Williams v. Williams

• Decision Date: 19 September 1918
• Citation: 96 S.E. 749
• Parties: WILLIAMS et al. v. WILLIAMS.
• Court: Virginia Supreme Court

96 S.E. 749

WILLIAMS et al.

v.WILLIAMS.

Supreme Court of Appeals of Virginia.

Sept. 19, 1918.

Appeal from Corporation Court of City of Bristol.

Bill by Nancy Williams against T. E. Williams and others. Decree for complainant, and defendants appeal. Affirmed.

White, Penn & Penn and Hutton & Hutton, all of Abingdon, for appellants.

L. P. Summers, of Abingdon, for appellee.

KELLY, J. This is a suit in the nature of a suit for specific performance, brought by one of the beneficiaries under a joint will to enforce the provisions thereof in her favor. The joint testators were Thomas Pippin and Polly Pippin, his wife. The complainant in the suit, the appellee here, is their daughter, Nancy K. Williams, and the active defendants, the appellants here, are her children, Thomas E. and Albert Williams.

The relief prayed for was granted, and the first assignment of error complains of an interlocutory decree overruling a demurrer to the amended bill upon which the cause was heard. The case, as substantially stated therein, was as follows:

That Thomas Pippin owned a tract of 120 acres of land, Polly Pippin, his wife, a tract of 16 acres, and the two, jointly, a third tract of 10 acres; that in March, 1899, the testators, both being then advanced in years, mutually agreed upon a testamentary disposition and division to be made of this property, whereby Polly Pippin was to give all of her lands to Albert K. and Thomas E. Williams, and in consideration of this disposition of Polly Pippin's lands Thomas Pippin was to give his land (with the exception of 3 1/2 acres given to Thomas E. Williams) to Nancy C. Williams and another daughter, Laura Henderson, and her children; that, accordingly, Thomas Pippin and Polly Pippin executed their joint will, devising their lands pursuant to this agreement; that Polly Pippin died in 1911, and the will was admitted to probate as to her in 1913; that in the meantime, on August 2, 1912, Thomas Pippin, who survived his wife and was then about 85 years of age, conveyed to Thomas E. and Albert K. Williams all the lands embraced in the joint will which had been devised therein to Nancy C. Williams and Laura Henderson; that while the paper jointly executed by Thomas and Polly Pippin was called a will by the scrivener whom they secured to assist them in drafting the same, it was, in fact a mutual agreement as to the disposition of their property which Thomas Pippin did not have the power to disregard.

It was also alleged that Thomas Pippin was mentally incompetent to make the deeds, and that the same were procured by undue influence exerted over him, but those allegations are not now material to the controversy.

The demurrer was properly overruled. The doctrine of the earlier authorities was that all joint wills were invalid (Schouler on Wills, § 456; 40 Cyc. 2112); but it is now settled that such wills are good and may be admitted to probate successively upon the death of each testator as his separate will. 40 Cyc. 2112; Davis Will Case, 120 N. C. 9, 26 S. E. 636, 38 L. R. A. 2S9, 58 Am. St. Rep. 771; Ginn v. Edmundson, 173 N. C. 85, 91 S. E. 696. There is no difference in this respect between a joint will which contains mutual and reciprocal provisions and one which does not; either is recognized by the probate courts. There is an important difference, however, in respect to the power of revocation. Generally speaking, wills are in their nature ambulatory or revocable, and cannot be made otherwise, even by the most express terms. This inherent quality of revocability belongs to all wills which do not partake of the nature of a contract. The mere fact that the will is made jointly by two or more testators does not affect the right of either to revoke the same at his pleasure, whether the revocation be made before or after the death of the others; but the fundamental reason for this rule is that every purely testamentary disposition of property Is in the nature of a gift, and a different rule applies where a contract "is disguised under the name and appearance of a will." 2 Minor's Inst. (4th Ed.) 1021; Hale v. Hale, 90 Va. 728-730, 19 S. E. 739. In the latter event the contractual nature of the instrument does not necessarily defeat its character as a will, but enables the party for whose benefit the contract was made to prevent, by resorting to a court of equity, a revocation which would destroy the compact or the trust created thereby.

"Under the head of joint or mutual wills, our courts often discuss this irrevocable quality of a will under those exceptional circumstances which import a valuable and reciprocal consideration. And it is here that courts of equity assume the difficult problem of enforcing a specific performance, so to speak, of the testamentary disposition, or rather of a testamentary compact involving the making of a joint or mutual will in accordance with the mutual agreement of the parties." Schouler on Wills, § 455.

