Weidner v. Crowther

• Decision Date: 24 April 1957
• Docket Number: No. A-5958,A-5958
• Citation: 301 S.W.2d 621,157 Tex. 240
• Parties: Homuth WEIDNER, Petitioner, v. Katy Weidner CROWTHER et al., Respondents.
• Court: Texas Supreme Court

Page 621

301 S.W.2d 621

157 Tex. 240

Homuth WEIDNER, Petitioner, v. Katy Weidner CROWTHER et al., Respondents.

No. A-5958.

Supreme Court of Texas.

April 24, 1957.

Rehearing Denied May 29, 1957.

Alton J. Luckett, Schleyer & Bartram, New Braunfels, Painter, Painter & Cook, Houston, for petitioner.

W. S. Gideon, Austin, Fuchs & Riedel, New Braunfels, for respondents.

CALVERT, Justice.

We rendered and entered judgment and filed opinions herein on February 6, 1957. Both parties have filed motions for rehearing. The motion of respondents is granted, the judgment rendered and entered on February 6th is set aside, the majority and dissenting opinions filed on that date are withdrawn and the judgments of the trial court and Court of Civil Appeals are now affirmed for reasons now to be stated.

Suit was by Katy Weidner Crowther and Agnes Weidner Bose, daughters of Hugo Weidner by a first marriage, against Homuth H. Weidner, son of Hugo Weidner by his second marriage, to establish and enforce the terms of the joint and mutual will of the said Hugo Weidner and his second wife, Sophie Weidner, to the end that an undivided one-third interest in all property constituting a part of the estate of Sophie Weidner at the time of her death be awarded to each of the plaintiffs. The named plaintiffs were joined in the suit by their husbands.

At the conclusion of the evidence the trial judge withdrew the case from the jury and rendered judgment for the plaintiffs for the relief sought. The Court of Civil Appeals affirmed. 291 S.W.2d 472.

On January 12, 1923, Hugo and Sophie Weidner executed a joint will containing the following pertinent provisions:

'First: We hereby will and direct, that after the death of one or either of us, all our just debts or the debts of either of us and claims against our estate or the estate of either of us, shall be paid by the last survivor of us out of our estate.

'Second: We mutually will, direct and devise, that after the death of either of us, all our property and estate, real, personal or mixed, and wether deemed common or separate estate, shall be inherited by and shall at once pass into the unrestricted possession of the last survivor of either of us in feesimple.

'Third: We hereby further will and direct that after the death of the last survivor of us all our property and estate, real, personal or mixed, common or separate, shall be inherited and divided equally, share and share alike, among our three children, to-viz: Agnes May Weidner, Katy Lea Weidner and Homuth H. Weidner.'

Petitioner does not in this Court question but that the will was also a mutual will.

Hugo Weidner died on June 28, 1936, and Sophie Weidner filed an application for the probate of the above-quoted instrument as his will. An order of the court admitting the will to probate was entered on July 13, 1936, and on the same day Sophie Weidner filed in the probate court a 'Notice of Revocation of Will and Application for Administration' reading in part as follows:

'That your Petitioner, after considering the terms and conditions set forth in said will refuses to accept said terms and conditions, and hereby fully and completely revokes said will, and declares same null and void; that your Petitioner refused to qualify as Independent Executrix without bond under the terms of said will, and hereby elects not to accept any other terms and conditions named in said will;

'That your Petitioner is desirous that she retain the status of an heir at law of Hugo Weidner, deceased, and that any property belonging to the community estate of Hugo Weidner and Sophie Weidner pass to your Petitioner under the Statutes of Descent and Distribution of the State of Texas.'

Thereafter Sophie Weidner was appointed and qualified first as temporary and alter as permanent administratrix of the estate of Hugo Weidner, deceased. The administration was closed and the administratrix discharged on September 17, 1936.

On July 31, 1936, Katy Crowther and Agnes Bose, joined by their husbands, executed deeds conveying to Sophie Weidner all property owned or claimed by them under the will of Hugo Weidner, deceased, or as his heirs under the laws of descent and distribution. Sophie Weidner paid $1,400 as consideration for the execution of each of the deeds. Homuth Weidner executed to his mother a similar deed on August 26th and received in consideration therefor her note for $1,400.

On November 30, 1936, Sophie Weidner executed a new will devising all of her property to her son, defendant and petitioner herein, and making him independent executor of the will. Mrs. Weidner died on June 5, 1953. Her will was admitted to probate and petitioner claims all of her property.

