Mcdonald v. Polansky Block v. Same.

• Decision Date: 22 November 1944
• Docket Number: No. 4823.,4823.
• Citation: 153 P.2d 670,48 N.M. 518
• Parties: McDONALDv.POLANSKY et al.BLOCK et al.v.SAME.
• Court: New Mexico Supreme Court

48 N.M. 518

153 P.2d 670

McDONALD

v.POLANSKY et al.BLOCK et al.

v.SAME.

No. 4823.

Supreme Court of New Mexico.

Nov. 22, 1944.

Appeal from District Court, Bernalillo County; Albert R. Kool, Judge.

Suit by Mary Valverde McDonald against Ernest A. Polansky, as executor of the estate of Anna Block, deceased, consolidated with suit by James Marshall Block and others against Ernest A. Polansky, as executor of the estate of Anna Block, deceased, and others, for specific performance of an alleged oral contract to make a joint or mutual will. From a judgment dismissing the complaint, the plaintiffs appeal.

Affirmed.

Revocability is an essential element of a will.

Fred E. Wilson, of Albuquerque, for appellants Block et al.

Rodey, Dickason & Sloan and Frank M. Mims, all of Albuquerque, for appellant McDonald.Iden, Adams & Johnson and Simms, Modrall & Seymour, all of Albuquerque, for appellees.

MABRY, Justice.

We have here two suits seeking specific enforcement of an alleged oral contract or agreement to make a joint, or mutual will, the cases being consolidated for trial and appeal. Defendants contend that while the wills are written as one document and may be referred to in the discussion as “joint,” or “mutual,” or “joint and mutual,” that each will is, in fact, complete in itself and that no attempt is made by either testator to make joint disposition of their property after the death of the survivor, and that the language of the will, or wills, moreover, bears no such interpretation; that there is neither evidence aliunde or to be found in its terms which would support the contention that a contract in this connection was ever entered into. The answers to both complaints deny that the wills were executed in pursuance of such contract or agreement, and alleged that at the time of their execution it was clearly understood and agreed between the testators that the survivor would be free at any time to make a different will and to otherwise dispose of all property left upon the death of the one. The issues were tried to the court, which held that the wills were not executed pursuant to any such contract and dismissed the complaints. Plaintiffs appeal.

The Plaintiffs in both suits were beneficiaries under the first wills and are complaining because, after the death of John B. Block, one of the testators, his widow, Anna Block, after accepting benefits under the original will or wills, made a subsequent and different will making substantially different disposition of the property left to and owned by her at the time of her death. Appellants will hereinafter be referred to as Plaintiffs and Appellees will be referred to as Defendants. No significance is to be attached to the fact that in some places, we, like counsel, might employ interchangeably the terms “will” and “wills” in reference to the first will of May, 1939.

[1][2][3] This is not a suit to set aside an irrevocable will, if there could be such. All parties recognize that revocability is an essential element of a will (Ward v. Ward, 96 Utah 263, 85 P.2d 635; Notten v. Mensing, 3 Cal.2d 469, 45 P.2d 198; Matter of Higgins' Will, 264 N.Y. 226, 190 N.E. 417; In re Krause's Estate, 173 Wash. 1, 21 P.2d 268), but that is not to say that the courts will not enforce a contract to make a will; an action lies either at law or in equity, and relief will be granted against one who has accepted benefits and thereafter violated the agreement from which the joint will resulted. And, it is likewise not disputed that Plaintiffs, as beneficiaries, might enforce by specific performance any rights they may have had in the premises, as here attempted. Schauer v. Schauer, 43 N.M. 209, 89 P.2d 521.

Although some four points are noticed and argued under the assignments of error, Plaintiff McDonald doubtless correctly appraises the issues presented when she says, in her brief, the only question raised by this appeal is as to the sufficiency of the evidence to support the court's finding that the first will of Anna Block was not executed pursuant to an oral contract or agreement. There seems to be no dispute as to whether the trial court was entitled to consider evidence going to the matter of an oral contract aliunde the terms of, and expressions found in, the will itself. All parties introduced and relied upon such evidence in this connection.