"While a court of probate cannot admit a joint or mutual will to probate as the will of one of the testators who has revoked the same on his part, it has long been well settled that a court of equity, by reason of its extraordinary power to enforce specific performance of contracts and to prevent fraud, may, in a proper cause, enforce the agreement, notwithstanding a revocation by one of the parties, by decree-ing specific performance of the agreement, or by fastening a trust on the property in favor of the beneficiaries of the will revoked in violation of the agreement." 40 Cyc. 2117; Carmichael v. Carmichael, 72 Mich. 76, 40 N. W. 173, 1 L. R. A. 566, 16 Am. St. Rep. 528; Bower v. Daniel, 198 Mo. 289, 95 S. W. 347; Edson v. Parsons, 155 N. Y. 555, 50 N. E. 265.

We have no difficulty in deciding that the facts alleged in the amended bill, if true, entitle the complainant to the relief sought.

The second assignment of error challenges the correctness of the final decree whereby, after all the proof had been taken, the court adjudged that the complainant was entitled to the land devised to her in the will, directed that she recover the possession thereof from the defendants, required them to execute and deliver to her a release deed therefor, and provided for a commissioner's deed for that purpose in case they should not comply with this requirement within 30 days.

There is a contention not very material to the merits of the case, but insisted upon in the brief of counsel, that the decree is erroneous because there was no evidence to show which of the deeds of August 2, 1912, if either, covered the real estate devised by the will to the appellee, or which of the appellants, if either, was in possession of the same, or any part thereof. Of this contention it is sufficient to say that while there was no proof of these facts none was necessary, since they were substantially admitted by the fourth paragraph of the joint answer filed by the appellants.

Upon the really contested question in the case, it is contended by counsel for the appellants that the instrument in question in this case is a "joint will pure and simple, " and that in order for a "joint will to be mutual or reciprocal, it is absolutely essential that the cotestators receive some advantage thereunder from the other."

The usual instances of mutual wills are those in which the mutuality rests upon some benefit to be directly derived from the instrument by the surviving testator, but it is manifest that this feature is not necessary to the mutuality which the authorities recognize as the basis for a binding testamentary compact between two testators. In a note to section 455 of Schouler on Wills, it is said:

"One promises to make a will of all his property in favor of a second person who, in consideration thereof, agrees to make a similar will in favor of the first; the advantage thus to accrue being to such of the two as may happen to survive the other. Or the joint consideration may relate to a disposition in favor of third persons; however, here courts are not so well disposed to enforce the cumbrous arrangement. In short, parties may agree between themselves to execute mutual and reciprocal wills, which, though remaining revocable in a sense, become, upon the death of one, fixed obligations of which equity will assume the enforcement on an ultimate beneficiary's behalf (having no full remedy at law) if the survivor attempts to impair them"—citing Edson v. Parsons, supra.

It is true that in the case of Edson v. Parsons, cited above, the court held that the alleged testamentary compact was not established, and that the case of Frazier v. Patterson, 243 Ill. 80, 90 N. E. 216, 27 L. R. A. (N. S.) 508, 17 Ann. Cas. 1003, cited in the opinion of the corporation court, as set out below, was one in which the instrument involved made certain provisions for the benefit of the surviving testator, as well as for the ultimate beneficiary; but both of these cases may be safely regarded as authority for the proposition that where reciprocal testamentary provisions are made for the benefit of a third party, there is a sufficient consideration for the contractual element in the will (assuming that the contract itself is established) to entitle the beneficiary to enforce the same in equity. This principle is distinctly recognized and succinctly stated in the quotation from Deseumeur v. Rondel, 76 N. J. Eq. 394, 74 Atl. 703, embodied in the opinion of the trial court and incorporated herein.

The trend of modern decision favors the recognition and enforcement of contractual features of joint wills. See note to Robertson v. Robertson, 136 Am. St. Rep. 598.

Undoubtedly the proof of the agreement and consideration must be clear and satisfactory (Schouler on Wills, § 454; 40 Cyc. p. 2118, c; Swann v. Housman, 90 Va. 816, 20 S. E. 830); but in the instant case we think this condition is fully met. Proof of a testamentary compact may expressly appear in the language of the instrument, or it may be supplied by competent...