The record clearly discloses that Sophie Weidner believed that after her husband's death she could render the mutual will unenforceable by declining to take benefits under it. It was that belief which prompted her to file the 'Notice of Revocation of Will and Application for Administration.' She also believed that once the will was annulled title to Hugo Weidner's property would pass and vest under the laws of descent and distribution, and that each of his three children would inherit a one-third interest therein. It was that belief which prompted her to purchase from the three children such interest as they then owned or claimed as heirs of Hugo Weidner.

Petitioner insists in this Court that a mutual will may not be enforced unless the surviving party thereto has accepted benefits thereunder. By 'benefits' he means an interest in property. He further insists that Article 4610, Vernon's Annotated Texas Civil Statutes, prohibits the enforcement of a mutual will be which husband and wife, by agreement, have undertaken to 'alter the legal orders of descent, either with respect to themselves, in what concerns the inheritance of their children or posterity, which either may have be any other person, or in respect to their common children.' We do not agree.

One party to a mutual will may not render it unenforceable after the death of the other party by declaring a revocation thereof and declining to take benefits under it. Death of one of the parties to a mutual will, or mutual wills, will put effective revocation thereof beyond the legal right and power of the survivor. As long ago as 1769 Lord Chancellor Camden announced the foregoing rule, by way of dictum, in Dufour v. Pereira, 1 Dickens 419. In that case the surviving widow probated a mutual will as the will of her deceased husband and took benefits under it. The question was whether it was in the power of the survivor to revoke the mutual will. On the power of revocation Lord Camden said: "But I cannot be of the opinion that either of them could, during their joint lives, do it secretly; or that, after the death of either, it could be done by the survivor by another will." ¹ See also Baker v. Syfritt, 147 Iowa 49, 125 N.W. 998, 1002-1003; Edson v. Parsons, 155 N.Y. 555, 50 N.E. 265, 268; Frazier v. Patterson, 243 Ill. 80, 90 N.E. 216, 218, 27 L.R.A.,N.S., 508; Smith v. Thompson, 250 Mich. 302, 230 N.W. 156, 73 A.L.R. 1389. In none of the cited cases was the pronouncement of the rule we have here laid down essential to a decision of the case. On the other hand we have found no case, and have been cited to none, in which in an essential pronouncement it was said that death of one of the parties would not prevent an effective revocation of a mutual will. In short, we have found no decided case in which a determination of the question was essential to a decision of the case, as it is in this. An unwillingness to accept all of the dicta in the Dufour case will not debar us from accepting that which we regard as sound.

At the heart of a mutual will lies a contract of the parties. It would be manifestly unjust to permit the surviving party to the contract to disavow it and its obligations, as those obligations are incorporated in their will, after the other party has fully performed by abiding by it until his ability to revise it has been terminated by death.

Acceptance of benefits by the survivor as a condition precedent to enforcement of the terms of a mutual will was not regarded as the determining event in Kirtley v. Spencer, Tex.Civ.App., 222 S.W. 328, writ refused, Wagnon v. Wagnon, Tex.Civ.App., 16 S.W.2d 366, writ refused, or French v. French, Tex.Civ.App., 148 S.W.2d 930, writ dism., correct judg., in each of which the court indicated that probate of the will by the survivor was regarded as the determining event; or in Rossetti v. Benavides, Tex.Civ.App., 195 S.W. 208, writ refused, in which qualification of the survivor as executor was regarded as the determining event. If a husband and wife, each owning 100 acres of land as separate property, should execute a mutual will by which, pursuant to agreement, the husband's land was devised in fee simple to child A and the wife's land was devised in fee simple to child B, there would be no benefits for the survivor to take under the will. Surely it would not be contended that if the husband died first the wife could effectively revoke the will as to her land thus permitting child A to take all of the husband's land under the will and a one-half interest in the wife's land under the laws of descent and distribution.

We recognize that a will is ambulatory in character and that the surviving party to a mutual will may revoke it, but effective revocation will be prevented by a court of equity. In Murphy v. Slaton, 154 Tex. 35, 273 S.W.2d 588, 593 in dealing with the problem we said: 'Annie E. Murphy (the survivor) technically could have revoked her will, but the beneficiaries under the joint (and mutual) will, as probated at the death of B. H. Murphy, would have had a cause of action to come into court with an equitable proceeding and receive their rights under such probated joint will.' Some courts have said that the survivor and those claiming under the survivor would be estopped...