Canada v. Ihmsen

• Decision Date: 10 November 1925
• Docket Number: 1216
• Citation: 240 P. 927,33 Wyo. 439
• Parties: CANADA v. IHMSEN ET AL [*]
• Court: Wyoming Supreme Court

240 P. 927

33 Wyo. 439

CANADA v. IHMSEN ET AL ^[*]

No. 1216

Supreme Court of Wyoming

November 10, 1925

ERROR to District Court, Albany County, VOLNEY J. TIDBALL, Judge.

This was an action by Thomas J. Canada against F. J. Ihmsen as administrator with the Will annexed of the Estate of Wiseman M. Hill, deceased and another, to enforce an alleged contract for the execution of mutual Wills. Other material facts are stated in the opinion.

Affirmed.

M. E Corthell for plaintiff in error.

The authorities cited by defendants in error in support of their contention that the agreement is within the Statute of Frauds and unenforceable are clearly distinguishable upon the facts. Their leading case Gould vs. Mansfield, 103 Mass 408 turned upon the question of consideration and lack of performance. A contract to make mutual Wills followed by the execution of Wills is sufficient to take the case out of the Statute of Frauds; Brown vs. Webster (Nebr.) 134 N.W. 185; Carle vs. Miles (Kan.) 132 P. 146; Rastetter vs. Heeninger, (N. Y.) 108 N.E. 210; Bedal vs. Johnson (Ida.) 218 P. 641; In re Burke's Estate, (Ore.) 134 P. 11; Anderson vs Anderson (Ia.) 164 N.W. 1042; Baker et al. vs. Daniel, et al, (Mo.) 95 S.W. 347; Chambers vs. Porter (Ia.) 183 N.W. 431; Stevens vs. Myers (Ore.) 177 P. 37; Prince vs. Prince (Wash.) 117 P. 255; Brown vs. Johanson (Colo.) 194 P. 943; the case of In re Edwall's Estate cited by defendant in error and Brown vs. Webster supra, probably represents a phase of contrarity of opinion to be found in the authorities on the question of consideration. In our opinion the Statute should be qualified and held to mean that the power to make a Will includes the power to revoke the will, except when such Will is made pursuant to a contract; Monson vs. Monson (Calif.) 162 P. 90; Stewart vs. Smith (Calif.) 91 P. 667; Bruce vs. Moon, (So. Carolina) 35 N.E. 415; Mayfield vs. Cook, (Ala.) 77 So. 713; Baker vs. Syfritt et al, 125 N.W. 998; Huffine vs. Lincoln (Mont.) 160 P. 820; the transaction here was a mutual business compact carried out by the execution of mutual Wills; Chambers vs. Porter et al. (Ia.) 183 N.W. 431; Thompson on Wills 28; In Re McGinley's Estate, (Pa.) 101 A. 807; Brown vs. Johanson (Colo.) 194 P. 943; Stewart vs. Todd (Ia.) 173 N.W. 622; the execution of each Will was a consideration for the other; Frazier vs. Patterson (Ill.) 90 N.E. 218; Torgerson vs. Hauge (N. Dak.) 159 N.W. 7; Carle vs. Miles (Kan.) 132 P. 146; Prince vs. Prince (Wash.) 117 P. 257; Baker vs. Syfritt (Ia.) 125 N.W. 998; such execution indicates an intention to carry out a previous oral agreement. The following cases involved Wills made pursuant to oral agreements to marry; Farrell vs. Stanley (Kans.) 112 P. 155; Freitas vs. Freitas (Calif.) 159 P. 611; Adams vs. Smith, 155 N.Y.S. 873; the execution of a Will is part performance; Stewart vs. Todd supra; Swingley vs. Daniels (Wash.) 212 P. 731; and is considered a part of the contract; Brown vs. Webster (Nebr.) 134 N.W. 189; Naylor vs. Shelton (Ark.) 143 S.W. 117; Whiton vs. Whiton (Ill.) 53 N.E. 730; Anderson vs. Anderson (Ia.) 164 N.W. 1043; Chambers vs. Porter (Ia.) 183 N.W. 434; Prince vs. Prince supra; the two Wills should be taken together as constituting a written contract; North Platte Milling Co. vs. Price, 4 Wyo. 293.

E. P. Blakemore for defendant in error.

Parol evidence is inadmissible to show intent of the testator as to contingencies not appearing on the face of Will; Schouler on Wills, 292; Sewell vs. Slingluff, 57 Md. 537; contingencies affecting land must be in writing; Bispham on Equity, (4th ed.) Chap. 2, p. 95; neither of the Wills import consideration of a contract to make mutual Wills; Schouler on Wills 570; since either Will may be revoked by the maker; Frazier vs. Patterson supra; mutual Wills made pursuant to a valid contract are not revokable; In re Keep 1 Connoly 104; 17 N.Y.S. R. 812; the Wills did not take the case out of the Statute; McClanahan vs. McClanahan (Wash.) 137 P. 479; plaintiff in error is incompetent to testify 5807 C. S. Rice vs. Wigley (Ida.) 61 P. 290; Woods vs. Fox (Utah) 32 P. 48, 166 U.S. 641; Paddock vs. Adams (Ohio) 46 N.E. 1068; as to the contention of plaintiff in error, that the execution of mutual Wills constituted a part performance of an oral contract to which the Statutes of Fraud is not applicable, the authorities are classified about as follows:

(a) Oral agreements to devise real estate with no writing are void; Wallace vs. Long, 105 Ind. 522.

