Prince v. Prince

• Decision Date: 11 August 1911
• Citation: 64 Wash. 552,117 P. 255
• Court: Washington Supreme Court
• Parties: PRINCE v. PRINCE et al.

117 P. 255

64 Wash. 552

PRINCE v. PRINCE et al.

Supreme Court of Washington

August 11, 1911

Department 2. Appeal from Superior Court, Thurston County; John R Mitchell, Judge.

Action by Rebecca A. Prince against Charles A. Prince. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.

B. H Rhodes and Troy & Sturdevant, for appellant.

G. C Israel, for respondent.

CHADWICK J.

Jonathan D. Prince and Rebecca Prince were married in the year 1872, and to them seven children were born. At the time of his marriage, the husband had 80 acres of land, which he had bought of his brother William, or it may be that it had been given to him; at any rate, he never paid, nor does the record show that demand was ever made upon him for the payment of, the purchase price. Upon this 80 acres they lived together until April, 1906, when Jonathan D. Prince died. The Princes had been thrifty in a way, and had accumulated other pieces and parcels of land, besides accumulating, as the court found, something like $5,000 in improvements or betterments to the home place. When Mr. Prince died, the place was apparently stocked with all kinds of farm equipment and machinery necessary to carry to the farm, besides hogs, cattle, horses, etc. The record shows that the father and mother had, from time to time and as the children became of age, made allowance out of their property, by deed or gift, to the extent of about $1,000 in value to each child. On or about January 8, 1906, Jonathan D. Prince, who was then sick of the malady to which he succumbed, was solicited by the husband of one of the daughters, who up to that time had received no share or dowry, to make a deed to his daughter of what would be her share of the property. This he was willing to do, and we take it that respondent was of like will, for she is not, so far as the record shows, attacking the deed to the daughter, in which she joined as grantor with her husband. This left three of the children, Charles Prince, Ralph Prince, and Lelah Prince, all minors, unprovided for. An attorney had been procured at Centralia to draw the deed aforementioned. At the same time, whether upon his advice is not entirely certain, but probably so, Mr. and Mrs. Prince executed wills, alike in form and terms, whereby each gave to Charles and Ralph two several tracts of land, each tract being charged, however, with the payment of $500, to be paid by the devisee to his sister Lelah. After some specific devises and mention of the other children, all of the property remaining, including the home place, was devised to the respondent.

It is the theory and contention of the appellants that the wills were drawn because the two boys Charles and Ralph, being minors, could not accept a conveyance coupled with a promise to pay the charge in favor of their sister. In other words, their right to contract was questioned. Respondent contends that she at no time intended to part with any of her community interest in the property, and, although the question of wills and the interests of the children had been the subject of some strife and even controversy between her husband and herself, she finally signed the will 'just to keep peace in the family,' intending at the time to 'break it.' At this point it may be said that two witnesses who appear to be disinterested testify that, the day after the deed was executed and the wills were drawn, respondent expressed herself as well astisfied and pleased that the interests of the children theretofore unprovided for had been taken care of.

Upon the death of the husband, respondent offered the will for probate, and, it being a nonintervention will, only such proceedings were had as were deemed necessary to pass it beyond the claim of creditors and such liability as might be owing the state under the inheritance tax statutes. Respondent took the rents from all of the land up to the time this action was begun, excepting that part which was willed to Charles. This tract was either farmed by Charles, or he collected the rent after becoming of age. The lessee paid the portion due on Ralph's estate to the respondent; she demanding it because, as he says, 'Ralph was not of age.' Respondent sold and disposed of all of the personal property, and used the proceeds thereof for her own benefit, and has also incumbered all of the lands of the estate, and has converted the proceeds thereof. At any rate, no accounting of her trust was ever filed in the probate court, nor is it tendered in this action. She insists, however, that she has replaced the personal property and stock with property of like character and of equal value. There was some money left at the time the will was probated. This, she says, was used to meet living expenses. In November or December, 1906, respondent moved off of the ranch, and since that time the children, Charles, Ralph, and Lelah, have received no support from her.