John B. Block and Anna Block, an aged and childless couple, owned considerable property in New Mexico, accumulated during a long married life. On May 12, 1939, they executed mutual wills, embodied in one instrument, by the terms of which the estate of the one first to die would go to the survivor, and upon the death of such survivor, his or her estate was to go to certain beneficiaries, among whom were the Plaintiffs. John B. Block died May 29, 1939, and this, his will, was duly probated as his last will and testament. Anna Block, being the sole legatee of his estate, received all of such estate after the payment of claims and expenses of the administration. Then, on August 7, 1939, Anna Block executed a new will which purported to revoke all previous wills made by her, and which materially reduced the bequests and devises to the Plaintiffs as provided for under the will of May, 1939.

Anna Block died on June 25, 1942, and her will of August 7, 1939, was duly admitted to probate and her estate is now in the course of administration under that will. These suits are by the Plaintiffs as beneficiaries under the joint will to enforce the alleged oral contract or agreement which it is claimed resulted in the execution of the alleged joint will, and to impress a trust in favor of Plaintiffs upon the property of the estate of Anna Block, deceased.

[4][5] Since the trial court found adversely to plaintiffs on all issues and as to all the conflicting evidence offered on their behalf, the burden rests upon them to show lack of support in the evidence for such findings. Conflicts in the evidence must be resolved in favor of the party prevailing and the evidence in general must be construed in its aspect most favorable to them. No authority need be cited in support of this well established principle.

The will (or wills), as one instrument, and the provisions in it, may be, for convenience, set out under subdivisions to be designated as First, Second, Third, and Fourth. The will ends with the usual paragraph, as follows: “In witness whereof, the said John B. Block and said Anna Block have subscribed their names hereto this the 12th day of May, A.D., 1939, at Albuquerque, Bernalillo County, New Mexico.”

Under that part of the will designated as First, and divided into subparagraphs (A), (B), (C) and (D), John B. Block devises and bequeaths unto his wife, Anna Block (should she survive him), all the estate, real and personal and mixed, wherever situated, of which he may die seized or possessed, or may be entitled to at his death. All such property shall belong to her absolutely. He then appoints Anna Block as sole executrix of his will in subparagraph (C).

In the following paragraphs, under letter (D), the will provides that in case said John B. Block shall survive the said Anna Block, “he does hereby will, devise and bequeath all of his estate as hereinafter mentioned in the following manner.” Then follow eight specific bequests and devises to eight designated beneficiaries, the last paragraph 8 (Tr. 7) containing a residuary clause in which the Plaintiffs, James Marshall Block, his wife, Mrs. Virginia Olsen Block, and their son, John Bingham Block, II, are made the residuary legatees of seventy-five per cent of his estate, and Ernest A. Polansky twenty-five per cent.

In the last subparagraph under First he names Mary Valverde McDonald, Ernest A. Polansky and James Marshall Block as executors, “the said Anna Block, who was appointed in paragraph (C), having failed to survive him.”

Under that portion of the will designated Second, there are identical provisions made by Anna Block with those made in the first part of the will by John B. Block. In other words, she gives, devises and bequeaths unto her husband, John B. Block (should he survive her), all her estate, etc., in identical language, and it is provided that all such property shall belong to him absolutely. In subparagraph (D) of paragraph Second Anna Block makes specific bequests and devises to the same eight beneficiaries, in identical language as those named in that portion of the will under paragraph First.

That part of the will under the division Third is common to both testators and deals with the possibility that their deaths should occur simultaneously or under circumstances causing doubt as to which survived the other. In that event, both having died, the entire estate devolves to the beneficiaries named under paragraph (D) part First, and paragraph (D) part Second, or in other words, to the eight beneficiaries named by both.

In that part of the will under the division Fourth the language becomes applicable again to both testators, conferring certain powers and authority on the executor or executors.

We have carefully examined the testimony touching upon the preparation of and the execution of the first will, or wills. In substance, we have the following facts upon which the trial court could, and did, rely in finding that there was no contract or agreement to make joint, or mutual, wills, jointly directing disposition of the property after the death of the survivor, but which would, rather, support defendants' contention that it was clearly understood no such agreement was ever had and that either party could, at his election, change his will:

Ernest A. Polansky, an attorney at law, of Albuquerque, testified as to the facts and circumstances leading up to the execution of the will in question. He had done legal work for Mr. and Mrs. Block for many years prior to their deaths. Mr. Block called for him and he went to the home of the parties two or three days prior to...