Carle v. Miles

• Decision Date: 10 May 1913
• Parties: CARLE v. MILES ET AL.
• Court: Kansas Supreme Court

132 P. 146

89 Kan. 540

CARLE v. MILES ET AL.

Supreme Court of Kansas

May 10, 1913

Syllabus

The separate wills of two persons, which are reciprocal in their provisions giving the property of each to the other, are mutual wills.

Mutual wills, made in pursuance of an agreement in consideration of reciprocal gifts or devises, are not opposed to public policy nor contrary to the statutes of this state.

Appeal from District Court, Osage County.

Action by Bertha Miles Carle against Edwin T. Miles and others. Judgment for defendants and plaintiff appeals. Affirmed.

A. M Harvey and J. E. Addington, both of Topeka, for appellant.

T. M Lillard, of Topeka, and Stavely & Stavely, of Lyndon, for appellees.

OPINION

BENSON, J.

The question presented upon this appeal is whether the will of Zada N. Miles, deceased, is invalid for the reasons hereinafter stated. By agreement between the testatrix and her brother, mutual wills were executed by them. The testatrix by her will gave all her property to her brother, the defendant, and he at the same time executed his will by which he gave all of his property to his sister. The disposition of property in each will was made in consideration of a reciprocal provision in the other.

The plaintiff is an heir at law of the testatrix and contends that mutual or reciprocal wills made in pursuance of a contract wherein each will is the consideration for the other are invalid. This contention is based upon the argument that such dispositions of property are irrevocable, and that such instruments are not recognized as wills; that it is against public policy and the policy of our statutes that wills should be irrevocable.

"Mutual wills are those in which two or more testators mutually devise their property wholly or in part to one another." Underhill on Wills, § 11.

Separate wills of two persons which are reciprocal in their provisions are mutual. The wills under consideration here are of this class, but a joint will, which makes reciprocal gifts or devises, is also mutual. Page on Wills, § 66.

It was at one time held that mutual wills made upon reciprocal considerations were unknown to testamentary law, but the validity of such wills is now generally admitted. Schouler on Wills and Administration, § § 451-456; Frazier v. Patterson, 243 Ill. 80, 90 N.E. 216, 27 L. R. A. (N. S.) 508, and note, 17 Ann. Cas. 1003, and note.

"When these mutual or conjoint wills first came up in practice, the courts pronounced against them, as unknown to testamentary law. But the later and better opinion, in both England and the United States, treats the conjoint or mutual will as capable of probate, provided it has been executed with all the statute formalities requisite for other wills, and has not been revoked by some later instrument." Schouler, Wills and Administration, § 456.

The same rule is declared in 40 Cyc. 2112, where decisions are cited.

Day Ex parte, 1 Bradf. Sur. (N.Y.) 476, page 484, is a well-considered case before the surrogate of the city and county of New York in the year 1851, in which principles are discussed and authorities are reviewed concerning the validity of mutual wills. The court said: "Because the will happens to be made in conformity to some agreement, or contains on its face matter of agreement, or shows mutuality of testamentary intention between two persons, and a compact or intention not to revoke, in my judgment it is none the less a will. * * * The compact is not unlawful; it is not contrary to good manners; it will be sustained in a court of equity, on the ground that the will is valid at law, and, by the death of the first dier, has become irrevocable; unless there is some matter of form, some technical arbitrary rule springing out of the statute, or the necessary form and construction of a will, it is difficult to see why a conjoint will should not be admitted to probate on the death of either of the...