Flohr v. Walker

• Decision Date: 05 April 1974
• Docket Number: No. 4272,4272
• Citation: 520 P.2d 833
• Parties: Henry FLOHR, Jr., Appellant (Defendant below), v. A. B. WALKER, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 833

520 P.2d 833

Henry FLOHR, Jr., Appellant (Defendant below), v. A. B. WALKER, Appellee (Plaintiff below).

No. 4272.

Supreme Court of Wyoming.

April 5, 1974.

Harold M. Johnson, Rawlins, for appellant.

C. L. Bates and Gerald K. Russell, Rawlins, for appellee.

Before PARKER, C. J., and McEWAN, GUTHRIE, McINTYRE and McCLINTOCK, JJ.

Mr. Chief Justice PARKER deliered the opinion of the court.

Plaintiff, A. B. Walker, was granted a judgment in district court, holding that he was entitled to have certificates of deposit in the amount of some $44,000, formerly in the custody of defendant, Henry Flohr, Jr., who was decreed to have no interest in the certificates-neither party to cash, liquidate, or in any manner change them until further order of the court. Defendant, who had counterclaimed, appealed, requesting both a reversal of the judgment and the affirmative relief he had sought. Certain facts are not disputed.

Walker, at the time of the trial eighty-eight years of age, a former rancher and a longtime resident of Carbon County, was married to Madeline Annie Walker, who died in 1961. There were two children of the union, Leonard Walker, who died in 1957, and Alice Flohr, the wife of defendant, who died in 1967. After the Walkers' retirement from their ranch, they lived in Saratoga, their home being adjacent to the Flohrs; and their relationship was most amicable. On February 23, 1960, plaintiff and his wife executed a joint and mutual will, the germane portions as far as this suit is concerned, read as follows:

'We * * * do mutually in consideration of the other making their will, and of the provisions made herein in each other's behalf, agree that this, our last will and testament, cannot be changed or varied by either without the consent in writing of the other.

* * *

* * *

'THIRD. We give unto the survivor of the testator and tesatrix (sic), as the case may be, all personal and real property, of every nature and description, and wherever located, which either or both of us may now or hereafter own, except as noted in the fourth paragraph hereof.

'FOURTH. Alice Walker Flohr, our daughter, shall have Lots 5, 7, and 8, Block 3, Glenroy Addition, to the Town of Saratoga, Carbon County, wyoming, together with all improvements and personal property thereon located, excepting that Albert B. Walker, testator, should Madeline Annie Walker, testatrix, predecease him, have the use of the property in this paragraph mentioned, during his life time.

'FIFTH. Upon the death of both of us, all our personal and real property, of every nature and description, and wherever located, which we may now have or hereafter acquire, shall be given to our said daughter, Alice Walker Flohr, or should Alice Walker Flohr predecease us, then to our son-in-law, Henry Flohr, Jr.'

Although there was considerable evidence about the sources of the money with which the certificates of deposit had been purchased, there is for the purposes of this suit no necessity to go beyond the testimony of plaintiff:

'Q Now, at the time you and Mrs. Walker were alive you and she had all your property in joint tenancy, isn't that true? A That's right.

'Q And when she died you became the owner of the securities? A Yes, sir.

'Q And after that did you put your money in joint tenancy with your daughter, Alice? A Yes, sir.

'Q And then after Alice died you put it in joint tenancy with Henry (defendant), isn't that right? A That's right.

'Q Now, why did you use joint tenancies rather than leave it in your name individually and probate the estate? * * * A Well, of course I would have had it go through Court. If anything happened to me my estate would have had to go through the Courts again and the way it was put, with Henry's anme on there, he could do what he wanted to with it.

'Q And that was to save court costs, wasn't it? A Yes, you bet.'

Everything was harmonious between the parties until 1969 when plaintiff had an automobile accident and defendant thereafter prevented him from driving his automobile, which resulted in some misunderstanding; and plaintiff asked for the will and certificates. When this was refused, the suit resulted.

