Meyer v. Texas Nat. Bank of Commerce of Houston, B--268

• Decision Date: 14 February 1968
• Docket Number: No. B--268,B--268
• Citation: 424 S.W.2d 417
• Parties: Frank K. MEYER, Individually, etc., et al., Petitioners, v. TEXAS NATIONAL BANK OF COMMERCE OF HOUSTON, Administrator, Respondent.
• Court: Texas Supreme Court

Page 417

424 S.W.2d 417

Frank K. MEYER, Individually, etc., et al., Petitioners, v. TEXAS NATIONAL BANK OF COMMERCE OF HOUSTON, Administrator, Respondent.

No. B--268.

Supreme Court of Texas.

Feb. 14, 1968.

Rehearing Denied March 13, 1968.

Hirsch & Westheimer, Charles F. Cockrell, Jr., Andrews, Kurth, Campbell & Jones, Palmer Bradley, Hall E. Timanus and Brian E. O'Neill, Houston, for petitioners.

Brown, Kronzer, Abraham, Watkins & Steely, W. James Kronzer, W. J. Knight, Gail Whitcomb, Fred Parks, Bohn Phillips, Houston, for respondent.

NORVELL, Justice.

The trial court on motion for summary judgment held that the wills of Joseph F. Meyer, Jr. and his wife, Alpha Genevieve Meyer, were mutual wills based upon an oral contract. Both sides has filed motions for summary judgment. The motion of the executors of the Joseph F. Meyer, Jr., estate, Frank K. Meyer and the guardian and guardian ad litem of the estate of George B. Meyer, non compos mentis, was overruled. The motion of Texas National Bank of Commerce of Houston, administrator of the estate of Alpha Genevieve Meyer, was granted and judgment rendered against the Joseph F. Meyer, Jr. estate, Frank Meyer and George B. Meyer, impressing a trust upon an undivided two-thirds interest of the estate of Joseph F. Meyer, Jr. in favor of the heirs at law of Alpha Genevieve Meyer. The Court of Civil Appeals affirmed. 412 S.W.2d 957.

Being of the tentative opinion that a recovery upon the oral agreement was precluded by the statute of frauds, Article 3995, subd. 4, ¹ we granted writ of error. After full argument and upon plenary examination of the record, out tentative opinion has been confirmed. Accordingly, the judgments of the courts below are reversed and judgment here rendered sustaining the motion for summary judgment filed by petitioners and overruling the motion of respondent and decreeing that respondent take nothing of petitioners. Rule 505, Texas Rules of Civil Procedure. We base our decision upon the statute of frauds and hold as a matter of law that the summary judgment proofs do not disclose circumstances such as would in equity avoid the bar of the statute.

The facts pertinent to our decision may be briefly stated as follows:

Joseph F. Meyer, Jr. and Alpha Genevieve Meyer were husband and wife, having married on January 10, 1909. They had no natural born or adopted children. On January 10, 1944, Alpha Genevieve Meyer executed a holographic will in which she appointed her husband independent executor of her estate and provided that after all just debts had been paid, her 'entire estate of every kind and character, real, personal and mixed and wheresoever situated,' should go to her husband in fee simple. The will contained no provision for the vesting of the property in the event Joseph F. Meyer, Jr. should predecease his wife.

Some six months later, on July 21, 1944, Joseph F. Meyer, Jr. executed a will before two attesting witnesses in which he designated his wife to serve as independent executrix of his estate and stated that it was his will that 'all of the property, both real, personal and mixed, that I may die seized and possessed of, after payment of my just debts, together with all expenses incident to the probating of this will, shall pass to and vest in fee simple in my beloved wife Alpha G. Meyer, * * *.' This will like that of Alpha Meyer contained no provision relating to the testator's property in the event his wife should predecease him.

In neither of the 1944 wills executed by Mr. and Mrs. Meyer was there a written provision or statement to the effect that said wills had been executed in pursuance of an agreement between them. The estates of both consisted primarily of real property, and there is no contention here that Article 3995, subd. 4, is not applicable.

Some eighteen years later, on March 13, 1962, Joseph F. Meyer, Jr. executed another will which revoked his 1944 will and provided that all his property, real, personal and mixed, should pass to his wife and to his brothers, George B. Meyer and Frank K. Meyer, in equal shares of one-third each. The three devisees in this will were designated as independent executors. On May 18, 1962, some two months after the execution of this later will, Joseph F. Meyer, Jr. died, and on July 3, 1962, the later will was admitted to probate. Shortly thereafter, Frank K. Meyer and George B. Meyer took their oaths as executors.

On June 15, 1962, Alpha Meyer died and Texas National Bank of Commerce of Houston is now serving as administrator of her estate.

