Lead Opinion
Aрpellees (complainants in the court below) seek by this bill to have the probate of the will of one Easley Walker, deceased, of date December 17, 1907, set aside and annulled upon the ground that the same was not the last will and testament of the said Easley Walker, but the last will was that of July 3, 1915, the execution of which revoked the said former will.
The bill alleges that the complainants did not contest the probate of the will of December 17, 1907, in the probate court, and they seek to have the will of July 3, 1915, declared the last will and testament of the said Easley Walker, and admitted to probate as such. The will of December 17, 1907, is shown by the bill to have been duly probated in the probate court of Houston county, Ala., on October 2, 1915, and is attached to the bill as ■ an exhibit and asked to be taken as a pаrt thereof, and is set out in the foregoing statement of the case. The will discloses upon its face that it was executed upon a valuable-consideration based upon conveyances of real estate as well as personal property to the testatrix by the appellant R. IE Walker, who was her husband, the beneficiary named therein, and who, it is alleged, propounded the will for рrobate.
The recitals of the said will also show that the testatrix had received and accepted the' valuable consideration upon which the same was based. - The averments of the bill clearly disclose that the ground of contest is rested solely upon the fact that the testatrix, as alleged, executed the will of date July 3, 1915, thereby revoking the will of December 17, 1907. The due execution of the latter will is by no means attacked, but it is treated in all respects as legal and valid, with the exception of the insistence that it was revoked by the subsequent will. The demurrer takes the point that the bill showed upon its face that the will of December 17, 1907, was based upon a valid and valuable consideration moving from the said R. H. Walker to the said Easley Walker, and that the same was of binding force upon the lattеr, and could not be revoked by a subsequent will.
“Tlie authorities are overwhelming, and rest on the soundest basis, that such a promise, supported by a valuable consideration, is. valid and binding, unless assailed on some other sufficient ground.”
This question is given consideration in Bolman v. Overall,
“There is nothing in this contract which is repugnant to public policy. All the authorities agree that one may, for a valuable consideration, renounce the absolute power to dispose of his estate at pleasure, and bind liimself by contract to dispose of his property by will to a particular person, and that such contract may be enforced in the courts after liis deceаse, either by an action for its breach against the personal representative, or, in a proper case, by bill in the nature of specific performance against his heirs, devisees, or personal representative. The validity of such agreements, as remarked by Mr. Freeman, in a recent note on this subject to the case of Johnson v. Hubbell, 10 N. J. Eq. (2 Stockton) 332; .s. c.,66 Am. Dec. 773 , 784, ‘is supported by an unbroken current of authorities, both English and American.’ ”
“No doubt can be entertained as to the nature of the paper, executed by Mrs. Lohman on December 1, 1881, and delivered by her to Mrs. Bolman, and purporting to be the testator's last will and testament. It is clearly a will in form, being testamentary in frame and verbiage. But it is also a contract, in essence and fact, being executed, as stated on the face of thе paper, ‘in consideration of past and future treatment,’ and, as shown by the bill, in furtherance of a previous parol agreement that it should be executed upon an admitted and specified valuable consideration. Oases are frequent in which instruments have been construed to be partly testamentary and partly contractual. And when based on a valuable consideration, a paper, in form a will, may, especially when delivered to a party1 interested, or to another for him, constitute legally and in fact an irrevocable contract.”
“The power to make such a will having been renounced, the attempt to exorcise it is deemed a fraud on the rights of the promisee under the contract, thus bringing into exercise another ground of equity jurisdiction. As said by Lord Camden in Dufoor v. Pеrran (quoted by Hargrave in his Judicial Arguments, vol. 2, p. 310), there is no difference between one’s promising to 'make a will in such a form and making such will with a promise not to revoke it.”
