149 N.E. 770 | Ill. | 1925
This appeal is prosecuted from a judgment of the circuit court of McDonough county admitting the will of Harvey A. Helms to probate. The testator died March 3, 1925, leaving a widow, Alta May Helms, but no children or descendants of a child. He left surviving several brothers and sisters. Notice was given of the application to admit the will of the deceased to probate. The hearing was had in the county court and that court admitted the will to probate. The brothers and sisters of deceased appealed to the circuit court, and that court affirmed the judgment of the county court and ordered that the will be admitted to probate *282 by the county court. From that judgment the brothers and sisters of the deceased have prosecuted this appeal.
The will purports to be the joint and mutual will of Harvey A. Helms and Alta May Helms, his wife, and is dated December 29, 1924. It is signed by Harvey and Alta May Helms, and by Clint Wilson and Reon D. Hicks, witnesses. The preamble recites that "we, Harvey A. Helms and Alta May Helms," do make and declare the instrument as their last will and testament. The first clause reads, "We and each of us" direct the payment of "our" debts and funeral expenses. By the second clause Helms devises and bequeaths to his wife all the property, real and personal, he dies possessed of, to be hers in fee simple. By the third clause Mrs. Helms devises and bequeaths to Helms all the property she dies possessed of, both real and personal, to be his in fee simple. The fourth clause names E.T. Martin as executor and revokes all former wills made by them. The attesting clause recites they have subscribed the instrument, denominating it "our joint and mutual will." The will was prepared by the man named as executor, at his bank in Blandinsville. Mrs. Helms was not present. The will was read over to Helms by Martin, and Helms signed it. At his request Wilson signed it as a witness. Helms left the bank to return home, and requested Wilson, who was a neighbor, to come to his house the next morning. Wilson did so, and there, besides Mr. and Mrs. Helms, he met Reon D. Hicks. Helms produced the will, and Hicks, who was present at Helms' request, was going to sign it, when Helms suggested that Mrs. Helms sign it first. She signed the will and then Hicks signed it. Wilson did not again sign the paper.
The principal objection to the probate of the will is that it purports to be a joint and mutual will but was not executed by Mrs. Helms in the manner required by statute. Her signature was not witnessed by Wilson after she signed it. The instrument could not be probated as Mrs. Helms' *283 will at her death, and the contention is that if it was not a valid will of Mrs. Helms it could not be valid as to her husband and the court erred in admitting it to probate as the will of Harvey A. Helms.
Joint, mutual and reciprocal wills were originally regarded with disfavor but are now generally sustained by the courts of England and this country. Such wills have received the consideration of this court. In Gerbrich v. Freitag,
In Peoria Humane Society v. McMurtrie,
The question of the disposition of property by a joint, mutual or reciprocal will was again considered by this court inFrazier v. Patterson,
The important question presented in this case is whether the fact that Mrs. Helms' signature to the will was not attested by two witnesses, as required by statute, rendered the instrument invalid as the will of her husband. It will be remembered that Wilson and Hicks witnessed the signature of Helms, but Hicks only witnessed the signature of Mrs. Helms. She clearly did not properly execute the will, and if she had died first it could not have been probated as her will. If it was invalid as to her, could it be a valid will of her husband? The precise question has not been decided so far as the briefs show or our own investigation discloses.
Joint, mutual or reciprocal wills are regarded as made pursuant to a compact or agreement, and it appears that many courts hold they may be revoked by one of the parties during the life of both, but the contract cannot be revoked and may be enforced at law or in equity. (Page on Wills, sec. 69; Thompson on Wills, sec. 470; Schouler on Wills, sec. 458a.) Whether the cases so holding are regarded as sound or not, they are not very helpful in solving the question here presented. Revocation of a joint and mutual will assumes such a will had been executed, but here no such will was executed. In effect the will here shows Helms and wife entered into an agreement that they would jointly execute a will giving to the survivor all the property of each of them. The husband performed his part of the agreement by executing the will but the wife never did. This court said in Frazier v. Patterson, supra, that when a husband and wife execute a joint and mutual will it is not possible that it would have been done without an understanding and agreement between them. In Peoria *287 Humane Society v. McMurtrie, supra, the court said it was clear Mrs. Rouse and her son intended the will should take effect as to both or neither. In that case the joint and mutual will was subject to the right to make an individual will. Neither of those cases involved the direct question here presented, but they recognize that joint, mutual and reciprocal wills are made pursuant to an agreement and understanding and must take effect as to both parties or neither. The will here involved could not take effect as to Mrs. Helms. If she had died first the instrument could not have been admitted to probate as her will, because it had not been executed in compliance with the statute. Her husband executed the will in consideration of her promise to execute it. She failed to keep her promise, and so the consideration of the husband's execution of the will failed. Can the instrument be a valid will disposing of the husband's estate to his wife when the consideration for making it — his wife's promise to devise to him her estate if he survived her — has wholly failed? Under the peculiar circumstances of this case we think the instrument had to be valid as to both or it was invalid as to both. It purported to be a joint, mutual and reciprocal will of both, for the benefit of the survivor. It was, in fact, the will of the husband, only. It could not be doubted that if the wife had by fraud induced her husband to execute the will but deceived him by not executing it herself it would not be his will. Here there was no actual fraud and no such charge can be made, but the result is the same as if a fraud had been perpetrated by Mrs. Helms. It was the intention of the parties that the instrument should be effective as the will of both and give to the survivor the estate of the one dying first. This intention and agreement were not carried out and it never became the will of either.
The circuit court erred in admitting the instrument to probate as the will of Harvey A. Helms, and the judgment is reversed.
Judgment reversed. *288