Shook v. Bell

• Decision Date: 21 August 1979
• Docket Number: No. 5086,5086
• Citation: 599 P.2d 1320
• Parties: George SHOOK, Administrator of the Estate of Anna Moyer, Deceased, Appellant (Plaintiff below), v. Juanita BELL, Executrix of the Estate of Sylvia Meda Sytsma, Deceased, and Verda Rasmussen, Ardie Collingsworth and Juanita Bell, as Legatees and devisees of Sylvia Meda Sytsma, Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 1320

599 P.2d 1320

George SHOOK, Administrator of the Estate of Anna Moyer, Deceased, Appellant (Plaintiff below), v. Juanita BELL, Executrix of the Estate of Sylvia Meda Sytsma, Deceased, and Verda Rasmussen, Ardie Collingsworth and Juanita Bell, as Legatees and devisees of Sylvia Meda Sytsma, Appellees (Defendants below).

No. 5086.

Supreme Court of Wyoming.

Aug. 21, 1979.

Edward S. Halsey, Newscastle, for appellant.

Thomas L. Whitley and Gordon W. Schukei, Newcastle, for appellees.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROSE, Justice.

Prior to their deaths, Frank J. and Sylvia M. Sytsma, husband and wife, lived in Weston County, Wyoming, and held the principal part of their properties as tenants by the entirety, although Frank was the sole owner of some money which went to Sylvia under his will at the time of his death. On October 11, 1976, Frank and Sylvia executed separate wills, in which each left all of his or her property to the other, providing, however, if the named beneficiary-spouse did not survive the testator or testatrix, each will contemplated that one-half of the estate would go to Anna Moyer, Frank's sister, and that one-half would go to Verda Rasmussen, Sylvia's niece.

Frank died first, whereupon his interests which passed thereunder were distributed to Sylvia, but the great majority of his holdings became hers as the survivor in the tenancy by the entireties. Sylvia, prior to her death, rewrote her will, did not provide for Anna Moyer, and, at death, was in possession and ownership of most of the property she had previously held jointly with Frank.

Although the courts have not been uniform in their use and definitions of the terms, we define "joint" wills, "reciprocal" wills, and "mutual" wills as follows: A "joint" will is a single testamentary instrument constituting or containing the wills of two or more persons, and jointly executed by them. "Reciprocal" wills are those in which each of two or more testators makes a testamentary disposition in favor of the other. "Mutual" wills are two or more separate instruments, each executed by separate testators and manifesting a common intention to dispose of their property in a particular manner. We do not include as part of the definition of a mutual will, as some courts do, the elements of execution by each testator pursuant to an agreement, each in consideration of the other. 1 Bowe-Parker: Page on Wills, §§ 11.1 and 11.3; 97 C.J.S. Wills § 1364e(1); 79 Am.Jur.2d, Wills, § 754. Under our definitions, the wills executed by Frank and Sylvia on October 11, 1976, were mutual and reciprocal.

Anna Moyer ¹ filed this action to impose a constructive trust upon one-half of Sylvia's estate in reliance upon the terms of Frank's will, together with Sylvia's and Frank's alleged contract to execute mutual and reciprocal wills. Her theory was that Sylvia and Frank had entered into an agreement to execute, and did execute, these mutual and reciprocal wills, in which Anna Moyer was a beneficiary, and since they had not been revoked before the death of Frank, and since Sylvia had taken advantage of the provisions of Frank's will, Sylvia's subsequent revocation was a breach of the agreement to execute the mutual and reciprocal wills. The Administrator for Anna Moyer's estate further contends that the heirs of Anna are entitled to recover on the contract out of which the mutual wills evolve and, of which contract, the wills were a part.

At the close of plaintiff's case, the defendants made a motion to dismiss under Rule 41(b)(1), W.R.C.P. ², and the judge granted it.

The court, in entering its Judgment of dismissal against the plaintiff, found:

". . . (1) that the motion is well taken and should be granted; (2) that the plaintiff has failed in the proof of her case; (3) that there was no agreement between Frank John Sytsma and Sylvia Meda Sytsma to execute reciprocal wills; (4) that each of the wills dated October 11, 1976, made by Frank John Sytsma and Sylvia Meda Sytsma set forth whatever agreement there may have been between Frank John Sytsma and Sylvia Meda Sytsma and neither of the said wills contained a provision not to revoke the wills; (5) that Frank John Sytsma and Sylvia Meda Sytsma could have provided by a provision in each will that said wills could not be revoked if that was their intent; (6) that there is no evidence that anything other than $262.72 in cash passed to Sylvia Meda Sytsma by the terms of the will of Frank John Sytsma and only the property so passing under the will could be the subject of this action even if an agreement for binding reciprocal wills had been found to exist and; (7) generally for the defendant and against the plaintiff on all issues in this case."

