Opinion
Decided December 10, 1928.
Mutual wills — Breach of contract, specific performance or declaration of trust lies — Concurrent execution of wills insufficient to imply contract for mutual wills.
1. Where valid and subsisting agreement is entered into by two parties to leave property to each other, and mutual wills are executed in pursuance thereof, and thereafter contract is broken by one of them after death of the other, action will lie for breach of contract, and in proper case there may be specific performance of contract or declaration of trust as against those taking title to property in question.
2. Although provisions of mutual wills and subsequent circumstances may be such that contract to make mutual wills must be conclusively inferred, mere fact that wills are executed concurrently with full knowledge of their contents on part of testators will not be sufficient to imply such a contract.
APPEAL: Court of Appeals for Summit county.
Mr. Jonathan Taylor, for plaintiff.
Mr. J.B. Morris, for defendants.
The plaintiff, Maude E. Flower, in the petition prays "that she be given specific performance of the terms" of the will made by Caroline J. Flower in 1913, and that property referred to in such will be impressed with a trust. The court of common pleas found the issues in favor of the defendants, Walter T. Flower and others, and plaintiff appeals. The claims of the plaintiff grow out of the execution of alleged mutual wills by George Flower and Caroline J. Flower, husband and wife. By the terms of these wills each left to the other substantially all of his or her property provided the one survived the other. These wills were executed at the same time, were prepared by the same scrivener, were attested by the same witnesses, and each testator had knowledge of the contents of the other's will at the time of execution. There is, however, no other proof whatever of the existence of an agreement between the parties in regard to the making of such wills, and neither will makes any reference to the other.
The husband, George Flower, died before his wife, and she made another last will and testament by which she revoked the one above referred to previously made by her. The contention of the plaintiff is that there is an implied contract between the two testators to leave their property to each other.
There is no question that where a valid and subsisting agreement is entered into by two parties to leave property to each other, and mutual wills are executed in pursuance thereof, and thereafter the contract is broken by one of them after the death of the other, action will lie for such breach of contract, and in a proper case there may be specific performance of the contract, or a declaration of trust as against those who take legal title to the property in question. 40 Cyc., 2118, and cases cited; Brown v. Johanson, 69 Colo. 400, 194 P. 943; Frazier v. Patterson, 243 Ill. 80, 90 N.E. 216, 27 L.R.A. (N.S.), 508, 17 Ann. Cas., 1003.
The provisions of mutual wills and the surrounding circumstances may be such that a contract to make mutual wills must be conclusively inferred. Doyle v. Fischer, Exr., 183 Wis. 599, 198 N.W. 763, 33 A.L.R., 733. The mere fact, however, that wills are executed concurrently, with full knowledge of their contents on the part of the testators, will not be sufficient to imply such a contract. Edson, Exrx., v. Parsons, Exr., 155 N.Y. 555, 50 N.E. 265; Coveney v. Conlin, 20 App. D.C., 303.
In the instant case there is nothing in the surrounding circumstances, or in the wills themselves, from which such inference could be drawn. The record discloses only that alleged mutual wills were executed concurrently with full knowledge of their contents on the part of both testators.
A decree will be entered in favor of the defendants.
Decree for defendants.
RICHARDS and LLOYD, JJ., concur.
RICHARDS, WILLIAMS and LLOYD, JJ., of the Sixth Appellate District, sitting in place of WASHBURN, FUNK and PARDEE, JJ., of the Ninth Appellate District.