Contracts for joint, mutual, or joint and mutual wills.

The

species of contract to bequeath or to devise which results in a

damages measured by the value of the property contracted for. Frost v. Tarr, 53 Ind. 390 (1876). It is a pity that the law courts did not refuse to enforce any of these contracts, because it is often unfair to enforce them and yet law courts cannot discriminate. It is too bad that the law courts did not confine relief at law to a quantum meruit recovery; for the flexibility of equitable relief and equity's sound discretionary award or refusal of its remedies make it more possible for equity than for the law courts to deal satisfactorily with the situation. Compare Owens v. McNally, supra, where the plaintiff was denied relief in equity on a contract for all the estate of the deceased because of hardship on the deceased's widow, who was entitled to one-half the deceased's estate and who did not learn of the contract till after her husband's death, but where it would seem chancery might have given plaintiff the half of the estate to which, under the California statute of succession, apparently, the widow had no claim, if plaintiff preferred that to a quasi-contract recovery. In Burdine v. Burdine, supra, the contract was on record at the time of the marriage, so the widow was deemed not to be able to show hardship. Cf. Dillon v. Gray, 87 Kan. 129, 123 Pac. 878 (1912), where no hardship was shown. If in Owens v. McNally, supra, the contract had been in writing and recovery had been sought on it at law, the court of law would have been hard put to it to keep plaintiff from getting a judgment for the full money value of the estate, -see Roehl v. Haumesser, 114 Ind. 311, 15 N. E. 345 (1888), where a claim for breach of a contract to devise one-half of an estate was enforced, and such a judgment might have left the widow of the deceased penniless.

In Gall v. Gall, 64 Hun (N. Y.) 600, 19 N. Y. Supp. 332 (1892), in dismissing a complaint for specific performance, the judges advanced as an extra reason for their decision the illegality, as against his wife, or wife and children, of a man's agreement to will all his property to a third person. Barrett, J., for himself and also, it seems, for O'Brien, J., said (p. 606): "The parties, whatever their original understanding, could never have contemplated a restriction upon the decedent's right to marry or to provide for his children in case such marriage was fruitful. Nor could they have contemplated the taking, by the plaintiff, of the decedent's entire estate to the exclusion of any such future wife or child. If such an agreement had been made, it certainly would have been against public policy and void. Whatever agreement was made was necessarily subject to such possibilities and was limited by implication accordingly." And Van Brunt, P. J., said (p. 607):

"I do not think that the courts will enforce a contract whereby a party deprives himself of all power to bequeath or devise, by will, the property of which he is the owner at death, except in cases of adoption, where the contract is made for the benefit of an infant, and not to the exclusion of children."

That General Term decision was affirmed without opinion in 138 N. Y. 675, 34 N. E. 515 (1893). There is nothing contra in Heath v. Heath, 18 Misc. (N. Y.) 521, 42 N. Y. Supp. 1087 (1896), where the promise was expressly subject to the dower and distributive personal property interest of promisor's widow, nor in Hall v. Gilman, 77 N. Y. App. Div. 458, 79 N. Y. Supp. 303 (1902), or Winne v. Winne, supra, because in neither of the latter cases was there wife or child.

On the validity of contracts to devise all of one's property, see an article by Mr. Joseph H. Drake in 7 Mich. L. Rev. 318. The difficulty of all who deal with the enforcement of such contracts is to find a way to uphold them in general and yet to deny

joint will, or in a joint and mutual will, or in mutual wills calls for special reference.19 It was only gradually that a joint and mutual will met with judicial favor,20 and even to-day the weight of authority is against the probate of a joint will executed on the condition expressed in it that it is not to be effective as a will, or is not to be probated, until the death of the last surviving testator who executes it.21 The difficulty with a joint or joint and mutual

recovery, or to apportion it, in extreme cases. While it is true that equity may refuse specific performance, if it has jurisdiction, or give it only on equitable terms, that action of equity is not adequate protection in this country in many cases because of our rule of full damages at law.

