Burkhart v. Rogers

HEFNER, J. This appeal is prosecuted from the judgment of the district court of Osage county admitting the will of Rita Smith to probate. W. E. Smith, the husband of Rita Smith, first married a Cherokee Indian, and by this union he had one child, Ella Rogers, the defendant in error herein. His second wife was Minnie Kyle Smith, and after her death he married her sister, Rita Kyle. On the 2nd daj' of September, 1921, W. E. Smith and Rita Smith executed a will which is as follows: “Know All Men By These Presents: “That we, W. E. Smith and Rita Smith, Osage allottee No. 284, husband and wife, of Fairfax, Osage county, Oklahoma, both being of lawful age and of sound mind and memory, do make, publish and declare this instrument to be jointly as well as sev'erally, our last will and testament, hereby revoking all former wills. “1. All just debts and funeral expenses shall at all times be fully paid. “2. We thereafter desire that all property, real as well as personal, of which we, or either of us, may be possessed at the time of the decease of either of us, shall pass to the survior in fee, and to be and re-remain his or her absolute property. “3. In the event of our simultaneous death, and that neither of us survive the other, we give, devise, and bequeath our property and estate as follows, to wit; W. E. Smith gives, devises and bequeaths all the property and estate of which he dies seized or possessed to his father, Thomas Smith, and Rita Smith gives, devises, and bequeaths the sum of five and no /100 dollars to her sister, Mollie Burkhart, and all the rest, remainder and residue of the property and estate of which she dies seized or possessed she gives, devises, and bequeaths to her half-sister, Grace Bigheart, or her bodily heirs, in the event she is not living. “4. In the event that W. E. Smith dies before the death of said Rita Smith, said Rita Smith further gives, devises and bequeaths the sum of five and no /100 dollars to her sister Mollie Burkhart, and all the rest, remainder and residue of the property and estate of which she dies seized or possessed to her said half sister Grace Bigheart, or her bodily heirs in the event she is not living. “In witness whereof we have hereunto set our hands this 2nd day of September, 1921.” Rita Smith died on the 10th day of March, 1923, and W. E. Smith died four days later. When the above will was executed, W. E. Smith did not disclose to Rita Smith that he had a daughter, Ella Rogers, by his first wife. The will does not show on its face an intention to disinherit her, and since this intention is not so shown, she takes as a forced heir one-half of the estate, or the same part she would have inherited had no will been executed. If W. E. Smith had died first, Ella Rogers would have inherited one-half of his estate *221 under the statute as a forced heir, and Rita Smith would have taken the other half. The will, therefore, was of no advantage to her, because she could take no greater interest under it than she inherited under the statute. As to Rita Smith, the will was therefore ineffective. It is urged that this is a joint and reciprocal will and the makers intended the will should he effective as the will of both or neither; and that since the will was not effective as to Rita Smith in event W. E. Smith preceded her in death, it could not be effective as to her in event she preceded him in death. Joint and reciprocal wills have not always been but are now generally sustained by the courts. A mutual or reciprocal will is one in which two or more persons make mutual provisions in favor of each other. There can be no doubt but that the will under consideration is a mutual or reciprocal will, because it directed that, all property of which either was possessed at the time of death should pass to the survivor in fee and to be and remain his or her absolute property. This question was considered in Gerbrich v. Freitag (Ill.) 73 N. E. 338. In that case a husband and wife each owned property and made a joint and reciprocal will, each devising to the other the beneficial use for life of the property of the one dying first. The validity of the will was questioned, and it was held a husband and wife may bp joint will devise their respective property to each other. In the case of Peoria Humane Society v. McMurtrie (Ill.) 82 N. E. 319, the court had under consideration a joint and mutual will wherein a mother and son made a joint and mutual will and the survivor was given all of the property. The son married after the will was made and died leaving a widow. He made a will after his marriage and it was admitted to probate and his estate settled. Thereafter, the mother died and application was made to probate the joint and mutual will made by her and her son. Probate was denied, and on appeal the appellate court said: “It is clear that the makers intended that the portion of the will in question should take effect as the will of both or neither, and it was to be operative as a will on condition that neither of the makers should otherwise dispose of his or her property by an individual will.” The disposition of property by a reciprocal will was again under consideration in the case of Frazier v. Patterson (Ill.) 90 