Plaintiff in 1972 drew a new will which would prevent defendant from receiving any of his estate and testified that if he secured possession of the certificates he would change them to the joint names of himself and someone other than Flohr.

Defendant argues that the judgment is contrary to law and not sustained by the evidence; that the joint and mutual will of plaintiff and his wife expressed a valid agreement, which under the circumstances since occurring makes defendant the sole beneficiary of the contract; and that plaintiff should be enjoined from making any gift, conveyance, or transfer which would be testamentary in character and prevent defendant from inheriting under the will or succeeding as surviving joint tenant. He concedes, however, that plaintiff should be permitted to call upon either the interest from the certificates or the principal amount to meet his legitimate needs during his lifetime.

Plaintiff argues that although the 1960 will was irrevocable without written consent during the testators' lifetime such consent was unnecessary after the death of either since the survivor would have absolute unconditional ownership of any property passing by the will with complete power of inter vivos or testamentary transfer. He says further that under paragraph five of the will the conditional bequest to Flohr takes effect only on the simultaneous deaths of testator and testatrix. We find no substantiation for these positions either in the brief or oral argument. We note but are unimpressed by the emphasis placed by counsel upon a statement from In re Stringer's Estate, 80 Wyo. 389, 343 P.2d 508, 522:

'* * * the deceased's obligations under the contract evidenced by the 1949 instrument must be discharged and satisfied during the administration of the deceased's (referring to the survivor upon his death) estate * * *.' (Emphasis and bracketed statement supplied by plaintiff.)

To us this statement in Stringer would seem clearly to mean that the obligations under the contract contained in the will must be discharged during the stated time so that the provisions thereof may be satisfied before the estate is otherwise distributed, but it does not imply that rights growing out of the contract came into existence only upon the death of the surviving joint testator.

Although the record here does not show the rationale for the judgment, plaintiff's counsel says:

'The Trial Court is its Memorandum Decision held that the 1960 joint Will, though not probated, is nonetheless effective, but is irrelevant to the issues herein because the specific bequests therein have been paid ¹ and the only property in the estate is the real estate as to which Appellee has a life estate. The Court noted that the terms of the 1960 Will were probably contractual but of no concern in this action since the source of the funds used to purchase the certificates of deposit were joint tenancy properties which passed to Appellee by right of survivorship and not by Will, and thus were unaffected by the provisions of the Will.'

It may be desirable during our analysis of the problem to bear in mind the viewpoint thus attributed to the trial court.

As previously indicated, plaintiff, without challenging the general contractual effect of the joint and mutual will under the interpretation announced by In re Stringer's Estate, supra, 343 P.2d at 514-515, urges that Flohr had no interest in Walker property and therefore no standing to secure relief in the action. In seeking to rebut defendant's implication that this court-based on the authority of 57 Am. Jr. Wills, § 718-could enforce a trust against the plaintiff to restrict his use and consumption of the certificates of deposit within his lifetime, plaintiff says that in none of the four more recent cases cited by that encyclopedic work ² was a constructive trust entertained during the lifetime of the surviving testator. We are unconvinced that this circumstance is of any significance. The important question is whether or not equity will permit the violation of a contract between the testators of a joint and mutual will. The impressing of a constructive trust is merely a tool of the court to work out an equitable interest in the simplest fashion. Bogert, Trusts and Trustees, § 471, p. 7 (2 ed.).

When considering the authorities which are claimed to deal with situations similar to the one at bar, we keep in mind that cases dealing with the basic problem ordinarily demonstrate the wording of the wills as well as the circumstances relating to properties to have influenced if not controlled the decisions.

McCuen v. Hartsock, Iowa, 159 N.W.2d 455, is somewhat difficult of analysis because of multiple bases for the decision. There the senior Hartsocks, being the parents of a son and daughter, made a joint, mutual, and contractual will; and in item five the husband had provided:

'I, Amos S. Hartsock, do hereby give, devise and bequeath all personal property of which I may die seized or possessed and wherever situated to Sadie B. Hartsock, the same to be her absolute property, but if she does not survive me then I give, devise and bequeath said property to my children * * * to share and share alike.'

The daughter,...