McKinnon v. Baker
| Decision Date | 05 July 1985 |
| Docket Number | No. 84-083,84-083 |
| Citation | 370 N.W.2d 492,220 Neb. 314 |
| Parties | Frances McKINNON, Appellant, v. Ted BAKER, Personal Representative of the Estate of Anna Luella Van Pelt, Deceased, et al., Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Wills. The execution of reciprocal or mutual wills, without more, does not bar their subsequent modification or revocation.
2. Wills: Contracts. A contract between a husband and wife to make reciprocal or mutual wills is valid and enforceable.
3. Contracts. Introductory recitals in a contract are generally not a part of the operative contract. If the contract proper is ambiguous, such recitals may be of value in construing the same; but if the contract provisions are clear and unambiguous, the recitals have no effect or application.
Brian Cook of O'Brien, Huenergardt & Cook, Kimball, for appellant.
George P. Burke of Van Steenberg, Myers & Burke, Kimball, for appellees.
This is an action in which Frances McKinnon, plaintiff-appellant, sought performance of a contract respecting reciprocal wills between Lester M. Van Pelt and Anna Luella Van Pelt and the imposition of a constructive trust thereunder upon certain real estate devised by Anna. The defendants are the personal representatives of Anna's estate and the residuary beneficiaries under her last will and testament. The trial court dismissed plaintiff's petition and quieted title to the interest in real estate here involved in the personal representatives of Anna's estate. Plaintiff has appealed, claiming in substance that the trial court failed to properly determine the meaning and effect of the contract involved.
Lester and Anna were married in 1938, it being a subsequent marriage for each. Each had children by a prior marriage. The plaintiff is a daughter of Lester by a prior marriage.
In 1952, subsequent to their marriage, Lester and Anna acquired as tenants in common a residential property which they occupied as their home and described as Lot 4, Rodman Court Addition to the City of Kimball, Kimball County, Nebraska.
In 1957 Lester and Anna entered into a written contract regarding the disposition of their property, including particularly the making of what were described in the contract as reciprocal wills. The 1957 will of Lester executed pursuant to the contract provided in substance that at his death the residence property here involved should go to Anna for life, remainder to the plaintiff; and if Anna predeceased him, plaintiff was to receive such property. Anna's will executed pursuant to the contract provided that if Lester predeceased her, said property was to go to the plaintiff.
Lester died in 1977, and his 1957 will was probated. Anna died in 1981 but had, in 1978 and subsequent to Lester's death, executed a new will leaving the residue of her estate, including the interest in real estate here involved, to her great-grandchildren. This will was admitted to probate. It is as a result of this latter will that plaintiff sought to have the 1957 agreement of the parties enforced in favor of the disposition to her as contained in Anna's 1957 will, and the imposition of a constructive trust upon this interest in real estate to effect the same.
The 1957 contract between Lester and Anna and its meaning and effect are the principal issues before us. The contract began with a number of recitals, those material to this case being:
Whereas, both parties, at this time, desire to execute reciprocal wills devising and bequeathing their respective separate property upon their respective deaths free from any claim of the other except as shall be provided in said wills; and
Whereas, both parties have mutually agreed and do now agree that the distribution of their respective property shall be made in accordance with the terms of this agreement and said reciprocal wills.
(Emphasis supplied.)
Paragraph 12 of the contract proper provided:
Each party shall contemporaneously with the execution of this agreement, execute his and her Last Will and Testament, a copy of which is hereto attached marked Exhibits A and B, respectively. It is mutually agreed that so long as the other shall live, neither of us will revoke nor destroy either of said wills or make any other will or codicil without the full consent and agreement of the other.
(Emphasis supplied.) The 1957 wills executed by both Lester and Anna were those, copies of which were attached to the contract.
The trial court held that paragraph 12 of the contract was unambiguous and permitted Anna to modify her will after Lester's death and that the recitals could not be used to vary this contract provision. Plaintiff asserts this is in error; that the recitals must be treated as an integral part of the contract; that the reference to reciprocal wills in the recital portion of the contract carries with it a connotation that a contract for such wills is enforceable; that such wills may not be varied unless by consent of the parties; that a reading of the contract as a whole, including the recitals, shows an intention of the parties that the wills provided for in the contract could not be varied without mutual consent; and that paragraph 12 is merely to tie up loose ends which might otherwise exist and defeat the intention of the parties.
Before dealing with plaintiff's position, we wish first to dispose of an argument of defendants that the contract here involved is an invalid postnuptial contract. It is not. It is a proper contract to make reciprocal or mutual wills, and such contracts are valid in Nebraska. Brown v. Webster, 90 Neb. 591, 134 N.W. 185 (1912); Wyrick v. Wyrick, 162 Neb. 105, 75 N.W.2d 376 (1956); Eagan v. Hall, 159 Neb. 537, 68 N.W.2d 147 (1955). The issue before us is what the contract means.
We cannot agree with plaintiff's characterization of the contract as being one providing for irrevocable reciprocal wills. While one may question the use of the word...
To continue reading
Request your trial
-
Weiss v. Smulders
...and termination of that matter necessarily would control over what is evidently a collateral matter. 13 See McKinnon v. Baker, 220 Neb. 314, 317, 370 N.W.2d 492 (1985) (noting well settled principle that “[i]f both the recitals and the operative part are clear, but they are inconsistent wit......
-
Weiss v. Smulders
...and termination of that matter necessarily would control over what is evidently a collateral matter.13 See McKinnon v. Baker, 220 Neb. 314, 317, 370 N.W.2d 492 (1985) (noting well settled principle that "[i]f both the recitals and the operative part are clear, but they are inconsistent with......
-
DeMorais v. Wisniowski
...review denied, 735 So. 2d 1285 (Fla. 1999); Jones v. Paducah, 283 Ky. 628, 632, 142 S.W.2d 365 (Ky. App. 1940); McKinnon v. Baker, 220 Neb. 314, 317, 370 N.W.2d 492 (1985); Rubenstein Bros. v. Ole of 34th Street, Inc., 101 Misc. 2d 563, 567, 421 N.Y.S.2d 534 (1979). We agree with that rule ......
-
Estate of Peterson, In re
...full knowledge." We have held that recitals in a contract have a limited value in the construction of a contract. McKinnon v. Baker, 220 Neb. 314, 370 N.W.2d 492 (1985). Recitals, however, may be looked to "in determining the proper construction of the contract or the intention of the parti......
-
How to Draft a Bad Contract
...for Drafting Good Contracts," 5 J. of the Ass’n of Legal Writing Directors 79-117 (Fall 2008). [3] See, e.g., McKinnon v. Baker, 370 N.W.2d 492 (Neb. 1985) (Recitals are "generally background statements and do not ordinarily form any part of the real agreement."). [4] Some prefer to insert ......