A material circumstance attending the execution of the deed and wills was the execution of a writing which, although referred to in the testimony, is not brought to this court. It was signed by respondent and the heirs, and in it this language occurs: 'The undersigned hereof, being the surviving parents, have all of the estate then existing free from any claim on our part by reason of the consideration aforesaid.' One of the children, in speaking of this instrument, says: 'Q. Do you remember that paper? A. Yes. Q. Do you know how you came to sign it? A. Yes. Q. How was it? A. Well, to fix up the estate; to show that I got my share of the estate there. Q. At whose request was that signed up, do you know? A. Why, father and mother.' While respondent says: 'Q. Do you remember that? A. Yes. Q. What did you understand from that? A. I understood I should have my share, my half of all of the property. Q. In case of the death of your husband? A. Yes'--which shows her knowledge of the writing at that time.

In July, 1908, respondent brought this action against her children, Ralph and Charles, praying for a partition, upon the theory that her husband had no right to devise to another, even to the children of the parties, any specific interest in the community property, and that she was not put to an election to take under the will for that reason. The defense is that she has elected, and should be bound by the terms of her husband's will. The court found that the original home place was the separate property of Jonathan D. Prince, subject to certain equitable charges in favor of respondent, and in all respects that the prayer of respondent's petition should be sustained. A decree was entered accordingly.

That one spouse cannot devise the property of another by will is a general rule and will require no elucidation. Joint or mutual wills, made upon proper understanding and executed pursuant to a contract or policy designed to settle the probable interests of the testators and looking to the just provision of those having a claim upon their bounty, partake of the nature of a contract and may be specifically enforced ( Edson v. Parsons, 85 Hun, 263, 32 N.Y.S. 1036), and in such cases are said to be almost irrevocable, without the consent of all the parties. Remsen, Preparation and Contest of Wills, § 6. 'There is no rule of law or policy which stands in the way of parties agreeing between themselves to execute mutual and reciprocal wills, which, though remaining revocable upon notice being given by either of an intention to revoke, become, upon the death of one, fixed obligations, of which equity will assume the enforcement, if attempted to be impaired by subsequent testamentary provisions on the part of the survivor; but, to invoke the intervention of equity, it is not sufficient that there are wills simultaneously made, and similar in their cross provisions, but the existence of a clear and definite contract must be shown, either by proof of an express agreement or by unequivocal circumstances.' 20 Dec. Dig. p. 937. In Rood on Wills, § 70, it is said, under the title 'Joint, Double, Mutual, and Simultaneous Wills': 'Contracts may be joint; for it may be agreed that a joint delivery shall be made by one for all. Therefore a joint will is an instrument unknown to the law. Yet there is no reason why several persons may not execute the same paper as expressing the disposition of their property, which they desire to have made after their deaths, whether the property thus disposed of be owned by them severally or jointly; and such wills should be and generally have been sustained, not as the joint will of all, but as the several will of each. * * *' In principle we cannot distinguish between a single instrument signed by both parties to the contract, and separate instruments alike in kind and character, and intended to effectuate the same purpose. Cawley's Appeal, 136 Pa. 628, 20 A. 567, 10 L. R. A. 93. Continuing, the author last cited says: 'But if to the making of the will be added the death of the maker without revoking it, a sufficient valuable consideration is found to bind the other party and his estate. * * *' If one party to a contract to make mutual or reciprocal wills could not, after the death of the other part, revoke his will, it would seem to follow that he could not elect to take under the statutes of descent, he being defined as an heir by the statute; for the legal effect in each case would be the same--to compel the intestacy of the one first deceased. In discussing the right to revoke a mutual or reciprocal will, Mr. Underhill says: 'If two testators who have united in the execution of a mutual will have devised their property to each other, so that the devises form a mutual consideration, neither, after the death of the other and the probate of the will as to ...