Despite the circumstance that the 1944 wills of Mr. and Mrs. Meyer were executed upon different dates and neither will alluded to or mentioned a contractual arrangement as being extant between them, we shall assume for the purposes of this opinion that the wills were executed in pursuance of an oral agreement. This assumption, however, should not be construed as an indication that in our opinion the existence of a contract between Mr. and Mrs. Meyer was established as a matter of law and that there was no jury question involved in the determination of such issue. Although some discussion of the summary judgment proofs is entailed in stating the basis of our holding, it is unnecessary for us to pass upon the existence of a contract, vel non.

The controlling question in the case comes down to this: Is the present case distinguishable upon the facts from our recent holding in Kirk v. Beard? We hold that it is. From the report of that case, 162 Tex. 144, 345 S.W.2d 267 (1961), it appeared that two brothers, J. E. Sexton and W. H. Sexton, 'orally agreed that they would make mutual and reciprocal wills. (They) executed identical wills devising each to the other his undivided half interest in all lands owned by them in Johnson, Hill and Somervell Counties, together with all personal property situated thereon; and leaving to the nieces (plaintiffs in the case), share and share alike, the remainder of his property, both real and personal.' W. H. Sexton died on September 30, 1952. His will was probated and his one-half interest in the lands passed to his brother in accordance with the terms of the will. Thereafter, J. E. Sexton attempted to make a different disposition of the property than that contained in the wills of November 23, 1948, and litigation resulted shortly after J. E. Sexton died.

In Kirk v. Beard, property passed from one of the contracting parties to the other, and it was held that it would be a fraud to permit the one who had received property from the other party to thereafter repudiate the contract. An intervention by equity was hence deemed supportable.

In the present case, no property passed from Alpha Genevieve Meyer to her husband under her will allegedly executed in pursuance of a contract. If we assume an oral agreement to execute mutual wills, does the making of a will in accordance with the agreement and keeping it potentially operative by not revoking it constitute such performance as will render the oral contract enforceable in equity notwithstanding the statute of frauds? To justify such intervention and the setting aside of a legally enacted statute, it is settled that there must be something more than a mere wrong or breach of contract. Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216 (1916); Robertson v. Melton, 131 Tex. 325, 115 S.W.2d 624 (1938).

The parties have not cited nor does our research disclose a case by this court which controls the present situation. ² There is conflict among the cases decided in the American jurisdictions as to whether Mrs. Meyer's performance of the oral contract by making her will of January 10, 1944 (and not revoking it) would be sufficient to avoid the bar of the statute.

In Turnipseed v. Sirrine, 57 S.C. 559, 35 S.E. 757 (1900), it appears that Susan Turnipseed and her niece, Viola Neblett, entered into an oral agreement to make mutual wills, leaving the bulk of the property of the one to the other. Susan Turnipseed made a will in accordance with the agreement, but Viola Neblett made a different disposition of her property and then predeceased Susan Turnipseed who sued Viola Neblett's executor, George W. Sirrine, to enforce the oral agreement. She prevailed despite the statute of frauds upon the theory of partial performance. ³ Although no property had ever passed under the will of Susan Turnipseed to Viola Neglett, the court nevertheless reasoned that Mrs. Neblett had received a benefit by reason of Susan Turnipseed's execution of a will in accordance with the oral agreement. An analogy was drawn between the execution of a will and the procurement of a life insurance policy. The South Carolina court said:

'If the plaintiff (Susan Turnipseed) had died before Mrs. Neblett, she would have received at least as much as $10,000 from the plaintiff's estate. She therefore had the benefit of what might be termed the 'risk' from 1892 until 1897. If Mrs. Neblett had taken out a policy of insurance on her aunt's life for $10,000, it would have cost her a large sum of money, if any company would have taken such a risk, as she was then very old and infirm. Yet Mrs. Neblett received the benefit, during that time, of what was equivalent to a policy for that amount, or even more. It will not do to say that she received no benefit, as the plaintiff did not die, any more than it would lie in the mouth of a man who paid his premium of insurance with a note to say there was a failure of consideration, as he did not die, or his property was not burned. * * *' ⁴ In Brown v. Webster, 90 Neb. 591, 134 N.W. 185, 37 L.R.A., N.S., 1196 (1916), the Supreme Court of Nebraska, also upheld an oral agreement to make a will in a suit by a surviving widow against her deceased husband's estate. The force of this decision, however, is largely destroyed by the subsequent decision of the Nebraska court in Kimmel v. Roberts, 179 Neb. 8, 136 N.E.2d 208 (1965), in which it was said:

'Such a...