Estate of Cawley

136 Pa. 628 | Pennsylvania Orphans' Court, Union County | 1890

Opinion,

Mr. Justice Williams :

The question presented by this appeal is one that has not arisen in Pennsylvania until now. It is important to a correct understanding of the real ground of controversy, to bear in mind the peculiar characteristics of a contract, and those of a will. A contract is an agreement between parties for the doing or not doing of some particular thing. The undertaking of one party is made in consideration of something to be paid or done by or on behalf of the other party, so that the obligation to do, and the right to require performance, are reciprocal. A will, on the other hand, is simply a statement of the purpose or wish of the maker as it exists at the time. As often as his purpose or wish changes, he may change the expression of it. When and why a change shall be made, depends on himself alone. He is answerable to no one for his determination to make one rather than another disposition of his property. After he has written out his will, and executed it in accordance with the forms of the law, it does not bind him; but, so long as he lives, he may change his own purpose, with or without a reason, and his last purpose properly written out and executed is his “last will and testament,” because death makes any further change impossible. The binding force of a contract comes from the aggregatio mentium of the parties. The binding force of a will comes from the fact that it is the last expressed purpose of the testator, in regard to the disposition of his property after his own death. While he lives, it is without force or value, but it begins to speak when he ceases to do so, and thereafter is heard in his stead.

Although these instruments are so unlike, they may be, and sometimes are combined so as to give a testamentary character to what purports to be a contract, or to convert a will into an irrevocable agreement. Whether any given writing is a will or a contract, must be determined by the character of its contents, rather than from its title; or any formal words with which it may begin or conclude. The familiar form of a will is that by which the testator directs how his property shall be disposed of after his death, and may be distinguished or described as the simple will of the maker. If two or more persons own property in common, they may convey it by joining in a deed, or by executing separate conveyances, at their con- ’ venience. They may transmit the title, each for himself, bjr a separate will; and there is no objection, on principle, to their joining in a testamentary disposition of it. Such a will might be properly called a joint will, because executed jointly by several owners, as a means of transferring their several titles to one devisee. The validity of a joint will was at one time denied in England, and has been denied in some of the United States, but the reasons for such denial relate rather to questions of probate than to the power of the several testators, and do not seem to have been regarded as settling the question in the countries where the decisions were rendered: 1 Williams on Executors, 10. Whether, after the death of one or more of the makers of such a will, the surviving maker may make a valid revocation as to his own title or share of the property devised, is an unsettled question and is not involved in the case before us, for the property to which this will relates was not held in common by the testators.

. .Another class of questions is presented, when two or more persons make reciprocal testamentary provisions in favor of each other, whether they unite in one will, or each executes a separate one. Such wills may be described as mutual or reciprocal. Their validity does not seem to be doubted, after the death of the respective testators; but the extent of the power of revocation in the survivor, after the death of one or more of the testators, is a question still in controversy and upon which different conclusions have been reached. In Evans v. Smith, 28 Ga. 98, the will was signed by two, and presented by the survivor for prohate. No revocation was attempted, and the only question really before the court was the validity of the paper as the will of the deceased signer. The court held it valid, characterizing it as a “ double will.” In Lewis v. Scofield, 26 Conn. 452, a similar will was presented, and its rralidity upheld by the court. In Betts v. Harper, 39 Ohio St. 639, the testators were tenants in common. After the death of both, it was probated as the separate will of each, and the earlier case of Walker v. Walker, 14 Ohio St. 157, which had denied the validity of such a will, was distinguished and qualified. The will of a husband and wife making reciprocal provisions for each other, and executed by both, was sustained in Diez’s Will, 50 N. Y. 88. In Schumaker v. Schmidt, 44 Ala. 454, two persons, who described themselves as “friends of' many years standing,” joined in a will by which the survivor was to take the property of the one dying first. Auerbach, one of the joint makers, made a later will, with a different disposition of his property, and died. The survivor insisted on the irrevocability of the first will, and claimed the estate, but the court upheld the last one. The point in controversy was stated in the opening sentence of the opinion of the court as follows: “ Was the writing between Schumaker and Auerbach a compact, and not a will, or a will containing a compact, and therefore irrevocable ? ” The conclusion of the court was that the writing was not a compact, but a will, and therefore' revocable at pleasure. It is worthy of note that the only consideration expressed for the mutual provisions made by the first will, was the “ mutual esteem ” which each entertamed for the other. This might, change in degree, or cease altogether, at any time. While it existed, it explained the mutual or reciprocal provisions contained in the will. It afforded not a consideration, but a reason, for them.

The will now before us was executed by a brother and sister. They were single, had lived many years together, and were feeling the infirmities of age. One owned a house and lot worth about $3,000. The other owned bank stock of about the same value. Their household goods seem not to have been the exclusive property of either. They appear to have lived together in the house, and used the income from the bank-stock, without keeping an account with each other. By their will, they provided that the survivor should have the property of the one first to die, during life, and that it should then go over to remainder-men named. The learned gentleman by whom it was drawn seems to have had Walker v. Walker, 14 Ohio St. 157, in his mind, and to have drawn the paper with the purpose of steering clear of the difficulty suggested by it. To this end the will is made to speak for each devisor separately, thus: “ I, Benjamin Cawley, should I be the first to die, and I, Mary Cawley, should I be the first to die, give, devise, and bequeath, and to the survivor of either of us, all the rest and residue of the decedent’s estate, both real and personal, to have and to hold and enjoy the same during the life of the survivor, without impeachment for waste, and with leave to use the body of the estate for necessity.” After the payment of debts and expenses, and the expiration of the life-estate, the will directs that the residue be divided into nine parts, and then proceeds: “Three of which parts I give and bequeath to John Cawley, two parts to' Hepburn Cawley, one part to Horace Cawley, one part to Mary Henson, .... one part to Ada Gilmore, .... and one part to Emma Harter.” H. C. Cawley was made a trustee for Ada, and her share was devised to him thus: “ I give and bequeath to H. C. Cawley, in trust, etc.; and the will then defines the nature of the trust, and uses the words, “ I distinctly declare that the above trust is an active one.”

The singular number is invariably used throughout the will, each testator speaking for himself or herself only, and neither attempting to speak for the other or of the other’s property. Each seems to have desired to make the same disposition of what he or she owned. Both adopted the same written expression of that desire, and executed it. ThS will so made must be regarded, therefore, as the separate will of each testator, as fully as though the will of each had been separately drawn up and signed. There was no joint property or joint devise. It is not, therefore, a joint will. It is not a contract between the makers in form or in effect. No consideration passed from one to the other, and none is suggested, except the affectionate interest which this aged brother and sister felt for each other. This moved them to provide for each other’s comfort by a life-estate in the survivor, but beyond that each gave to the remainder-men only what each owned. Such a will is properly described by the phrase in Evans v. Smith, supra, as a double will. It must be construed and treated as the separate will of each testator who signed it, in the same manner as though a separate copy had been executed by each. It was therefore revocable by both. Benjamin Cawley did not revoke, and his will is to be executed in accordance with its terms. Mary Cawley has exercised the power of revocation, and changed the ultimate destination of her property. Her last will must be followed, therefore, in the distribution of her estate.

The decree of the court below is affirmed, at the cost of the appellant.