The questions for resolve here are whether or not there was at least prima facie evidence of a binding agreement between Frank and Sylvia with respect to which the mutual and reciprocal wills are a part and which are not revoked prior to his death. If that question may be answered affirmatively, the further question is whether or not the contract will support the imposition of a constructive trust in favor of Anna Moyer or her heirs upon one-half of Frank's and Sylvia's jointly held property, together with one-half of any funds Sylvia received under the will and which were in her possession at the time of her decease.

We will reverse for trial on the merits.

In considering a motion to dismiss by the defendant under Rule 41(b)(1), W.R.C.P., we are bound by the rule which says that the entire evidence must be viewed most favorably in behalf of plaintiff, giving him the benefit of all reasonable inferences which may be deduced therefrom. Arbenz v. Bebout, Wyo., 444 P.2d 317 (1968).

In Arbenz, we held that where the plaintiff has failed in his proof, the motion should be granted, where plaintiff's proof is overwhelming, the motion should be denied, and where plaintiff has presented a Prima facie case

" '. . . based on unimpeached evidence we are of the opinion that the trial judge should not grant the motion even though he is the trier of the facts and may not himself feel at that point in the trial that the plaintiff has sustained his burden of proof. We believe that in the latter situation the trial judge should follow the alternative offered by the rule wherein it is provided that he " * * * may decline to render any judgment until the close of all the evidence", and deny the motion. * * * ' " Arbenz, supra, quoting with approval from Rogge v. Weaver, Alaska, 368 P.2d 810, 813.

See, also, Angus Hunt Ranch, Inc. v. REB, Inc., Wyo., 577 P.2d 645, 648 (1978); and Kure v. Chevrolet Motor Division, Wyo., 581 P.2d 603, 606-607 (1978).

We are confronted, then, with an issue which asks whether or not the plaintiff had made out at least a prima facie case based on unimpeached testimony. What was his obligation in this regard?

A prima facie case would have been structured if the plaintiff could have proven, with unimpeached testimony, a binding agreement to execute mutual and reciprocal wills which was not revoked prior to Frank's death, together with a breach thereof by Sylvia. The impeachment requirement of the Arbenz rule was satisfied. There was no impeachment of the relevant testimony and the record reflects clearly that if there was, in fact, a valid agreement between Sylvia and Frank, Sylvia breached it by executing a subsequent will after Frank's death which recited the intent to revoke her prior will. The only question remaining is this: Was there evidence of an enforceable contract between Frank and Sylvia upon which the Administrator of the estate of Anna could rely?

An oral agreement to execute reciprocal wills of this nature is binding as between a husband and a wife the survivor who has benefited by the contract is estopped from revoking the contract, and devisees and legatees of the testators can enforce it. In In re Stringer's Estate, 80 Wyo. 389, 343 P.2d 508 (1958), rehearing denied and opinion modified, 80 Wyo. 389, 345 P.2d 786, we quoted with approval the rule of Brown v. Superior Court, 34 Cal.2d 559, 564, 212 P.2d 878, 881:

" ' "Where two parties agreed to make mutual wills, each promising to dispose of his property to the other or, if the other be dead, to certain third persons, and one of the parties performs by leaving his property to the other, the intended devisees and legatees are entitled to enforce their rights as beneficiaries under the agreement. The contracting party who survives becomes estopped from making any other or different disposition of the property, and his obligations under the agreement become absolutely irrevocable and enforceable against him, at least where he avails himself of the provisions of decedent's will in his favor and accepts substantial benefits thereunder." ' " 343 P.2d at 514.

Additionally, we cited:

"97 C.J.S. Wills § 1366c, p. 298, and cited authorities. And to the same effect is 57 Am.Jur., Wills, § 174, p. 154."

In Flohr v. Walker, Wyo., 520 P.2d 833, 837 (1974), we said:

"The general rule seems to be that a joint and mutual will executed pursuant to an agreement based on valuable consideration is contractual as well as testamentary and becomes an irrevocable obligation on the part of the surviving testator upon the death of the other party testate under a will which is in accord with the terms of the agreement. In re Estate of Wade, 202 Kan. 380, 449 P.2d 488, 493; Godwin v. Wachovia Bank & Trust Company, 259 N.C. 520, 131 S.E.2d 456, 462-463; Alocco v. Fouche, 190 Cal.App.2d 244, 11 Cal.Rptr. 818, 822; 57 Am.Jur. Wills, § 712; 97 C.J.S. Wills, § 1367e(2), p. 307. . . ."

Although Flohr v. Walker was concerned with a "joint and mutual" will, the foregoing rule is equally applicable to a mutual will which is not joint.

Further, in Flohr, supra, we quoted what we deemed to be the general rule from 1 Bowe-Parker: Page on Wills, § 10.3, pp. 441-442 (1960):

"...