Chayka's Estate, In re
| Citation | 47 Wis.2d 102,176 N.W.2d 561 |
| Decision Date | 01 May 1970 |
| Docket Number | No. 219,219 |
| Parties | In re ESTATE of Evelyn Ada Flanagan CHAYKA, Decd. Jack C. CHAYKA, Appellant, v. Charles L. SANTINI, Admr. w/w/a of the Estate of Evelyn Ada Flanagan Chayka, deceased, Respondent. |
| Court | United States State Supreme Court of Wisconsin |
On October 9, 1961, George W. Flanagan and his wife, Evelyn Ada Flanagan, executed a joint, mutual and reciprocal will, in part providing:
'Second: We give, devise and bequeath to each other, respectively all such estate, right, title, and interest as we respectively hold, possess and enjoy in and to all real estate and personal property, wherever located, either owned by us jointly or severally, for his or her own use and benefit forever.
On January 19, 1964, George W. Flanagan died. On August 6, 1964, the will was admitted to probate.
On July 16, 1966, Evelyn Ada Flanagan married the appellant, Jack Chayka.
On July 18, 1966, Evelyn Chayka conveyed to herself and Jack Chayka as joint tenants a parcel of land which she had previously owned individually. On August 20, 1966, Evelyn Chayka conveyed a second parcel of land to herself and her second husband, Jack Chayka, as joint tenants.
On January 15, 1965, Evelyn Chayka had purchased United States bearer bonds with a face value of $32,000. Between the date of her marriage to Jack Chayka and her death, Evelyn transferred these bonds to Jack Chayka as a gift. During the same period, Evelyn transferred funds into a joint account in the names of herself and Jack Chayka.
On October 31, 1966, Evelyn Flanagan Chayka died. On March 7, 1967. her will was admitted to probate.
On motions for construction of the will, the trial court held that the will was not founded on contract and refused to order Jack Chayka to surrender bonds given to him by Evelyn Chayka. On appeal, this court held that the will was founded on contract. On remand to the trial court, on a motion brought by the administrator to overturn the conveyances of property to Jack Chayka by Evelyn Flanagan Chayka, the trial court ordered Jack Chayka to deliver the bearer bonds or to account for the proceeds thereof, and found properties placed in joint tenancy to be owned by Evelyn, and now by the administrator. Jack Chayka appeals.
L. William Connolly, Milwaukee, for appellant.
Roberts, Boardman, Suhr & Curry, for respondent; Santini, Jacobs & McDonald, Ironwood, of counsel.
We deal here with a joint, mutual and reciprocal will of a husband and wife where, upon the death of the husband, the survivor wife did not revoke the will but did transfer to her second husband as gifts much of the real and personal property awarded her under the will of her first husband.
The first Chayka appeal asked whether the joint will was founded on contract and thus binding on the survivor. We answered that a conclusive inference arises that the joint, mutual and reciprocal will was executed pursuant to a contract binding upon the survivor. 1
This second Chayka appeal asks whether the survivor of the two contracting parties may give away the property received by her under the joint will, thus defeating the intent of the mutual agreement and joint will that such property of the survivor shall go to the person designated by the agreement. We answer that transfer by gifts inter vivos of a substantial portion of the property received under the joint will must be held to be violative of the agreement of the parties and as a matter of law not made in good faith.
Where two parties contract to make a joint, mutual and reciprocal will, each pledges to the other that he will execute a mutually agreeable will, and will have that will in full force and effect at the time of death. The parties may express such contract in a separate document, state in the joint will that it is a contract, or the fact of contract may be conclusively presumed from the fact of the joint will being executed. 2 Such contract becomes partially executed upon the death of one of the parties to the agreement and the acceptance by the survivor of properties devised or bequeathed under the will and pursuant to the agreement to make such joint will. At this point the contract becomes irrevocable, the survivor having received the consideration promised. 3
The will, as a will, remains an ambulatory document, speaking only from the date of death of the maker, 4 but the mutual agreement of the parties, spelled out or conclusively presumed, when partially executed, becomes irrevocable. 5
Appellant contends that Evelyn Flanagan Chayka complied with her agreement with her first husband by leaving unrevoked the will giving all of the property she possessed at the time of her death to Robert W. Flanagan. This, as another court has well stated it to be, is 'a mere play upon words.' 6 What she in fact has done has stripped nearly all of the flesh from the bones, leaving only a skeleton for testamentary disposition to Robert W. Flanagan. This is a compliance in form, not in substance, that breaches the covenant of good faith that accompanies every contract, 7 by accomplishing exactly what the agreement of the parties sought to prevent.
It is understandable that a surviving wife, remarrying, may desire, even in a brief period of time between remarriage and her death, to give what she has to her successor husband. It is equally clear that this may well have been the exact predictable change of circumstances against which her first husband sought to provide in agreeing to the execution of a joint, mutual and reciprocal will. The duty of good faith is an implied condition in every contract, including a contract to make a joint will, and the transfers here violate such good faith standard by leaving the will in effect but giving away the properties which the parties agreed were to be bequeathed at the death of both to a designated party. The contract to make a will, once partially executed and irrevocable, is not to be defeated or evaded by what has been termed 'completely and deliberately denuding himself of his assets after entering into a bargain.' 8
It is urged that we hold the inter vivos transfers here involved to have been fraudulent as a matter of law. If the word fraudulent, as used in this context and applied to this situation, is precisely and correctly defined, 9 this could be said. In fact, it has been said. 10 Whether one takes the route of 'fraudulent as a matter of law,' or, as we have here done, accepted the requirement and standard of good faith in carrying out the contract of the parties, the result is that, as stated by this court:
'When two persons enter into an agreement to make, and do actually make, mutual and reciprocal wills by which each bequeaths her estate to the other, if she survives, and the survivor takes under such a will and accepts the benefit of such a mutual will and accepts the benefit of such a mutual agreement, equity will take such action as may be necessary to give effect to the mutual agreement that the property of the survivor shall go to the person designated by such agreement. * * *' 11
Here the trial court has ordered Jack Chayka to deliver the bearer bonds transferred to him by Evelyn Flanagan Chayka, or to account for the proceeds thereof. The trial court also ordered that the petition of Jack Chayka to terminate certain joint tenancies established by Evelyn subsequent to the death of her first husband be dismissed. The trial court found that the real and personal property involved in such transfers to have been the property of Evelyn Flanagan Chayka, and now the property of...
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