N. E. 216. A husband and wife each owned land and a joint will was made devising a life estate in the survivor, and at the death of the survivor to a daughter, and after her death to her issue. The husband died first and his will was probated, and the widow took possession of the property until her death. The daughter preceded the mother in death and left children surviving her. After the death of the daughter the widow executed a will wherein she made a different disposition of her property from that provided in the joint will. On appeal the only issue was whether the joint will on its face proved a compact or agreement to make a will mutually disposing of their property, each for and in consideration of the will of the other. In reference to this matter there is a very learned discussion and the court said': “A will that is both joint and mutual is one executed jointly by two or more persons, the provisions of which are reciprocal, and which shows on its face that the devises are made one in consideration of the other. * * * Mutual wills — that is, where two persons execute wills reciprocal in their provisions but separate instruments — may or may not be revocable at the pleasure of either party, according to the circumstances and understanding upon which they were executed. To deprive either party of the right to revoke such mutual will it is necessary to prove, by clear and satisfactory evidence, that such wills were executed in pursuance of a contract or a compact between the parties, and that each is the consideration for the other: and even in eases where mutual wills have been executed in pursuance to a compact or agreement between the parties, the law appears to be well settled that either party may, during the lifetime of both, withdraw from the compact and revoke the will as to him. A joint and mutual will is revocable during the joint lives by either party, so far as relates to his own disposition, upon giving notice to the other, hut it becomes irrevocable after the death of one of them if the survivor takes advantage of the provisions made by the other. * * * If two persons make wills, each devising his property to the other, there is no necessary inference that the wills were the result of any mutual or reciprocal agreement or understanding. Such wills might be executed without either party knowing that the other had executed his will; but, where the parties execute their wills by the same instrument, it is not possible that such course could be adopted without some previous understanding dr agreement between them. Bach would necessarily know what disposition the other had made of his property. This inference is especially strong where the parties are husband and wife, and where they have a common interest In the welfare of the devisees. In the case at *222 bar the parties had one daughter. They had a mutual interest in her. They desired that she should have the enjoyment of their real estate during her life and at her death her children should take it in fee. If evidence of a mutual compact is necessary in such case, that evidence is afforded by what the parties did. We cannot see how the situation would be any different if witnesses had testified that they heard this husband and wife discuss what disposition they would make of their respective estates, and that they agreed with each other that they would make a joint will such as they did make. The fact that they made such will is satisfactory proof to our minds that it was done in accordance with their mutual compact to dispose of their property in this manner." In the case of Martin v. Helms et al., 149 N. E. 770, the Supreme Court of Illinois had under consideration the joint will of a husband and wife and the effect thereof when the will is ineffective as to one of them. The husband preceded the wife in death. The principal objection to the probate of the will was that it purported to be a joint and mutual will, but was not executed by Mrs. Helms in the manner required by statute. It was contended that the instrument could not be probated as the will of Mrs. Helms at her death, and for that reason it was not a valid will of Mrs. Helms, and it could not be valid as to her husband. In that case the court said: “In effect the will here shows Helms and wife entered into an agreement that they would jointly execute a will giving to the survivor all the property of each of them. The husband performed his part of the agreement by executing the will, but the wife never did. This court said in Frazier v. Patterson, supra, that when a husband and wife execute a joint and mutual will it is not possible that it would have been done without an understanding and agreement between them. In Peoria Humane Society v. McMurtrie, supra, the court said it was clear Mrs. Rouse and her son intended the will should take effect as to both or neither. In that ease the joint and mutual will was subject to the right to make an individual will. Neither of those cases involved the direct question here presented, but they recognize that joint, mutual, and reciprocal wills are made pursuant to an agreement and understanding and must take effect as to both parties or neither. The will here involved could not take effect as