Wilson. v. Starbuck., (No. 8176)

• Decision Date: 05 November 1935
• Docket Number: (No. 8176)
• Citation: 116 W.Va. 554
• Court: West Virginia Supreme Court
• Parties: Melissa Wilson et al. v. Josie Starbuck et al.

116 W.Va. 554

Melissa Wilson et al.

v.Josie Starbuck et al.

(No. 8176)

Supreme Court of Appeals of West Virginia.

Submitted October 8, 1935.

Decided November 5, 1935.

1. Wills

Where the circumstances surrounding the making of separate but identical wills by husband and wife by the terms of which each was made the sole beneficiary of the other, are such that all the elements of the making of a joint will are present, the wills will be regarded as tantamount to a joint will and their reciprocal provisions as evidencing a contractual agreement between the makers. Underwood v. Myer, 107 W. Va. 57, 146 S. E. 896.

2. Wills

Where separate wills are made between husband and wife under such circumstances as to evidence that they were made pursuant to a contractual understanding, and by the terms of the wills it is apparent that their sole purpose was to make the survivor the sole beneficiary of the first to die, the death of one renders inoperative the will of the survivor.

Error to Circuit Court, Summers County.

Proceeding between Melissa Wilson and others and Josie Starbuck and others for probate of the alleged last will and testament of Peter Cales, deceased. To review an adverse order, the former bring error.

Reversed and remanded.

J. Raymond Gordon and W. C. Haythe, for plaintiffs in error.

Wm. H. Sawyers and W. A. Brown, for defendants in error.

Kenna, Judge:

On the 5th day of December, 1934, in a proceeding on appeal under Code, 41-5-7, from an order of the County Court of Summers County probating the will of Peter Cales, the Circuit Court of that county entered its order probating a certain paper dated January 2, 1925, as and for the last will and testament of Peter Cales. To that order, Melissa Wilson and others, the children by his first marriage, heirs-at-law and distributees of Peter Cales, prosecute this writ of error. The will in question reads as follows:

"I, Peter Cales, of Bellepoint, West Virginia, do make this my last will and Testament.

"First: I direct that all of my just debts be paid.

"Item Second: I give, devise and bequeath unto my present wife, A. V. Cales, all of my property, both real, personal and mixed and wheresoever the same is situate, in fee simple absolute; she to do with the same as she sees proper.

'' Item Third: I appoint and designate my said wife, A. V. Cales, as the Executrix of this Will, and direct that no Bond shall be required of her, nor shall there by any Appraisement necessary.

"Witness my hand and seal this the 2nd day of January, 1925.

(Signed) Peter Cales (Seal)

Here follows a proper attestation clause; with the signatures of three attesting witnesses.

Josie Starbuck and others, also children by a former marriage and heirs-at-law and distributees of Amanda V. Cales, deceased wife of Peter Cales, are the defendants in error.

Amanda V. Cales died before Peter Cales, so that the interests of the parties turn upon the fact that if the probate of the will stands, then, under the statute, the heirs-at-law and distributees of Amanda V. Cales are the beneficiaries, whereas, if the probate of the will fails, then Peter Cales died intestate, and his heirs-at-law and distributees are the beneficiaries.

It was shown in the circuit court that on January 2, 1925, Peter Cales and Amanda V. Cales went to the office of Judge Miller, in the city of Hinton, where they both resided, and that on that day they there executed wills in which each was made the sole and absolute beneficiary of the entire estate of the other. The phraseology of the wills is almost exactly the same, and to all intents and purposes, save as to the beneficiary, they may be regarded as identical. The subscribing witnesses, J. E. Hedrick, George Hepburn and B. Z. Garden, were called to Judge Miller's office and there, in the presence of Judge Miller, Peter Cales and Amanda Cales, and of each other, they subscribed, as witnesses, both wills. These facts were established by the subscribing witnesses who also testified to the capacity of Peter Cales at the time his will was signed and declared.

Upon the wills themselves, and upon this background of uncontroverted circumstances, the plaintiffs in error, opposed to the probate, take the position that the wills of Peter Cales and Amanda V. Cales were mutual and reciprocal wills made pursuant to a contract between them based upon an adequate consideration to sustain it, the sole purpose of which was to make the survivor of them the beneficiary of the one to die first, and that this condition was fully satisfied upon the death of Amanda V. Cales, leaving the will of Peter Cales, not revoked, but inoperative. They point to the fact that in neither will are any other beneficiaries named either upon the death of the named beneficiary or otherwise. The defendants in error take the position:

First, that the record fails to disclose that the two wills are mutual and reciprocal wills based upon a valid consideration which will sustain them as a matter of contract.

Second, that even though they are mutual and reciprocal wills, the death of the first testator, so far from making the will of the second testator inoperative, renders it irrevocable and does not operate to revoke the will of the second testator in any of the ways named in Code, 41-1-7.

It is admitted in argument by counsel for plaintiffs in error that the will of Peter Cales was not revoked; so that we do not deem it necessary to discuss that question under Code, 41-1-7.

From this record, the sole questions for decision are: (1) whether the wills of Peter Cales and Amanda V. Cales were mutual and reciprocal wills based upon a contract to make them, and (2) whether, if that is so, the death of the first testator operated to entirely fulfill the purpose of the mutual and reciprocal wills and therefore rendered inoperative the will of the second to die.

We pass over the question as to whether the wills themselves are such a memorandum as would take the contract to make mutual and reciprocal wills for the devise of land out of the statute of frauds, for the reason that if such contract is established by parol, then, in our opinion, such full performance of that contract on the part of Amanda V. Cales has taken place by reason of her death with her own will remaining in full force and effect, as to take the case out of the statute. Canada v. Ihmsen, Administrator, 33 Wyo. 439, 240 P. 927, 43 A. L. R. 1010, 1016, and note; Smith v. Black, 100 W. Va. 433, 130 S. E. 657; Burdine v. Burdine, 98 Va. 515, 36 S. E. 992, 81 Am. St. Rep. 741.

The authorities seem to be in agreement on the proposition that where one party to a contract to make mutual wills has fully performed the undertaking and has died, the contract is enforceable in equity against the estate of the survivor. In the case of a joint will between husband and wife, this court is committed by the case of Underwood v. Myer, 107 W. Va 57, 146 S. E. 896, to what, in number of cases, may be the minority rule, to the effect that the reciprocal provisions of the will prima facie evidence a contractual relationship between the makers. See Annotation in 43 A. L. R, at page 1027, and 60 A. L. R. at page 629. The rule of the Underwood case is simple and direct, as against the rather strained, if logical, conclusion the other way. The reasoning upon which this holding is based seems to be that the fact of execution of a joint will is of itself proof positive that both of the parties had full knowledge of the terms and provisions of the will, that the reciprocal dispositions show a consideration moving from each to the other, and hence that it must be supposed that they entered into the agreement in a contractual sense. If this be true, and if it be shown that, instead of executing one instrument, the makers executed separate instruments under such circumstances as that their common knowledge of the terms of the wills and an exchange of reciprocal provisions clearly was contemplated, then it would have to be said that a legal situation tantamount to the making of a joint will had been established, and that the reasoning adopted by this Court in Underwood v. Myer, 107 W. Va. 57, 146 S. E. 896, is applicable. In the case before us, there can be hut little doubt, considering the inescapable inference that these wills were drawn by the same attorney, the established fact that they were executed in the same office with both testators present, that the same attesting witnesses signed both wills, and that the reading of one would convey full information as to the terms of the other, with the exception of the beneficiary, that...