19 A joint or conjoint will may be defined to be one executed by joint owners of property, or one executed jointly by the owners of separate property who treat the property bequeathed or devised or both, as joint for will purposes and accordingly leave it to the same beneficiary or beneficiaries. In re Cawley's Estate, 136 Pa. St. 628, 20 Atl. 567 (1890); Frazier v. Patterson, 243 Ill. 80, 90 N. E. 216 (1909). In Deseumeur v. Rondel, 76 N. J. Eq. 394, 399, 74 Atl. 703, 705 (1909), however, the phrase "joint will” is made to apply only where the property bequeathed or devised in the same document is held jointly, and the phrase “mutual will" is suggested as proper where the property is held separately, i. e., is owned in severalty.

A mutual or reciprocal or counter will, as it is variously called, is a will executed by two or more testators who own separate property or separate interests in the same property, and who make gifts to the survivor or survivors of them. "A mutual will is . . . in effect two [or more] wills, the disposition of each sharer being applicable to his or her half [or other share] of the joint property." Sir Robert P. Collier in Dias v. De Livera, L. R. 5. A. C. 123, 136 (1879). The same judge in Denyssen v. Mostert, L. R. 4. P. C. 236, 252 (1872), spoke of mutual wills as being in England "of rare occurrence." Where the reciprocal provisions are contained in separate wills executed by the several testators, the plural terms "mutual wills," "reciprocal wills," "counter wills," and "twin wills" are used.

A joint and mutual will is strictly a will executed by two or more testators and containing both reciprocal provisions and a gift to some third person beneficiary or beneficiaries.

A double will is a will executed by two or more testators who have no joint property to dispose of, who reserve full separate rights of revocation, and who have only sentimental reasons for desiring to execute one document instead of separate wills. In re Cawley's Estate, supra.

20 The prejudice against unconditional joint wills which made some courts refuse to admit such a will to probate either as the joint will of both parties or as the separate will of each (see Walker v. Walker, 14 Oh. St. 157 (1862), and Clayton v. Liverman, 2 Dev. & Bat. Law (N. C.) 558 (1837)) has practically disappeared. See Betts v. Harper, 39 Oh. St. 639 (1884); In re Davis' Will, 120 N. C. 9, 26 S. E. 636 (1897). See also Hill v. Harding, 92 Ky. 76, 17 S. W. 199, 437 (1891); Baker v. Syfritt, 147 Ia. 49, 54, 125 N. W. 998, 1000 (1910).

21 See Hershy v. Clark, 35 Ark. 17 (1879); State Bank v. Bliss, 67 Conn. 317, 35 Atl. 255 (1896). In the latter case it was held that the estate of the first to die must be administered and distributed as intestate estate. In In re Raine, 1 Swab. & Tr.

will conditioned in that way seems to be that many courts cannot understand how a will can be a will unless it takes effect as such eo instanti the testator dies and unless it can be probated promptly after his death.22 And with reference to a joint and mutual will there is a further difficulty due to loose language; for a number of courts say that such a will is essentially irrevocable by the survivor,23 and yet they are unable to get away from the fact that a will by its very nature must remain ambulatory, and hence revocable in the proper way by a competent testator. The real truth of the matter is that such joint and mutual wills, like separate mutual wills, retain the quality of revocability, and if they are revoked, must be denied probate; 24 but equity interferes to prevent

144, 146 (1858), in holding that the will, that of two brothers, could not be probated during the life of the survivor because all the gifts were to take effect "after both our decease," Sir C. Cresswell called the will "a very singular instrument." As an executor was appointed unconditionally, it would seem that probate might have been granted. In Peoria Humane Society v. McMurtrie, 229 Ill. 519, 82 N. E. 319 (1907), the will, so far as it was joint, was expressly conditioned to take effect as the will of both testators, if when both should be dead no individual will had been made, and, since the will as to the one who died first had been revoked by his marriage and was not republished by his subsequent individual will, the court properly refused probate of the joint and mutual will after the death of the survivor when it was offered as the latter's will. No opinion was expressed as to the validity of such a will.

