Neff v. Poboisk

• Decision Date: 04 October 1968
• Docket Number: No. 40935,40935
• Parties: Mollie NEFF, Respondent, v. Harry POBOISK, individually, and as executor, and as special administrator of the Estate of Ben Pobolisk, Appellant
• Court: Minnesota Supreme Court

Page 823

161 N.W.2d 823

281 Minn. 475

Mollie NEFF, Respondent, v. Harry POBOISK, individually, and as executor, and as special

administrator of the Estate of Ben Pobolisk,

Appellant.

No. 40935.

Supreme Court of Minnesota

Oct. 4, 1968.

Syllabus by the Court

The fact that a husband and wife repeatedly expressed their intention to treat their children equally, and simultaneously executed identical and reciprocal wills drafted in their presence by the same attorney, is not conclusive evidence of an intention to execute mutual wills having the binding effect of a contract so as to render irrevocable the provisions of the survivor's will after the death of the other spouse.

Stacker, Silverstein, Burke & Radsom, St. Paul, for appellant.

Ruttenberg, Orren, Griswold & Cohen, St. Paul, for respondent.

Heard before KNUTSON, C.J., and NELSON, MURPHY, OTIS, and ROGOSHESKE, JJ.

OPINION

OTIS, Justice.

This is an action by a sister against a brother seeking to enforce the terms of mutual wills executed by their parents. The matter was tried without a jury. The court found that the wills constituted an irrevocable contract enforcible in equity. This appeal is from the judgment.

The only issue is whether there was clear, positive, and convincing evidence to support the court's findings. We hold that there was not.

On August 24, 1961, Ben and Pauline Poboisk executed identical wills drafted in their presence by the same attorney. Each left the other all of his or her property with the provision that the estate of the survivor would be distributed as follows: To their son, Harry Poboisk, Lots 5, 6, and 7, Block 4, Van Doren's Addition to St. Paul; and to their daughter, Mollie Neff, Lots 6, 7, and 8, Block 1, Milton's Addition to St. Paul. Pauline Poboisk died on January 16, 1965, and on April 27, 1965, Ben Poboisk executed a new will, leaving his son, Harry, the three lots in the Milton Addition as well as the three lots in the Van Doren Addition. To his daughter, Mollie Neff, he left his homestead. Ben Poboisk died on November 25, 1965. Mrs. Neff has brought these proceedings to recover title to Lots 6, 7, and 8, Block 1, Milton's Addition.

Various relatives testified concerning the intention which the parents expressed to them in numerous family discussions. It is clear that both parents repeatedly stated their purpose to divide their estate equally between their children. They wanted peace in the family.

Plaintiff argues that the court's finding that the elder Poboisks intended to enter a binding contract in executing mutual wills is supported by the fact the wills themselves were identical and reciprocal, were executed at the same time before the same witnesses, and were prepared by the same attorney. Nevertheless, the attorney who prepared the wills and supervised their execution did not insert in the wills a recitation that they would have the effect of a binding agreement. He testified as follows:

'Q. During the time that you discussed these wills were--and I'm talking at this time of the 1961 wills--in the presence of Mr. and Mrs. Poboisk was there any talk by anyone of you about whether these will (sic) would be irrevocable?

'The Witness: None whatever.'

In holding that the mutual wills of the elder Poboisks constituted a binding contract between them, the trial court relied on Mosloski v. Gamble, 191 Minn. 170, 253 N.W. 378, ¹ where we approved the following definition of a mutual will (191 Minn. 171, 253 N.W. 379):

' 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.'

We went on to say that the fact two wills are made concurrently does not necessarily estabish them as mutual wills, but their mutuality may be shown by surrounding circumstances and parol evidence. We concluded (191 Minn. 175, 253 N.W. 381):

'* * * (T)he wills themselves, the situation of testators, and the testimony of the lawyer who drafted them convincingly establish the compact or agreement * * *.' ²

Mosloski is distinguishable on two grounds. First, and decisively, the attorney who drafted the wills in that case told the testator and testatrix that the wills would 'stand like a contract.' Equally significant was the fact that the son who claimed to be a beneficiary of the mutual wills was promised by his father that he would have the property in question by will or descent, and the son farmed and developed the land in reliance on that promise. Mosloski was a case where, during the lifetime of the parents, each son was allocated a tract of 160 acres which each occupied and treated as his own.

As we view the case before us, the testimony falls far short of proving by evidence which is clear, positive, and convincing a contract between the elder Poboisks. Jannetta v. jannetta, 205 Minn. 266, 269, 285 N.W. 619, 621. At most, we find two elderly parents preoccupied with preserving peace in the family by treating their children equally. The fact that the parents executed identical wills has little significance. Indeed, it is the usual manner in which parents plan the disposition of their estates. Diez v. Rosicky, 145 Neb. 242, 245, 16 N.W.2d 155, 157. We subscribe to the view that execution of identical wills gives rise to no presumption that a binding contract was intended. Ridders v. Ridders, 156 Or. 165, 65 P.2d 1424; Frese v. Meyer, 392 Ill. 59, 63 N.E.2d 768. ³

A leading case cited by plaintiff is Doyle v. Fischer, 183 Wis. 599, 198 N.W. 763, 33 A.L.R. 733....