Opinion
No. 51.
Argued October 31, 1968. —
Decided November 26, 1968.
APPEAL from an order of the county court of Iron county: ARNE H. WICKLUND, Judge. Reversed.
For the appellant there was a brief by Roberts, Boardman, Suhr Curry of Madison, attorneys, and Santini, Jacobs McDonald of Ironwood, Michigan, of counsel, and oral argument by Bradway A. Liddle, Jr., of Madison.
For the respondent there was a brief and oral argument by L. William Connolly of Milwaukee.
On October 9, 1961, George W. Flanagan and his wife, Evelyn Ada Flanagan, executed a joint, mutual and reciprocal will, providing in pertinent part as follows:
"Know all men by these presents, that we, George W. Flanagan, of Mercer, Iron County, Wisconsin, and Evelyn Ada Flanagan, his wife, of Mercer, Iron County, Wisconsin, being of sound, disposing mind and memory and desirous of disposing of our worldly assets after our deaths, respectively do make, publish and declare this and none other to be our and each of our last Will and Testament, hereby revoking all and any singular other Will or Wills by us or either of us at any time made.
". . .
"Second — We give, devise and bequeath to each other, respectively all such estate, right, title, and interest as we respectively hold, possess and enjoy in and to all real estate and personal property, wherever located, either owned by us jointly or severally, for his or her own use and benefit forever.
". . .
"Fourth — It is the intention of this Testament that after the decease of both of us, the whole of said real estate and personal property of whatever nature and wherever located that we may own at the time of the decease of the survivor of us, shall go to, and be held and enjoyed by the said Robert W. Flanagan, also known as Robert W. Anderson, if living. If not living, such estate shall vest in his lawful issue and children as are living, in equal shares."
Thereafter, George W. Flanagan died and the will was admitted to probate as his last will and testament. Evelyn Ada Flanagan then married the respondent, Jack C. Chayka. Evelyn Ada Flanagan Chayka died October 31, 1966, and the October 9, 1961, will was admitted to probate as her last will and testament. On motions for construction of the will and for a declaration of rights in $32,000 in bearer bonds allegedly given by Evelyn Ada Flanagan Chayka to Jack C. Chayka, the trial court found the will not to be founded on contract and refused to require respondent to surrender deposit or be enjoined from disposing of the bonds involved. The administrator with the will annexed of the estate of Evelyn Ada Flanagan Chayka appeals from the order.
The only question raised on appeal is whether the instant will, being joint, mutual and reciprocal, was founded on contract and thus binding on the survivor. The trial court held the will not to be founded on contract.
A second issue as to the entitlement to possession of the bearer bonds has become moot.
In the present case, respondent made a motion for a construction of the will but offered no evidence as to whether an underlying contract to execute the October 9, 1961, will existed. Appellant contends that, in the absence of any testimony or evidence to the contrary, the joint, mutual, reciprocal will itself is prima facie evidence of such a contract. Appellant submits that, under the Wisconsin cases, there is a presumption that such joint will is founded upon a contract to execute, and that such presumption stands unrebutted in this case. We agree.
Forty-four years ago, this court held that a contract to make mutual and reciprocal wills may be conclusively presumed or inferred from the provisions of the will themselves, especially if there is a jointly executed will.
"The fact that these wills constitute but a single document, that they were executed at the same time, that each of the testators knew of the provisions made in the will of the other. . . . conclusively indicates that the two wills resulted from a mutual agreement between the testators and that their provisions were in accordance with such prior agreement." Doyle v. Fischer (1924), 183 Wis. 599, 608, 198 N.W. 763.
Subsequently, this court made clear that such inference of contractual basis arises even though jointly executed wills do not expressly purport to be based upon contract, do not contain the word "contract" or include an express promise that the survivor will carry out the dispositions in the will. It is important that the legal consequences of executing a joint, mutual, and reciprocal will remain clear, fixed and predictable. Conceding some persuasiveness to arguments for a contrary holding, this court recently reaffirmed the presumption of an accompanying contract to execute where a joint reciprocal will was involved.
"Here we have a situation where the surviving testator, Kreszensia Schwartz, received all of her husband's property by reason of the joint will, when, if he had died intestate, she would only have received part. Other material facts are that the wills of both testators were embodied in a single instrument and each left all of testator's property to the survivor, the children to take upon the death of the survivor, regardless of which testator died first.
"Because of these facts, we consider that the instant appeal is ruled by the decision of this court in Doyle v. Fischer, supra." Schwartz v. Schwartz (1956), 273 Wis. 404, 410, 78 N.W.2d 912.
"Whatever infirmities are believed to exist in the Doyle-Schwartz rationale, nevertheless this jurisdiction is, on the basis of stare decisis, committed to it.
"We conclude therefore that the language of the joint reciprocal wills of 1948 and 1949, though containing no contractual language, does give rise to the conclusive inference that they were executed pursuant to a preexisting agreement that was contractual in nature." Estate of Hoeppner (1966), 32 Wis.2d 339, 344, 145 N.W.2d 754.
We hold that, under the facts here present, a conclusive inference arises that the joint, mutual and reciprocal will was executed pursuant to a contract binding upon the survivor.
By the Court. — Order reversed.