In Schumaker v. Schmidt, 44 Ala. 454, 467 (1870), a joint will conditioned not to take effect until the death of the surviving testator is favored in a dictum. There B. F. Saffold, J., for the court said:

"The best summary of the law. . . is that two or more persons may execute a joint will, which will operate as if executed separately by each, and will be entitled to, and will require a separate probate upon the decease of each, as his will. But if the will so provides, and the disposition of the property requires it, the probate should be delayed until the death of both, or all, of the testators."

And see Baker v. Syfritt, supra; In re Lovegrove, 2 Swab. & Tr. 453 (1862). "But delicate and important questions in this connection remain unanswered; as, for instance, how the first decedent's estate shall meantime be settled and disposed of, and whether a title can in any sense devolve under his will." Schouler, Wills and Administration (1910), § 459.

22 See Hershy v. Clark, supra, 23, where it is said that "A will must take effect at the death of the testator, and not at a time still in the future."

23 See Frazier v. Patterson, supra, 85. In Stone v. Hoskins [1905] P. D. 194, 197, the same thing was said of such a will in case the survivor accepts the provision in his favor made by the deceased. But see Walker v. Gaskill, 83 L. J. R. (P. D.) 152 (1914).

24 A court of probate will either probate a will or deny it probate, regardless of the contract of the maker of the will, unless the contract is also a revoking will, executed as such, or else, as a contract, contains in itself an express revocation of the will which

the injustice of having the testator receive and enjoy property left to him solely because of his promise and then successfully violate on his part the contract under which he, as the survivor, was bound to let his will stand unrevoked.

Equity does not compel the probate of the revoked will, and the court of probate, uncompelled, neither would nor could probate

meets the statutory requirements for a revocation in writing. Lansing v. Haynes, 95 Mich. 16, 54 N. W. 699 (1893); Sumner v. Crane, 155 Mass. 483, 29 N. E. 1151 (1892); In re Keep's Will, 2 N. Y. Supp. 750 (1888); In re Gloucester's Estate, II N. Y. Supp. 899 (1890); Houck v. Anderson, 14 Ariz. 502, 131 Pac. 975 (1913); Wyche v. Clapp, 43 Tex. 543 (1875); Hobson v. Blackburn, 1 Add. Eccl. 274 (1822); Pohlman. Untzellman, 2 Lee Eccl. 319 (1757); Walker v. Gaskill, 83 L. J. R. (P. D.) 152 (1914). Cf. Everdell v. Hill, 27 Misc. (N. Y.) 285, 58 N. Y. Supp. 447 (1899). See notes in 27 L. R. A. N. s. 508; 37 L. R. A. N. S. 1196; 12 Prob. Rep. Ann. 63, 71, 72.

While Breathitt v. Whittaker, 8 B. Mon. (Ky.) 530 (1848), is supposed to deny the revocability of a joint will, the decision is really one in the law of powers. The will was a joint one in the exercise of a joint power, and it was held that as both donees had to unite in the exercise of the power both had to concur in revoking the ambulatory exercise of the power in the joint will.

In Ex parte Day, 1 Bradf. (N. Y.) 476 (1851), Bradford, Surrogate, said:

"An agreement to make mutual wills appears to be valid, and, after the death of either of the parties, irrevocable. . . . This curious subject is admirably discussed in Mr. Hargrave's luminous opinion in the Walpole case [Lord Walpole v. Lord Orford, 3 Ves. Jr. 401 (1797)]. It is there conceded, as was indeed established at law in the same case (7 D. & E. 138), that the effect of such an agreement could not be to make a will of that kind irrevocable, for from the very nature of the transaction testamentary dispositions are revocable. But it was contended a compact of that kind could be enforced in equity against the estate of the defaulting party after his decease, on the ground of an attaching equitable trust."

