Rogers v. Rogers, 72154

• Decision Date: 19 October 1984
• Docket Number: No. 72154,72154
• Citation: 136 Mich.App. 125,356 N.W.2d 288
• Parties: Robert C. ROGERS and Vada B. Rogers, Plaintiffs-Appellants, v. Faith B. ROGERS, Robert C. Delaphiano and Patricia A. Delaphiano, Defendants-Appellees. 136 Mich.App. 125, 356 N.W.2d 288
• Court: Court of Appeal of Michigan — District of US

Page 288

356 N.W.2d 288

Robert C. ROGERS and Vada B. Rogers, Plaintiffs-Appellants, v. Faith B. ROGERS, Robert C. Delaphiano and Patricia A Delaphiano, Defendants-Appellees.

No. 72154.

136 Mich.App. 125, 356 N.W.2d 288

Court of Appeals of Michigan.

Submitted May 3, 1984.

Decided July 9, 1984.

Released for Publication Oct. 19, 1984.

[136 MICHAPP 127] G. Randall Price, Battle Creek, for plaintiffs-appellants.

David H. Tripp, Hastings, for defendants-appellees.

Before BEASLEY, P.J., and ALLEN and BREIGHNER, ^* JJ.

BEASLEY, Presiding Judge.

Plaintiffs, Robert C. Rogers and Vada B. Rogers, his wife, appeal as a matter of right from a judgment entered in favor of defendants, Faith B. Rogers, Robert C. Delaphiano and Patricia A. Delaphiano, his wife.

In the judgment, the trial court held that a deed executed and delivered by defendant-appellee, Faith B. Rogers, to her son and daughter-in-law, Robert C. and Patricia A. Delaphiano, on September 4, 1981, conveying a 39-acre farm in Bellevue Township, Eaton County, was valid. The trial court found that the joint and mutual will of [136 MICHAPP 128] Charles H. Rogers and Faith B. Rogers, dated April 20, 1961, did not prevent her from transferring this property for the reason that it became her sole and separate property as surviving tenant by the entirety upon the death of her husband, Charles H. Rogers, on March 8, 1969.

Charles H. and Faith B. Rogers were married in 1938, he being some 20 years her senior. The marriage was a second one for each, and each had three children from their respective prior marriages. No children were born of their marriage. On April 23, 1956, Charles and Faith Rogers entered into a land contract for the purchase of a 39-acre farm in Bellevue Township, Eaton County, which real property is the subject matter of this litigation. The land contract recited that as purchasers they would take the property as husband and wife, tenants by the entireties, which conveyance occurred when a warranty deed, pursuant to the land contract running to them, was delivered on June 15, 1967.

The April 20, 1961, joint will of Charles H. and Faith B. Rogers provides in part:

"SECOND, It is the will and desire of each of us, and the mutual wish and desire of both of us, that on the death of either of us, all of the property of the deceased party, whether real, personal or mixed, shall become the sole and separate property of the surviving party for his or her use so long as the survivor shall live.

"THIRD, Upon the decease of the survivor of us, we give, devise and bequeath any remainder and residue of our property to the following people, in equal shares, share and share alike, except each husband and wife will take one share:

"Mr. and Mrs. John Delaphiano of Bellevue, Michigan,

"Mr. Robert C. Delaphianio [sic ] of Battle Creek, Michigan,

[136 MICHAPP 129] "Mr. and Mrs. Kenneth Hill of R.2, Bellevue, Michigan,

"Mr. and Mrs. Robert C. Rogers, of 105 Cherokee, Battle Creek, Michigan,

"Mr. Andrew C. Rogers of Florida, and

"Mr. Donald C. Rogers of California."

On March 8, 1969, Charles H. Rogers died, and the joint will, which had been placed in the custody of the Barry County Probate Court, was delivered to Eaton County. There is not any indication that any probate proceedings were had.

On September 4, 1981, "in consideration of $1 and love and affection", Faith B. Rogers delivered a deed to the farm in Eaton County to her son, defendant Robert Delaphiano and his wife, defendant Patricia A. Delaphiano.

On September 29, 1981, plaintiffs, Robert C. Rogers (a son of Charles) and Vada B. Rogers, the wife of Robert C. Rogers, claiming as devisees to a one-sixth share of the farm, started suit in Eaton County, alleging that when his stepmother, Faith B. Rogers, conveyed the farm to the defendants Delaphiano, she violated the terms of the will which provided for only a life estate in the survivor and, therefore, breached the contract underlying the will. Plaintiffs sought to have the conveyance to the Delaphianos set aside and to enjoin Faith B. Rogers from making any further conveyances of the farm, other than of her life estate.

