Boner's Adm'x v. Chesnut's Ex'r

• Decision Date: 07 March 1958
• Citation: 317 S.W.2d 867
• Parties: George BONER'S ADMINISTRATRIX (Emma Lou Boner), et al., Appellants, v. John A. CHESNUT'S EXECUTOR (J. Stephen Watkins, et al.), et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 867

317 S.W.2d 867

George BONER'S ADMINISTRATRIX (Emma Lou Boner), et al., Appellants, v. John A. CHESNUT'S EXECUTOR (J. Stephen Watkins, et al.), et

al., Appellees.

Court of Appeals of Kentucky.

March 7, 1958.

Rehearing Denied Dec. 12, 1958.

H. E. Hay, Frankfort, for appellants.

Joe G. Davis, Walter L. Brock, Jr., Lexington, James F. Clay, Danville, for appellees.

SIMS, Judge.

This is an appeal from a judgment of the Boyle Circuit Court declaring $25,000 in property given under an antenuptial contract to be an obligation of John A. Chesnut's estate, and confirming a deed made by his executor to P. H. Best under a contract Best had made with Chesnut concerning the sale of a business building.

On December 6, 1941, John A. Chesnut and his wife Mary made reciprocal wills with the same witnesses and drawn by the same attorney. At that time they had been married 50 years but had not been blessed with issue. Each of these wills leaves the testator's estate to the spouse for life; the remainder to be paid in numerous bequests, substantially the same in both wills, with the residue to be divided equally between his heirs and her heirs. Each will recites the testators 'have this day executed practically identical wills, except for a few minor bequests of our individual personalty.' On July 6, 1943, Mrs. Chesnut died. Her will was not probated until February 14, 1952, after her husband's death.

On July 10, 1943, Chesnut entered into a contract with P. H. Best giving him an option to purchase for $15,000 a store building owned by Chesnut by making a demand on the latter's personal representative within a year after his death. Best paid the $15,000 to Chesnut's executor and received a deed for the property on January 8, 1952.

On June 22, 1944, Chesnut entered into an antenuptial contract with Lillie B. Harmon. This contract recites Chesnut agreed to devise $25,000 in money and property to Miss Harmon, which was all she would get out of his estate. If she predeceased him, her heirs would not get any of this gift nor would he get any of her estate. She prom ised to leave the bulk of this devise upon her death to an Orphans Home. The parties to the contract were married July 6, 1944.

On October 11, 1950, Chesnut executed a second will, expressly revoking any will he had previously made. This will confirmed the terms of the antenuptial contract. Some of the bequests were the same as those made in the 1941 will, but this second will provided the residue was to go to Georgetown College instead of being divided between his and his first wife's heirs, as was provided in his reciprocal will. Chesnut died December 2, 1951, and his second will was probated nine days later.

This action was originally brought by the brother of Mary Boner Chesnut, the first wife, to enforce the terms of Chesnut's reciprocal will, to hold for nought his second will, the antenuptial agreement and the contract made with Best. The learned trial judge Hon. K. S. Alcorn, wrote a full and exhaustive opinion. Feeling we cannot do better, we adopt Judge Alcorn's opinion, although we do not use his exact words.

In this suit the beneficiaries of the reciprocal wills claim that same were executed pursuant to contract by the testators, and prior to the death of Mary B. Chesnut neither she nor John A. Chesnut revoked her or his reciprocal will, and the contract in question was binding upon John A. Chesnut after her death; consequently from her death his estate was impressed with a trust in favor of the beneficiaries of the reciprocal wills, and they are entitled to enforce the trust and to a prior lien on his estate superior to any claim of the widow under the antenuptial contract or under the will of October, 1950, and also contend they are entitled to have canceled the deed the executor of Chesnut's second will made to Best for the store building.

The widow and Georgetown College, the residuary beneficiary under the second will, insist there was no contract for the execution of the reciprocal wills, nor any consideration for such contract. Furthermore, that real estate being involved, any contract for its disposition would be within the statute of frauds and unenforceable, because no sufficient writing evidenced it, and that John A. Chesnut never accepted any benefits under the reciprocal will of Mrs. Mary B. Chesnut after her death.

The rule is that a contract for reciprocal wills need not be express and it may arise by implication from the circumstances which make it clear the parties had such wills in mind; or the contract may be established by the instruments themselves when on their face such contract is disclosed. Wright v. Wright, 215 Ky. 394, 285 S.W. 188; Price v. Aylor, 258 Ky. 1, 79 S.W.2d 350; Watkins v. Covington Trust & Banking Co., 303 Ky. 644, 198 S.W.2d 964; Annotations 169 A.L.R. 73; 57 Am.Jur. 'Wills' Sec. 694, p. 468. In the instant case each will recited the spouses had 'this day executed practically identical wills except for a few minor bequests.' Without going into details, the terms of the wills force us to the conclusion that these two wills were executed as a result of a plan...