Manrow v. Deveney

• Decision Date: 14 April 1941
• Docket Number: 16590.
• Citation: 33 N.E.2d 371,109 Ind.App. 264
• Parties: MANROW et al. v. DEVENEY et al.
• Court: Indiana Appellate Court

33 N.E.2d 371

109 Ind.App. 264

MANROW et al. v. DEVENEY et al.

No. 16590.

Appellate Court of Indiana, in Banc.

April 14, 1941

Mountz & Mountz, of Garrett, for appellants.

Atkinson & Sanders, of Auburn, for appellees.

FLANAGAN Judge.

On March 23, 1916, John Joel Eakright and Acelia Eakright, his wife, executed a will which appellants claim was a joint and mutual will. In 1923 John Joel Eakright died, the said will was admitted to probate as his last will and testament and his widow, Acelia Eakright, took under the will.

On November 24, 1933, Acelia Eakright executed a new will disposing of all of her property differently than did the prior will. She died on February 6, 1937, and both wills were offered for probate.

This action was brought by appellants as beneficiaries under the will of 1916 to resist the probate of the will of 1933 on the theory that the will of 1916 was a joint and mutual will could not be revoked, and should be admitted to probate as the last will and testament of Acelia Eakright.

We recognize the enforcibility of the contractual obligation created by a joint and mutual will made pursuant to agreement. Sample v. Butler University, 1937, 211 Ind. 122, 4 N.E.2d 545, 5 N.E.2d 888, 108 A.L.R. 857.

But this is not an action to enforce a contractual obligation. It is an action to resist the probate of a will.

The law on this subject is well expressed as follows in Atkinson on Wills at page 176: "Frequently joint or mutual wills are made in pursuance of an agreement or compact not to revoke them. In the case of such wills executed in accordance with a contract it is important to distinguish between the concept of wills and that of contracts. The Anglo-American law has no separate concept of 'will made in pursuance of contract'; we must treat the will part as a will and the contract part as a contract. Hence, viewed in the aspect of a will, such instruments do not differ from other wills. In order to be effective, they must be admitted to probate and they are revocable although there has been an agreement not to revoke. The matter of the contractual aspect does not arise upon probate but only when the agreement is sought to be established as a claim against the estate, or in a proceeding at law or in equity against the representatives of the deceased testator. This is the sound and orthodox method of treatment of the question."

The rule is similarly expressed in 69 C.J. p....