After a bench trial on the merits, the trial court ruled that the April 20, 1961, will was a joint and mutual will containing an aspect of contract and covered all of the property that each owned. The trial court held that when Charles Rogers died, a trust was created under the joint and mutual will for the benefit of Faith during her lifetime and, upon her death, the property would pass according [136 MICHAPP 130] to the residuary provision in the joint and mutual will. However, in its analysis, the trial court also held that with respect to property held by Charles and Faith as tenants by the entireties, such as the farm, it would only be included under the joint and mutual will if the language of the will specifically so provided. The trial court said that property held by Charles and Faith as tenants by the entireties was outside of the joint and mutual will, was not covered by the will and did not pass by virtue of it. Therefore, the trial court concluded that upon Charles's death, the farm became the sole and separate property of Faith, as the survivor of the tenancy by the entireties with her husband. As her sole property, she was entitled to transfer and convey it to the Delaphianos. Therefore, the trial court concluded plaintiffs had no cause for action and held in favor of defendants.

A will, although jointly executed by two persons, is not a contract, strictly speaking, since it is subject to change and represents simply a statement of the wishes of the testators as they exist at the time of execution. The terms of, or the benefits from, a will, however, may be the subject of a contract between the persons executing it. Moreover, a will jointly executed by two testators containing reciprocal bequests may be, under some circumstances, sufficient evidence to establish a contract to make the testamentary dispositions contained in such a will. ¹

A will which is executed by two testators pursuant to an agreement and is reciprocal in its bequests creates a contractual obligation; ² the mere fact alone that two identical wills are made by a [136 MICHAPP 131] husband and wife does not suffice to establish an oral agreement to make mutual reciprocal wills, each binding on the other. It is the contract to make a joint and mutual will, not the will itself, that is irrevocable by the survivor after the death of one of the parties to it. ³

As a general rule, a mutual or joint will may be revoked by either of the co-makers, provided it was not made in pursuance of a contract. But, where such a will has been executed in pursuance of a contract or agreement entered into by the testators to devise their separate property to certain designated beneficiaries, subject to a life estate or other interest in the survivor, it is generally held irrevocable when, upon the death of one, the survivor avails himself of the benefits of the devise in his favor. ⁴

Thus, for the terms of the will to be irrevocable upon the death of one of the parties, an agreement between the parties must be established. The general rule is stated as follows:

"A will jointly executed by two testators may disclose so clearly that it is the product of a contract between them, that the will itself is sufficient evidence to establish the contract." ⁵

In Getchell v. Tinker, ⁶ a husband and wife who owned property as tenants by the entireties, had marital difficulties. They entered into a settlement agreement in which they gave their property to their son. The court found the agreement to be testamentary and to be a joint will. The husband [136 MICHAPP 132] died first, and the wife gave a deed to the property to a third party just prior to her death. The son's heirs brought an action to set aside the deed and were successful in the trial court. The Supreme Court affirmed, saying:

"Paragraph 4 of the instrument of December 11, 1922, above quoted, is clearly testamentary in character, and the document in its entirety reveals it to have been executed pursuant to an agreement between the parties to dispose of the property involved in this litigation, in the event of death, in the manner specified in said paragraph 4. In this particular, it was, in legal effect, the joint and mutual will of the parties thereto. Appellant argues that the instrument cannot be construed as a joint and mutual will, claiming that there is no evidence of an existing agreement to make mutual wills. A reading of the document in its entirety is sufficient to disclose the existence of such an agreement. It clearly appears to have been the intention of the parties to make a contract by the terms of which all property owned by them was to be disposed of as provided therein, paragraph 4 to become operative in the event of death of either party and to stand as a testamentary disposition of whatever interest one party might have upon the death of the other. The contract incorporates therein the mutual will of the parties and stands as sufficient evidence of the agreement in pursuance of which the will was executed." ⁷

In Schondelmayer v. Schondelmayer, ⁸ a husband and wife both signed the same will, which made mutual provisions for each other, and then provided how their property would be divided among their three adult sons. After the wife survived, one of the sons sought specific performance of the alleged contract in the will and injunctive relief to prevent the widow from disposing of the joint [136 MICHAPP 133] property, which he claimed he was ultimately supposed to receive. The trial court granted injunctive relief, and the Supreme Court affirmed. The Court considered the following language of the document:

" 'It is hereby agreed that whichever is deceased first, be it Charles Schondelmayer or Cathrin Schondelmayer, the survivor shall pay the funeral expenses and all just debts of...