Moats v. Pumphrey's Estate

• Decision Date: 17 September 1976
• Docket Number: No. 1303,1303
• Citation: 33 Md.App. 9,363 A.2d 589
• Parties: Hilda Mae MOATS et al. v. The ESTATE of Lily W. PUMPHREY et al.
• Court: Court of Special Appeals of Maryland

Page 9

33 Md.App. 9

363 A.2d 589

Hilda Mae MOATS et al. v. The ESTATE of Lily W. PUMPHREY et al.

No. 1303.

Court of Special Appeals of Maryland.

Sept. 17, 1976.

Steny H. Hoyer, District Heights, with whom were Hoyer & Fannon, District Heights, on the brief, for appellants.

Jeffrey D. Radowich, Baltimore, with whom were Edward S. Digges, Sr. and Edward S. Digges, Jr., Baltimore, on the brief, for appellees.

Argued before FREDERICK J. SINGLEY, Jr. and MARVIN H. SMITH, ^* and DAVID ROSS, ^** JJ.

SMITH, Judge.

This case is a sequel to Moats v. Schoch & Berry, 24 Md.App. 453, 332 A.2d 43 (1975), and was pending at the time that proceeding was before this court. In fact, Chief Judge Orth noted for the court in footnote 5 of the opinion in that case that the appellants there (two of the three appellants here) 'moved to have further appellate proceedings stayed pending the outcome of Equity 3343 ((this case)) below,' which motion was denied. We shall here invoke Rule 1086 and hold that 'the judgment of the lower court (should) not be set aside on the evidence (since it was not) clearly erroneous . . ..'

The seeds of this controversy were sown in 1942 when Hilda Mae Pumphrey married contrary to the wishes of her parents. A day or two later they executed a will styled at the top as 'Joint and Several Will of William B. Pumphrey and Lily W. Pumphrey.' It provided in pertinent part:

'We, William B. Pumphrey and Lily W. Pumphrey, husband and wife, . . . do hereby make, publish and declare this to be our Joint and Several Last Will and Testament in manner and form following, that is to say:-

'After the payment of all our just debts . . . we dispose of our estate, jointly and individually, as follows:-

'Item 1:-We give and bequeath unto our daughter, Hilda Mae Pumphrey, the sum of one ($1.00) dollar.

'Item 2:-After the death of both of us, we jointly and severally bequeath and devise our home property containing 18.32 acres, more or less, . . . unto our daughters, Frances Geneva Pumphrey and Lillie Belle Pumphrey, equally, share and share alike.

'Item 3:-We jointly and severally and individually bequeath and devise, after the death of both of us, the survivor having had a life interest therein, all the rest and residue of our estate, jointly and severally and individually, real, personal and mixed, of whatsoever kind and wheresoever located, and whether nor (sic) owned or hereafter acquired, unto our daughters, Frances Geneva Pumphrey, and Lillie Belle Pumphrey, equally, share and share alike.

'We hereby nominate, constitute and appoint our daughters, Frances Geneva Pumphrey, and Lillie Belle Pumphrey, executors of this our Joint and Several Last Will and Testament.'

Mr. Pumphrey died in 1949. In 1957 Mrs. Pumphrey executed a new will. In it she left the residue of the estate, after bequests of $1.00 to each of her three daughters, to two granddaughters, the children of Lillie Belle Bastain. In the earlier appeal two of the daughters, Hilda Mae and Frances Geneva, sought to prevent the probate of the later will. In holding that the 1957 instrument was properly admitted to probate, Chief Judge Orth said for the court:

'We assume for the purpose of decision, but expressly do not decide, that it was a joint and mutual will, ⁶ contractual in 'A joint will is a single testamentary instrument which contains the wills of two or more persons, is executed jointly by them, and disposes of property owned jointly, in common, or severally by them. A mutual will is one executed pursuant to an agreement between two or more persons to dispose of their property in a particular manner, each in consideration of the other. If the testators name each other as beneficiaries, the wills are reciprocal. Two or more wills may be mutual without being joint. A joint and mutual will must be the will of two or more persons contained in a single testamentary instrument, jointly executed by them pursuant to an agreement to dispose of their respective estates to each other or to third parties. Although the initial execution of the will may categorize it as joint and mutual; nevertheless, it cannot be given effect as such while one party survives, but, as to him, it will be given effect as his separate will.' (footnotes omitted)

nature, and that Lily W. Pumphrey accepted benefits thereunder. In other words, we are assuming arguendo, for the determination of this appeal only, that the will of 1942 was a joint, mutual, reciprocal will binding William and Lily to dispose of their property in the manner therein set out, each in consideration of the other, and that there was a contract between them that the will would remain in effect. Even on these assumptions, which accept the premises in the question as presented by daughters, the answer to the question is no, the will of 1942 is not irrevocable.

