Bettencourt v. Bettencourt

• Decision Date: 31 May 1972
• Citation: 362 Mass. 1,284 N.E.2d 238
• Parties: . Supreme Judicial Court of Massachusetts, Dukes County
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 238

284 N.E.2d 238

362 Mass. 1

Walter E. BETTENCOURT et al. v. Edna O. BETTENCOURT.

Supreme Judicial Court of Massachusetts, Dukes County.

Argued March 9, 1972.

Decided May 31, 1972.

Franklin N. Cunningham, Boston, for plaintiffs.

Robert J. Morrissey, Boston, for defendant.

Before TAURO, C.J., and CUTTER, SPIEGEL, REARDON, QUIRICO, BRAUCHER, and HENNESSEY, JJ.

CUTTER, Justice.

The plaintiffs, who are all children or stepchildren of Edna O. Bettencourt, ¹ by this bill seek to require her to convey to them certain parcels of real estate in Edgartown in accordance with undertakings which the plaintiffs assert Edna made or confirmed in a will executed by her substantially in the same form, and on the same day (February 14, 1967), as a will made by Anthony. A demurrer ² was overruled.

A Superior Court judge made a report of material facts. He concluded that the wills of the widow and her late husband in fact 'were wills' which (as to her will) Edna 'could revoke . . . at her pleasure.' By final decree, the bill was dismissed. The children appealed. Designated evidence is reported. See S.J.C. Rule 1:02, 351 Mass. 732--734; 353 Mass. 804. The facts are stated (except as otherwise indicated) on the basis of the report of material facts.

Edna married Anthony in 1947. Including their children by earlier marriages, they had five, children in all (fn. 1). Anthony and Edna made several trips to California. On a trip in 1966 they had narrowly escaped several automobile accidents. They planned to go to California again in 1967. They decided to provide for the children by will 'in case they were both killed during the trip.'

A lawyer (who had done earlier work for Anthony and Edna) made a draft will for each of them and then met with them. He told them 'that they could change the will at any time.' The lawyer 'did not inform . . . (them) that he intended to draw a trust, or an agreement.' The instruments were signed simultaneously. Edna's will was placed on deposit (G.L. c. 191, § 10, as amended by St.1960, c. 118; and §§ 11 and 12) with the register of probate.

On the next day Anthony and Edna left for California. While there they separated. Edna returned in the spring to Martha's Vineyard. She consulted a lawyer and began divorce proceedings in April, 1968. In November, 1968, Edna went to the court house, took her will there on deposit, 'put several crosses through' it, and wrote 'Revoked' on each page.

In December, 1968, a hearing was held on Edna's libel. '(N)o decree was ever issued.' ³ Anthony died on March 27, 1970.

Edna's will contained contained the following language which gives rise to the present controversy: 'My husband, Anthony . . . and I own as joint tenants the real estate and personal property described in the paragraphs below . . . A, B, C, D, E and F. We have agreed with one another, in consideration of identical promises of each to the other, that following the death of the first of us to die the survivor will dispose of said jointly owned property in the manner stated in said paragraphs. By this will, and by an identical will made today by my husband, each of us confirms the agreement and provides for the disposition of said property and of our respective interests therein as joint tenants and as a survivor in the manner stated in said paragraphs; and each of us agrees to execute whatever additional deeds or other instruments may be necessary to accomplish the agreed results.'

After the passage just quoted follow five paragraphs marked A to E, inclusive. Each paragraph describes a parcel of land in Edgartown and gives it to one or more of the children (in one instance subject to a life interest in the survivor of Anthony and Edna). ⁴ The provisions of parts. A to E, inclusive, indicate that all or most of the parcels of real estate referred to in those paragraphs were owned by Anthony and Edna as tenants by the entirety. ⁵

The judge admitted without any exception being saved (or any objection being made except on the ground of materiality), Edna's testimony about what the lawyer told Anthony and her before the will was signed. She testified that 'when we were making the will up . . . (the lawyer) said that we could have this will added to or changed in any way whatsoever whenever each one of us wanted to do it--we didn't have to do it together, or anything like that. Each one could change it according to his own will.' She denied that the lawyer ever told her 'that the will could not be revoked' or that he ever used the word 'trust' or 'agreement.' Also without exception (and over only general objections) she gave testimony that she 'believed that . . . (she) could change the will or do as . . . (she) pleased with it at any time,' and that her husband never told her or (to her knowledge) anyone else that 'his understanding was any different from' hers. She further testified that the 'will was made up specifically for our trip to California, with the understanding that I could change or do anything that I wanted to with it at any time if I was able to get back.' ⁶

The lawyer testified that he had been asked 'to prepare a document which would provide that the survivor (of Anthony and Edna) would not have an uncontrolled and absolute ownership of the properties which are involved in the agreement, to do with as the survivor saw fit.' Such an arrangement 'they did not want . . ..' Instead, he said, they wanted 'a provision . . . allocating the properties to the children . . . upon the death of the first one of them to die.' The lawyer denied that he ever told Edna 'that she could change this document at any time.'

