Mansfield, supra, in which the court said merely: "There has been no part performance which amounts to anything." A like situation too was disclosed in the case of Hale v. Hale, supra, and the court said:
"The equitable doctrine of part performance is also invoked, but as to this we may say as was said in a similar case in Massachusetts: `There has been no part performance which amounts to anything."
In re Edwall's Estate, supra, the court said:
"Some contention is made by counsel for appellant resting upon the theory of part performance on her part of the contract she relies upon. The record furnishes no evidence whatever of part performance unless we regard the mere execution of the wills by both testators as performance. We do not think that the mere making of a will, in pursuance of a contract required to be evidenced in writing by the statute of frauds, constitutes a part performance of such a contract so as to render the same enforceable." *451
To the same effect is McClanahan v. McClanahan, supra. In Gooding v. Brown, supra, the court said:
"Nothing can be regarded as requisite part performance to take such agreement out of the operation of the Statute of Frauds which does not place the party seeking relief in a situation which is a fraud upon him unless the execution of the contract be required in his behalf and for his protection. * * * The agreement here was executory; no rights of property could vest until the devise and bequest became effectual by the decease of the party making the will. The fact that the plaintiff executed a will does not establish performance of the contract on his part so as to divest himself of any rights of property, nor did it place him in a situation from which he could not retreat without prejudice to any rights existing at the time the agreement was made. The revocation by Wells Gooding of his will was a mere failure on his part to transfer his property by will to the plaintiff. The latter lost nothing by the agreement or by any part performance of it; he simply failed to acquire by devise the estate of his brother. The element of fraud, which equity will recognize in support of the right to execution of a contract within the statute, does not appear in this case."
In most of the cases dealing with mutual or joint wills, which hold that the Statute of Frauds has been satisfied, it appears that one of the parties to the contract died leaving his will in effect, and that the survivor accepted the benefit under the will of the decedent. In such case the courts say, either that there has been full performance on the part of the decedent, or that the survivor is estopped from revoking his will by reason of the receipt of benefits. Such cases are Rastetter v. Hoenninger, supra; Stevens v. Myer,
5. Let us, however, further consider the case without reference to the Statute of Frauds, as has been done by some of the authorities. We find the broad statement at times that equity will enforce a contract to execute mutual wills. See Schouler on Wills, sections 720, 721. Such a contract, however, like any other, must not alone be just, but must also be based on a sufficient and valuable consideration — a principle of law founded on public policy. See Walpole v. Oxford, 3 Ves. Jr. 402. We have no doubt that contracts, thus supported, will be upheld by the courts. Chambers v. Porter, (Ia.) 183 N.W. 431, where the consideration was the settlement of property rights in connection with a divorce, seems to be such a case. See also Herman v. Ludwig, supra; Stewart v. Todd, supra; Bedal v. Johnson, supra. So, too, as we have heretofore noted, where one of the parties to the contract dies leaving his will in force and effect, and the other party enjoys the benefit thereof, it would be clearly unjust to permit the survivor to break his agreement, and such is the unanimous holding of the courts. *453
But we have no such case here. If there was any consideration for the contract in question, it consists of the promises mutually made and the actual execution of the wills, left, so far as the plaintiff is concerned, in force and effect till after the death of Mrs. Hill. We have already seen that this "amounts to nothing" as part performance. Does it amount to more, viewed as a consideration? We think not. In the case of Humane Society v. McMurtrie,
"A joint, mutual or reciprocal will, like any other, is ambulatory during the lives of the makers, and it may be revoked by either of them before his death. The right of revocation cannot be doubted, at least as to either maker who has taken no benefit or advantage under the will."