(b) Mutual Wills remaining unrevoked until death of one maker and the survivor causes probate of the other, accepts benefits, and later revokes his own will then equity will relieve; Carmichael vs. Carmichael (Mich.) 40 N.W. 173; Frazier vs. Patterson (Ill.) 90 N.E. 216 and cases cited.

(c) Oral agreements to devise by Will in consideration of service to be rendered and is rendered, and the one for whom rendered, either fails to make a Will or revokes one made, then services may be compensated for in money or a trust impressed; Stellmacher vs. Bruder (Minn.) 95 N.W. 324; Hamilton vs. Thirston (Md.) 48 A. 709; In Re Sheldon's Estate (Wis.) 97 N.W. 524 and other cases.

(d) Oral agreements to devise in consideration of a conveyance made pursuant to a valid contract are enforceable; Johnson vs. Hubbell (N. J.) 2 Stockton's Chap. 332; also mutual Wills made by husband and wife under circumstances indicating a prior oral agreement the Statute of Frauds is held not involved; Stevens vs. Myers (Ore.) 177 P. 37; Anderson vs. Anderson, (Iowa) 164 N.W. 1042.

(f) Agreement to devise in consideration of marriage and after marriage a Will is executed, is held in at least one state a sufficient performance to satisfy the Statute of Frauds; Lowe vs. Bryan (Ga.) 76 Am. Dec. 673.

(g) Oral agreements to make mutual Wills, which are executed without reference to contract and one party during the lifetime of both revokes without notice and dies, courts are divided, but the majority seem to hold such contracts void; Gould vs. Mansfield supra; In Re Edwall's Estate (Wash.) 134 P. 1041; and cases cited. A contract to make a Will of land cannot be established by parol evidence. And a subsequent Will revoking the former voids the agreement; Burns vs. McCormick, 233 N.Y. 230; and cases cited apparently constituting the clear weight of authority; 25 R. C. L. p. 585; Baumann vs. Kusian (N. S.) 44 L. R. A. 757. In the case at bar there was a subsequent Will. Wills of the same date containing the same mutual provisions made by husband and wife, are generally upheld where the rights of children are involved; Stevens vs. Myers supra; Anderson vs. Anderson supra, but not otherwise 40 Cyc. 2118, 27 L. R. A. N. S. 511 and note. The contract must be in writing if land is involved; the execution of the Wills adds nothing, for the reason that, the right to property is derived from a valid contract; 25 R. C. L. 306; Canada has not been prejudiced; he has given up nothing and he has destroyed his Will. The transaction was clearly within the Statute of Frauds; Knoff vs. Grace, 68 Colo. 529; Doty vs. Doty, 118 Ky.

BLUME, Justice. POTTER, C. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This is an action brought by Thomas J. Canada, plaintiff, against the administrator, with the will annexed, of the estate of Mrs. Wiseman M. Hill, deceased, and Samuel W. Scott. The property involved in this case is Lot 15 in Block 243 in the city of Laramie, which was owned by said deceased during her lifetime and which she devised to said Samuel W. Scott by her last will. The plaintiff asked to have the defendants declared to be trustees of the said property, that the contract hereinafter mentioned be enforced, and that defendants be compelled to make a conveyance thereof to the plaintiff, alleging that about September 1, 1918, the plaintiff was the owner of Lot 16 in Block 243 in the city of Laramie, adjoining Lot 15 aforesaid, and that he and said decedent entered into a mutual agreement at the date last mentioned, each agreeing to make a will leaving, at death, the property so owned by them respectively to the other, so that the survivor might have the two lots on which to build, one of the lots being too small for such purpose; that pursuant to said agreement plaintiff and said deceased executed their respective wills, reciprocally devising to each other their respective properties above mentioned; that on December 11, 1919, said deceased, fraudulently and without notifying plaintiff, attempted to rescind the said agreement by making a new will, revoking the former will and devising her property to said Samuel W. Scott, as above mentioned; that said new will was duly admitted to probate on October 14, 1920; that plaintiff fully performed all of the terms of the said agreement which he was to fulfill.

Issue was duly joined; the case was tried and judgment was rendered on June 4, 1923, in favor of the defendants and against the plaintiff. From such judgment said plaintiff, who will continue to be so denominated herein, has brought this case here by proceedings in error. The court found that the oral contract set up in the petition had been duly established by testimony other than that of plaintiff, but that oral proof of such contract was not admissible on account of the Statute of Frauds, the defense under which was set up by the defendants. Plaintiff and the deceased were not related to each other, and there was no consideration for the execution of the mutual wills unless the making of the contract and the execution of the wills is sufficient to satisfy the law in that respect.

1. Wills are, as courts express it, ambulatory in their nature that is to say revocable at the pleasure of the testator until his death. In the absence of a...