See Annot., 160 A.L.R. 9, 12-14 (1947); G. Thompson, Willis, § 34 (3rd ed. 1947); 57 Am.Jur. Wills, § 681 ((now 79 Am.Jur.2d Wills § 754 (1975))).' Id. at 458-59, 332 A.2d at 47.

In this case appellants Hilda Mae Moats (Hilda Mae), Frances Geneva Bell (Frances Geneva), and Lillie Belle Bastain (Lillie Belle) (collectively, the daughters), have sued the two granddaughters and the estate of Mrs. Pumphrey. Among other things, they have alleged:

'That prior to and concurrent with the execution of said will, (their parents) agreed and contracted, each with the other and in consideration of the promises made each to the other and to their daughters, to dispose of all of their separate and jointly held property, whether in hand or after acquired, in such manner that the survivor would obtain only a life interest therein, including property owned solely by the survivor, with remainder to specified legatees and devisees, namely, their daughters, Frances Geneva Bell, Hilda Mae Moats and Lillie Belle Bastian (sic).

'That said agreement and contract was understood and consented to by both parties, and the terms thereof were reduced to writing and contained in the document dated May 22, 1942, and titled 'Joint and Several Will of William B. Pumphrey and Lilly (sic) W. Pumphrey' (marked as Exhibit A and attached (to the bill of complaint)), which document was intended to and did in fact serve as a binding written memorial of said agreement and contract, as well as the means by which performance of said agreement and contract would be insured as to both parties in the event of the death of the other.'

They further alleged that by this will their mother 'took only a life interest in the property of (their father), (with the) remainder to Frances Geneva Bell, and Lillie Belle Bastian (sic), and she did contract to leave her property, then held or after acquired, in accordance with the terms thereof'; that '(t)he parties contracted and agreed that upon the death of the first to die the survivor should take an ordinary life estate in all property belonging to either spouse at that time or thereafter acquired, and that (their mother) thereby became bound to create such an interest at the death of (their father) in all property belonging to her then or acquired later, and to make a gift of the remainder interest to her daughters in compliance with the agreement'; '(t) hat at the death of (their father), (their mother) acquired a life estate only in his property and simultaneously had her own fee interest in all jointly held, separate, and after acquired property, diminished, pursuant to the agreement and contract between them, to a life estate'; that at the death of their father they 'acquired a vested remainder interest in fee simple in all property belonging to (their father), and in all property jointly owned by (their father and mother) and in all property owned by (their mother) at that time or thereafter acquired by her and not disposed of inter vivos'; that at the death of their mother 'and the termination of her life interest in all her property, whether separate, jointly held, or acquired subsequent to the death of (their father), the Plaintiffs' vested remainder interest became a vested fee simple interest in all property belonging to (their parents), whether separate, jointly held, or after acquired, and that, therefore, (their mother) was without power or authority to effect any valid testamentary disposition of any such property in violation of the agreement and contract described supra.' (Emphasis in original.) They sought: (1) a declaration that the agreement between their parents as contained in the 1942 will was 'valid and binding upon the Estate of Lily W. Pumphrey, deceased, . . . upon the Defendants in this action; and upon all other persons mentioned in or benefited by the said mutual Will'; (2) specific performance of the agreement; (3) that the 1957 will 'be declared inoperative, illegal, and ineffective to devise, bequeath, give or dispose of any of the real or personal property which came into the hands of (their mother), on the death of (their father), or was thereafter acquired but not disposed of by her during her life, and that in such respect said alleged Last Will and Testament of (their mother) be declared null and void'; (4) an accounting of all property received by the co-executors under the 1957 will and surrender by them of all such property; (5) an injunction against sale or transfer of real or personal property in the possession of the co-executors; (6) the appointment of a receiver 'for the purpose of taking possession of and protecting the property mentioned in (their) complaint,' with the receiver to collect rents, etc.; and (7) a judgment for costs.

The chancellor (Bowling, J.) pointed out in his opinion that the earlier case in this court settled the fact that the 1942 will was revocable. Thus, he reasoned, 'if the relief prayed is to be granted it must be based on an underlying agreement independent of the Will.' He referred to Wilks v. Burns, 60 Md. 64 (1883), quoted extensively by this court in the earlier opinion, and...