1. The instrument, stating that it is Edna's last will (found by the judge to be identical to that of Anthony), is (with respect to the recital of an agreement with Anthony about disposal of the Edgartown real estate) somewhat unusual in Massachusetts. See Newhall, Settlement of Estates (4th ed.) § 342, p. 397 ('There is no law or practice in Massachusetts as to either joint or mutual wills'). See also Lombard, Probate Law and Practice, §§ 1621, 1628. Compare, however, Young v. Young, 251 Mass. 218, 220--222, 146 N.E. 574. Elsewhere the law is by no means uniform, but there is substantial authority that mutual or reciprocal wills, particularly those of a husband and wife, may be based upon, reflect, or express a prior or simultaneous contract (not unilaterally revocable) to dispose of property in a specified manner. ⁷ The mere execution of simultaneous and reciprocal wills, however 'does not, of itself, show that the parties had entered into a contract to make such wills' or other disposition. See Page, Wills (Bowe-Parker ed.) § 10.4; ⁸ Sparks, Contracts to Make Wills, 29--30. See also Gray v. Perpetual Trustee Co. Ltd. (1928) A.C. 391, 400--401; Re Oldham, (1924) 1 Ch. 75, 87--89. On the other hand, some cases elsewhere allow enforcement of adequately proved agreements (sometimes set out or referred to in wills) to make dispositions of particular property. See e.g. Brewer v. Simpson, 53 Cal.2d 567, 587--589, 2 Cal.Rptr. 609, 349 P.2d 289; Helms v. Darmstatter, 56 Ill.App.2d 176, 182--187, 205 N.E.2d 478; Estate of Wade, 202 Kan. 380, 385--390, 449 P.2d 488 (will held contractual despite absence from it of language to that effect); Wimp v. Collett, 414 S.W.2d 65, 70--77 (Mo.); Geiger v. Geiger, 185 Neb. 700, 702, 178 N.W.2d 575 (agreement in wills); Tutunjian v. Vetzigian, 299 N.Y. 315, 319-- 321, 87 N.E.2d 275 ('resulting trust' held to result from contract); Rubenstein v. Mueller, 19 N.Y.2d 228, 231--234, 278 N.Y.S.2d 845, 225 N.E.2d 540; Godwin v. Wachovia Bank & Trust Co., 259 N.C. 520, 529--530, 131 S.E.2d 456 (simultaneously executed wills, incorporating an invalidly executed trust agreement, held evidence of a contract); Olive v. Biggs, 276 N.C. 445, 464--465, 173 S.E.2d 301. Cf. Foley v. Elliot Community Hosp., 98 N.H. 186, 190, 96 A.2d 735. ⁹

The uncertainties concerning the effect, interpretation, and consequences of joint, mutual, or reciprocal wills are strong reason for strictly construing such instruments, in effect, as presumptively not intended to make or reflect a contract for a particular disposition of property. In the absence of explicit language compelling such a construction, simultaneously made wills with reciprocal provisions, we think, should not be interpreted as expressing a contractual obligation. ¹⁰ Even if a contractual obligation in fact is intended in such circumstances as here appear, we are of opinion that the desired result is likely to be accomplished more clearly (and with more complete understanding by the parties) by the use of a carefully expressed trust instrument rather than by the use of wills.

The asserted agreement (at least apart from par. F, fn. 5, supra) is not one to make a devise at Edna's death or to make a will (see G.L. c. 259, § 5, as appearing in St.1965, c. 560, § 1, and § 5A, inserted by St.1965, c. 560, § 2), ¹¹ but is one to make the inter vivos dispositions which each will stipulates. See c. 259, § 1. The disposition in Edna's will, if it is determined that a contract was intended, in terms is specific enough to constitute a memorandum. It is signed by Edna, the party to be charged. It states the terms of the 'agreement' between her and Anthony, and indicates the consideration. It proposes inter vivos transfers of specifically described parcels. The statute of frauds thus can be satisfied by the writing contained in the will. See Herr Estate, 400 Pa. 90, 96, 161 A.2d 32; Corbin, Contracts, § 509. See also Tzitzon Realty Co. Inc. v. Mustonen, 352 Mass. 648, 651--654, 227 N.E.2d 493; Potter v. Bland, 136 Cal.App.2d 125, 129--132, 288 P.2d 569.

We recognize that the references in Edna's will to be existence of an agreement are somewhat unusual in Massachusetts, and that there exists uncertainty whether (a) they reflect a binding contract or trust rather than (b) an informal intra-family understanding...