In Robinson v. Mandell, 3 Cliff. 169, 20 Fed. 1027, No. 11,959 (1868), Clifford, Circuit Justice, said (p. 1033):

"Where two persons agree each with the other to make mutual wills, and both execute the agreement, it is held that neither can properly revoke his will without giving notice to the other of such revocation. The death of one of the parties in such a case carries his part of the contract into execution, and the better opinion perhaps is that the other party, after that event, if the agreement was definite and satisfactory, cannot rescind the contract. Dufour v. Pereira, 1 Dick. Ch. 419; 2 Harg. Jurid. Arg. 272. Both wills, it is agreed, even in a case when the agreement between the respective testators is fully proved, are still in their nature revocable; but the doctrine is, that the parties are under a restriction, each to the other, not to revoke their respective wills so as to secure any undue advantage."

The statement by Clifford, J., quoted supra, that neither party to mutual wills can revoke without giving notice to the other, was based on Lord Camden's opinion in Dufour v. Pereira, 1 Dick. Ch. 419 (1769), and needs to be qualified even as an equity doctrine. In Stone v. Hoskins, supra, it is held that notice obtained by ascertaining that the other party has died without performing is enough if the survivor, after getting that notice, is able to alter his or her will also.

it. What equity does is to make the party who, because of the revocation, gets that for which he pays nothing, hold in trust for and convey to the party who would have taken under the will if it had remained unrevoked. It is sometimes said that the will is irrevocable in equity, 25 but the meaning of that simply is that while equity knows that the will has been revoked, it will nevertheless decree that the property shall be held for those who would have taken if the will had not been revoked.26

With reference to contracts to bequeath or to devise, whether they are mutual-will contracts or not, it should be noted that the remedy on such contracts is not confined to equity, and indeed exists in equity in the United States only if the legal remedy is in

25 See Brown v. Webster, 90 Neb. 591, 603, 134 N. W. 185, 190 (1912).

26 Dufour v. Pereira, supra; Bower v. Daniel, 198 Mo. 289, 95 S. W. 347 (1906). See Baker v. Syfritt, supra. But see Allen v. Bromberg. 163 Ala. 620, 50 So. 884 (1909) (Statute of Frauds not complied with).

For mutual wills, whether they are joint or several, to be irrevocable in the eyes of equity they must have been executed in pursuance of a contract, and not merely as a coincidence of the unrestrained intentions of the testators. Lord Walpole v. Lord Orford, supra; Coveney v. Conlin, 20 App. D. C. 303 (1902); Edson v. Parsons, 155 N. Y. 555, 50 N. E. 265 (1898); Albery v. Sessions, 2 Oh. N. P. 237 (1895); Coghlin v. Coghlin, 26 Oh. C. C. 18 (1904); Buchanan v. Anderson, 70 S. C. 454, 50 S. E. 12 (1905). The proof of such a contract must be clear. Wangea v. Marr, 165 S. W. 1027 (Mo., 1914).

In Drischler v. Van Den Henden, 49 N. Y. Super. Ct. 508 (1883), where pretermitted heirs were seeking to recover from their mother their share of their father's estate against the mother's claim of a mutual will arrangement between her and the deceased, Ingraham, J., said (p. 511):

"The fact that at the time of the execution of the will in question the defendant made a will leaving all her property to the testator, does not of itself make the wills mutual wills. In order to make a mutual will, the instrument or instruments must be executed by both parties under an agreement to make such disposition of the property of each, that the survivor will be entitled to the property of the one first dying, or the disposition of the property must be in the instrument executed by both of the parties." The last "or" clause should have been omitted to make the statement perfectly accurate. That the contract need not be proved by express language, however, see Everdell v. Hill, supra, reversed on other grounds in 58 N. Y. App. Div. 151, 68 N. Y. Supp. 719 (1901), and appeal dismissed in 170 N. Y. 581, 63 N. E. 1116 (1902).

The execution of wills by the parties to an oral contract to make mutual wills is not such part performance as to take the contract out of the Statute of Frauds. McClanahan v. McClanahan, 77 Wash. 479, 137 Pac. 479 (1913); Edwall v. Jesseph, 75 Wash. 391, 134 Pac. 1041 (1913). But see Brown v. Webster, supra, where in the majority opinion it was deemed that the wills were executed as “an integral and important part of the contract" and that "the execution of the wills satisfied the Statute of Frauds," though in a specially concurring opinion one judge refused to say more