In the above case our court cites the case of Johnson v. Hubbell, 10 N. J. Eq. 332,
“There can be no .doubt but that a person may make a valid agreement, binding himself legally to make a particular disposition of his property by last will and testamеnt. The law permits a man to dispose of his own property at his pleasure, and no good reason can be assigned, why he may not make a legal agreement to dispose of his property to a particular individual, or for a particular purpose, as well by will as by a conveyance to be made at some specified future period, or upon the happening of some futurе event. It may be unwise for a man, in this way, to embarrass himself as to the final disposition of his property, but he is the disposer, by law, of his own fortune, and the sole and best judge as to the time and manner of disposing of it. A court of equity will decree the specific performance of such an agreement upon the recognized principles by which it is governed in the exercise of this branch of its jurisdiction. In the ease of Rivers v. Rivers’ Ex’rs, 3 Desaus. (S. C.) 195, 4 Am. Dec. "609, the court, in sustaining the propriety of a court of equity recognizing and enforcing such an agreement, very properly remarked that a man might renounce every power, benefit, or right which the laws give him, and he will be bound by his agreement to do so, provided the agreement be entered into fairly, without surprise, imposition,- or fraud, and that it be reasonable and moral.”
It is therefore clear from these authorities that one may, for a1 valuable consideration paid to him, renounce his absolute power to dispose of his estate at pleasure, and thus bind himself by an irrevocable contract. Counsel for appellee seem to insist that under the provisions of section 6174, Code 1907, the subsequent will necessarily revoked the former, citing Wilson v. Bostick,
It is further insisted, however, that the remedy is by specific performance, and we are referred to the case of Allen v. Bromberg,
We conclude, therefore, that the question was properly raised by the demurrer interposed, and that it was reversible error to overrule the same. The decree appealed from will therefore be reversed, and one here rendered sustaining the demurrer, and the cause will be remanded.
Dissenting Opinion
(dissenting). The purpose of this bill is to contest in chancery an instrument that was previously probated in the probate court of Houston county as authorized by Code, § 6207. The bill avers that the instrument so probated was not the last will and testament of Mrs. Walker, deceased, and that these complainants did not contest the same in the probate court. It is further averred that the decedent subsequently executed a testamentary instrument in which the complainants were named as beneficiaries, which later instrument operated and
effected,
according to the statute, Code, § 6174, as interpreted in Bruce v. Sierra,
That the bill has equity to avail of the right of contest declared in Code, § 6207, cannot, it seems to me, be a matter of doubt, unless it can be soundly ruled that Mrs. Walker by executing the. instrument of date December 17, 1907, absolutely, permanently, denuded hеrself of the right and power to make a subsequent will. It cannot, in my opinion, be so affirmed. Sumner v. Crane,
“The courts do not set aside the -will in such cаses [i. e., a will made in violation of a contract to dispose of property in a certain way], but the executor, heir, or devisee is made a trustee to perform the contract.”
It is a total misapprehension of the Bolman-Overall Case to read it as denying the power to make a will in violation of such a contract. The very language of that opinion refutes that notion. It is not wise or conservative to, at this late day, enter upon the hazard of a short cut that to take which violates rules of law that have long since become rules of property in this state.
My judgment is that the chancellor’s ruling was well grounded in reason and authority.
Addendum
On Application for Rehearing.
Counsel for appellants upon this application for rehearing do not take issue with the opinion of the court in this cause, in so far as thе same construes the bill as disclosing that the will sought to be set aside, and which has been duly admitted to probate, shows upon its face it was based upon a valuable consideration, moving from the beneficiary to the testa.trix, received and accepted by the latter. Nor is it controverted that an instrument may be properly construed as partly testamentary and partly contractual, and thаt when based on a valuable consideration, such an instrument, although in form a will, may, in fact, constitute legally an irrevocable contract. The insistence is, however, that, notwithstanding this situation, all wills are revocable under all circumstances, and that therefore the later will must prevail, and be admitted to probate. We are cited to the cases of Schumaker v. Schmidt,
It is of course conceded as a general rule that wills are revocable, and that, as said in Anderson, v. Eggers, supra, irrevocability would destroy its essence as a will. But these cases do not deny that the will may also upon its face disclose a contract based upon a valuable consideration, and thereby become binding upon the testator. Indeed, this is so recognizеd in the following lam *462 guage taken from Anderson v. Eggers, supra :
“Prom tliis mutability of wills it follows that, if the whole scope of any arrangement is fulfilled by the mere making of a will, then nothing legally binding upon him who signs the instrument is contemplated, the obligatory force of a contract is not intended, and he remains at liberty to change his mind. The claim that a legal obligation is assumed must be supported by something beyond the consent to make a will.”
