Mosloski v. Gamble
| Decision Date | 09 March 1934 |
| Docket Number | No. 29745.,29745. |
| Citation | 253 N.W. 378,191 Minn. 170 |
| Parties | MOSLOSKI v. GAMBLE. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Martin County; Julius E. Haycraft, Judge.
Action by Frank G. Mosloski against A. W. Gamble, as administrator of the estate of John Mosloski, deceased. From an order denying his motion for a new trial, the administrator appeals.
Affirmed.
Leo J. Seifert, of Fairmont, for appellant.
E. H. Nicholas, of Jackson, for respondent.
Actions to enforce the provisions of mutual wills made March 4, 1913, by John Mosloski and Kate Mosloski, his wife, the parents of plaintiff, in which he was a beneficiary. There were findings for plaintiff, and the defendant, A. W. Gamble, as administrator of the estate of John Mosloski, appeals from the order denying his motion for a new trial.
Mutual wills are those in which the testators make mutual or reciprocal bequests or devises in favor of the other. They may be in one instrument or in as many as there are testators. A joint will may be mutual and reciprocal in its terms, and it frequently is. In 40 Cyc. 2110, reciprocal wills, which may be separate or joint in form, are defined: "Mutual or reciprocal wills are those in which two or more persons make mutual or reciprocal provisions in favor of each other, as by providing that the property of one dying first shall go to the survivor or survivors; and this may be either where all of them unite in the execution of one instrument, or where several instruments are executed by each of them separately." The definition given is generally acceptable to the text-writers who express their understanding of mutual and reciprocal wills in varied phraseology and always with substantially the meaning given. Dunnell, Minn. Prob. Law, § 146; 1 Alexander on Wills, §§ 69-88; Gardner on Wills (2d Ed.) 75; 1 Jarman on Wills (7th Ed.) 42; 1 Page on Wills (2d Ed.) §§ 84-88; Rood on Wills (2d Ed.) § 70; 1 Schouler (6th Ed.) §§ 716-727; Theobald on Wills (8th Ed.) 17, 18; Williams on Executors (12th Ed.) 6, 7, 78, 115; 1 Woerner, Am. Law, Adm. (3d Ed.) § 37; 1 Underhill, Wills, pp. 18-21. Mutual or reciprocal wills came into the law late and received questioning consideration and tardy recognition. No such will has had construction in this court. Dunnell, Minn. Dig. (1932 Sup.) § 10207a.
That two wills are made concurrently does not establish them as mutual wills. Edson v. Parsons, 155 N. Y. 555, 50 N. E. 265; Williams v. Williams, 123 Va. 643, 96 S. E. 749. The wills themselves by appropriate language used may show that they are mutual, each containing provisions reciprocal to those of the other. Surrounding circumstances and parol evidence may be introduced to show the mutuality. That a contract for mutual wills was here made upon a sufficient consideration appears from these facts and circumstances: The plaintiff is the son of John Mosloski and Kate Mosloski. John and Kate owned 480 acres of farm land in Martin county, this state. Mrs. Mosloski owned 320 acres thereof at the time of their mutual wills on March 4, 1913. Mr. Mosloski owned 120 acres. He or he and his wife in common had a claim to an additional 40, owned by Mr. Mosloski's father under an arrangement whereby they were to care for and support him during his life, and at his death they were to have the 40 or John Mosloski was to have it — it matters not which. The father died, and the 40 went, under the contract, either to John Mosloski or to him and his wife. Mr. and Mrs. Mosloski had three sons and five daughters. The wills, on the date mentioned, were made pursuant to an oral agreement between the parties that each would devise to the other a life estate in such party's real estate with remainder to the three sons. These wills consummated the agreement of the parties. Each was a consideration for the other. The parties thoroughly understood what they were doing. It was their wish that their three sons should have, in quantities of 160 acres each, the property which Mr. Mosloski owned and the property Mrs. Mosloski owned. The particular 160-acre tract each son was to have was described in the wills. The daughters were provided for by bequests of money. The wills were made and executed at the same time, drafted by the same attorney, and witnessed by the same witnesses. Mr. and Mrs. Mosloski went to their attorney and explained to him just what they wanted and gave him the descriptions of their properties. He drew their wills to conform to their expressed wish as to the disposition.
On August 13, 1924, Mrs. Mosloski died. Her will was probated. Her husband was one of the executors. By the decree of distribution he received a life estate in the real estate owned by his wife, and each of the sons received a specific portion by way of remainders. The plaintiff received 120 acres. The will made by John Mosloski devised him the 40 now in question; if he gets this 40 he gets the 160 acres as his father and mother intended when they made the agreement for mutual wills and executed them pursuant to their agreement.
On May 16, 1925, John Mosloski made a second will in which he revoked his 1913 will. This second will gave one of his daughters an additional $500. It was expressed to be given because of the dutiful care she had given her mother during her illness. It gave plaintiff and a brother as tenants in common an 80-acre tract, which included the 40 now in controversy. In 1926 he remarried. And in 1932 he died. Advised that the marriage revoked his wills, the probate of his estate as that of an intestate was started, and the defendant is the duly appointed administrator.
Defendant raises the following propositions: (a) The court erred in allowing proof and finding that John Mosloski made a mutual will without the production of the original; (b) it was error to hold that the will of 1913 could not be revoked; (c) it was error to find an agreement between plaintiff and John Mosloski under which the 40 could be claimed and the claim enforced in this action in equity; (d) it was error not to find that plaintiff was estopped to claim the 40 either under the mutual wills or under the agreement with the father.
A carbon copy of John Mosloski's will of March 4, 1913, was received in evidence over the objection that it was incompetent, irrelevant and immaterial; no proper foundation laid. There was no error in the ruling. The foundation was ample. The attorney who drew the mutual wills and also the second will of John Mosloski testified, as well as his stenographer who typed the wills. From their testimony it appeared that the practice of that attorney was to make and preserve carbon copies of all wills drawn and executed in his office; that the carbon copies of these three wills, offered in evidence, were taken from his files and were true copies of the three wills mentioned. There was no objection to the copy of the second will so offered; and as to Mrs. Mosloski's will no real objection could be offered, for it had been admitted to probate and a certified copy, Exhibit E, was stipulated in evidence. The fact that in his second will John Mosloski revokes prior wills is some indication that he destroyed such. Keagle v. Pessell, 91 Mich. 618, 52 N. W. 58. But, as the trial court observed, this is not an action based on the wills, but upon a compact or agreement "of which the will is but evidence." Ample foundation was laid for secondary evidence of John Mosloski's will.
John Mosloski's marriage revoked his will of 1925. 2 Mason Minn. St. 1927, § 8742. It is for the probate court in the first instance to determine whether the will is revoked. Outside of its jurisdiction in proving wills, the probate court will do nothing in granting to a beneficiary relief which only a court of equity can give. What a court of equity does is not to actually revoke the will but to fasten upon the property which the survivor in the case of mutual and reciprocal wills, or in case of a joint will, has agreed to devise to a beneficiary; and impressing the property with a trust, as it does in its judgment, it completes its work by decreeing the property to be in the beneficiary in fee, if that be the estate which was to be devised. Appellant does not deny that if a husband and wife, pursuant to a compact, make mutual and reciprocal wills to the survivor for life with the remainder to their children and one dies and the survivor takes the benefit of the...
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