to Mrs. Helms. If she had died first, the instrument could not have been admitted to probate as her will, because it had not been executed in compliance with the statute. Her husband executed the will in consideration • of her promise to execute it. She failed to keep her promise, and so the consideration of the husband’s execution of the will failed. Can the instrument be a valid will disposing of the husband’s estate to his wife when the consideration for making it — his wife’s promise to devise to him her estate if he survived her — has wholly failed? Under the peculiar circumstances of this case, we think the instrument had to be valid as to both or it was invalid as to both. It purported to be a joint, mutual, and reciprocal will of both, for the benefit of the survivor. It was, in fact, the will of the husband only. It could not be doubted that if the wife had by fraud induced her husband to execute the will, but deceived him by not executing it herself, it would' not be his will. Here there was no actual fraud and no such charge can be made, but the result is the same as if a fraud had been perpetrated by Mrs. Helms. It was the intention of the parties that the instrument should be effective as the will of both and give the survivor the estate of the one dying first. This intention and agreement were not carried out and it never became the will of either.” In the instant case, assuming that W. E. Smith preceded his wife in death and no will had been .written, then under the "first division of section 11301, C. O. S. 1921, Rita Smith would have inherited one-half of his estate and Ella Rogers would have inherited the other half. Again supposing that W. E. Smith preceded his wife in death, since there was no intention shown in his will to disinherit his daughter, Ella Rogers, she would take as a forced heir the same proportion of his estate as she would have taken had no will been written. She therefore, under the facts in this case, would take one-half of the estate. Then the most the wife, Rita Smith, could take under the will was one-half pf the estate, the same interest she would have taken had no will been written. The will, therefore, conveyed no interest in the estate of the husband to her. When W. E. Smith and Rita Smith executed this will, what was their understanding as to the estate the survivor would receive under it? Rita Smith understood by the terms of the will that if 'W. E. Smith died first, she would inherit all of the estate that he owned at the time of his death. With this understanding, she executed the will directing that all the property she should be possessed of at the time of her death should go to W. E. Smith. The terms of the will on the part of W. E. Smith could not be carried out in accordance with the directions therein, because he had a daughter by a previous marriage who had in no way been mentioned in the will and who, under the law, on his death, would take one-half of his estate as his heir. Under the terms of the will, Rita Smith *223 was to take all of His estate. Under tlie facts of tliis case and under tlie law, site could only take tliat portion tliat was given to lier as an heir, and therefore the will gave her nothing and was ineffective as to her. Suppose W. E. Smith had caused her to execute the will and represented to her that he would execute it, but in fact never ■did execute it. This would be a fraud upon Rita Smith, and the will could not be probated as her will. It is the same as if he had never executed it, because nothing in addition to what the statute gave her as an heir passed to her by virtue of the execution thereof by him and, in law, it was a fraud upon her. . We concede that there was no actual fraud and no intention to deliberately deceive Rita Smith, but the result is the same as if a fraud had been intentionally perpetrated by him. It was the intention of Smith and his wife that the instrument should be effective as to both and give the survivor the estate of the one dying first. This intention could blot be carried out in so far as YY. E. Smith’s estate was concerned, because of the forced heir, and since this is true, it never became the will of Rita Smith. Since the will is mutual and reciprocal and is ineffective as to W. E. Smith, it necessarily follows that it is ineffective as to Rita Smith. It is immaterial as to which of the parties died first, because it is clear that the makers intended the will in question should take effect as the will of both or neither, and since it was ineffective as to Rita Smith, it was ineffective as to W. E. Smith. The alleged will of YY. E. Smith was before this court in the case of Rogers et al. v. Mosier et al., 121 Okla. 213, 245 Pac. 36. It was there held the instrument declared upon could not be probated as his will. There are issues in the case at bar that were not before this court when the alleged will of W. E. Smith was here. Under the facts and issues presented herein, we do not think the instrument can be probated as the will of Rita Smith, and the ease is therefore reversed, with instructions to deny the application for the probate of the will. BRANSON, O. X, MASON, Y. O. J., and HARRISON and RILEY, JJ., concur. . LESTER and HUNT, JJ., dissent.