The opinion then proceeds to discuss the facts leading to the execution of the will, and to show that there was nothing in the way of any contract involved in the transaction, saying:
“I think that under the circumstances the consent to make this will should not be deemed a contract. At best it is not certain that the parties meant what they did to amount to a legal obligation.”
This also seems to be recognized in Schumalter v. Schmidt, supra, where, in the discussion of the question, in the opinion, the court asks the following question:
“Is there anything of the essence of a compact in it which should interfere with its revocability?”
The appellants do not controvert the fact that the contractual feature of the will was binding upon the testatrix, but they insist that the only remedy for the beneficiary is in the nature of a bill for specific performance, or rather to establish a trust upon the property. Let us see, therefore, wha.t is the logical result of this insistence. Under the argument here urged, the court must set aside this will, which was of binding force upon the testatrix, and establish a later will in favor of the complainants as the last will and testament. But it must be conceded that the former instrument was binding in its contractual feature, and that therefore the respondent should be entitled to. relief by way of a cross-bill, and therefore the contractual feature of the instrument enforced by the establishment of a trust upon all the property owned by the testatrix at the time of her death. Certainly, if the instrument was binding upon the testatrix, he (Walker) would clearly be entitled to this relief. The result therefore, would be that the court would sustain the contention of the complainants to set aside the will in favor of respondent Walker, and in the same decree enforce the will by way of establishing a trust in favor of said Walker upon the entire estate of the testatrix owned by her at the time of her death. We respectfully submit this would be an anomalous situation in judicial procedure. An analysis of the cases cited by counsel for appellants will disclose that they are not in conflict with the conclusion we have here reached, and, indeed, no case directly in point has been called to our attention.
As said by this court in Bolman v. Ovеrall, noted in the original opinion:
“The power to make such a will having been renounced, the attempt to exercise it is deemed a fraud on the rights of the promisee under the contract, thus bringing into exercise another ground of equity jurisdiction.”
The complainants are not in a court of law, where a closer observance of strict rules is required; but they are in a court of equity, whose jurisdiction оver fraud and unfair dealing is given a very wide scope, and where the doctrine of equitable estoppel is often used with effective force/ They claim through the testatrix, who, as we construe the bill, has bound herself for a valuable consideration to the execution of this will, and to its irrevocability; and they, standing in her shoes, seek to have the court set aside the probate of this will, and establish a latеr one, made in violation of the contractual obligation in the former, and thus obtain the aid of a court of equity in establishing a fraud upon the rights of the respondent. This would manifestly be a perversion of the right to contest a will in a court of equity, and out of harmony with all equitable principles. But, as before stated, should relief be granted complainants, yet It must be conceded that the respondent Wаlker would have the right to obtain relief by-way of cross-bill, and establish a trust upon the property, thus placing him again in the same position he now occupies. Such a procedure would be but a display of judicial gymnastics, entirely out of place in a court of equity, which looks through form to substance, and which has been so effective in the establishment of the truth in the administration of justice.
A decision оf a court should be based upon common sense and sound logic as its foundation, and if these are lacking the superstructure must sooner or later fall. If the contractual feature of the instrument here involved is subject to impeachment for unfairness or fraud, or other cause, the door is open to complainants for its attack by way of amendment; but the will is here sought to be set aside upon thе sole ground that, notwithstanding its binding force and effect, it has been revoked by the execution of another will, and this upon a bill which shows upon its face that to do so would be a fraud upon the rights of the respondent.
We think the conclusion which we have here reached is rested upon sound reasoning *463 and common sense, and is not in conflict with any authorities to which our attention has been directed. We therefore adhere thereto, and the application for a rehearing will be denied.
Application overruled.