In the case of Frazier v. Patterson,
"To deprive either party of the right to revoke such mutual will, it is necessary to prove by clear and satisfactory evidence that such wills were executed in pursuance of a contract or a compact between the parties, and that each is a consideration for the other, and even in cases where mutual wills have been executed in pursuance to a contract or agreement between the parties, the rule appears to be well settled that either party may, during the lifetime of both, withdraw from the contract and revoke the will as to him. A joint and mutual will is revocable during *454 the joint life by either party, so far as relates to his own disposition, upon him giving notice to the other, but it becomes irrevocable after the death of one of them, as the survivor may take advantage of the provisions made by the other."
Campbell v. Dunkelberger,
"In order that either party be denied the right to revoke such wills, it must appear by clear and satisfactory evidence or on the face of the wills that these were executed in pursuance of a contract or compact between the parties, each in consideration of the other; but even then either party may revoke during the lifetime of both, provided the other have notice of the intention of the revocation."
Like language may be found in Larrabee v. Porter, (Tex.Civ.App.)
These cases, or most of them, qualify the right of revocation by stating that notice thereof must be given during the lifetime of both. We think that such qualification is not applicable to a case like that at bar, if at all. If an agreement for the execution of a mutual or joint will is based upon a sufficient consideration, it ought not to be able to be revoked, notice or no notice. If the mutual agreement itself, followed by execution of the wills, is a consideration sufficient to satisfy the law, it should be irrevocable without reference to any notice that may be given by the party that wishes to revoke. The consideration, if sufficient, would continue to be so, and should be just as effective a bar to revocation after notice as before. So it must be apparent that the courts, in holding that a mutual or joint will may be revoked upon giving notice, in effect hold that the mutuality of the agreement, carried out by executing the will, is not in and of itself a sufficient consideration to support *455 the compact. The truth is that references in cases to the requirement of notice are all based upon dicta contained in the case of Dufour v. Pereira, as reported in 1 Dick 419, 21 Eng. Rep. 322, decided in 1769, where Lord Camden is reported as stating:
"Consider how far the mutual will is binding and whether the accepting of the legacies under it by the survivor is not a confirmation of it. I am of opinion it is. It might have been revoked by both jointly; it might have been revoked separately, provided the party intending it had given notice to the other of such revocation. But I cannot be of opinion that either of them could during their joint lives do it secretly; or that after the death of either, it could be done by the survivor by another will."
The case is reported at greater length in Hargraves' Juridical Arguments, vol. 2, p. 304, from which it appears that Lord Camden's decision is clearly based upon the proposition that one party should not be able to defraud the other. All else is dicta. The case is commented on at length in Stone v. Haskins, L.R. Probate Division, 1905, where the court holds that the death of one of the parties conveys sufficient notice to the other, summing up the law on this subject as follows:
"It appears to me that the result is tolerably plain. If these two people had made wills which were standing at the death of the first to die, and the survivor had taken a benefit by that death, the view is perfectly well founded that the survivor cannot depart from the arrangement on his part, because, by the death of the other party, the will of that party and the arrangement have become irrevocable; but that case is entirely different from the present, where the first person to die has not stood by the bargain and her "mutual" will has in consequence not become irrevocable. The only object of notice is to enable the other party to the bargain to alter his or her will also, but the survivor in the *456 present case is not in any way prejudiced. He has notice as from the death. I cannot see that the cases cited support the proposition for which the defendant contends, with the result that he must, I think, fail to obtain the declaration which he seeks."
See also section 86 of Alexander on Wills.
We think that the death of one of the parties who has revoked the will should be held to convey sufficient notice to the other, at least where enough time elapses after such death to apprise the survivor of such revocation, enabling him to revoke his own will.
In the case of Turnipseed v. Sirrine,
"There is no evidence of a valuable consideration to support an agreement between W.C. Anderson and his wife to dispose of their property in the manner set forth in the will."
It may, however, be, that certain arrangements of property, like that made among members of a family, should be put upon a somewhat different footing from those made between strangers in blood. In Lewis v. Lewis,
The judgment herein should accordingly be affirmed and it is so ordered.
Affirmed.
POTTER, C.J., and KIMBALL, J., concur.
