Rastetter v. Hoenninger

Scott, J.: This is an action in equity to enforce the provisions of a joint will made by Franz Rastetter and Elizabetha Rastetter, his wife. On September 4, 1902, the said Franz and Elizabetha Rastetter jointly executed a paper drawn in the form of a last will and testament as to which they declared “this and this only to be our last mutual and joint will and testament.” The will provided that the survivor should have the income of oúr real and personal property during his or her natural life for his or her own use and benefit, and that “after the death of the survivor of either of us, all our property both real and personal shall be divided in the manner following:” One-half being given to a daughter, Barbara Schmidt, or her children, and the other half being given to a son, John Rastetter, or his children. The survivor was appointed executor or executrix as the case might be. The will concludes, as it began, “ we again declare this and this only to be our last mutual and joint will and testament.” Elizabetha Rastetter died in January, 1905, leaving her surviving her husband and the son and daughter mentioned. in the foregoing will, which was duly admitted to probate March 29, 1905, and letters testamentary issued to Franz Rastetter, who duly qualified and took possession of the joint property. On August 27 1908, Franz Rastetter died leaving a last will and testament dated August 1, 1907, in which he disposed of his property in a manner less advantageous to plaintiffs (who are the children of testator’s son John Rastetter, now deceased) than were the provisions made for them by the joint will of Franz and Elizabetha Rastetter. Joint wills, meaning thereby single wills conjointly executed ' by two persons, are rare and there are few cases to be found in [855] the hooks dealing with them. Mutual wills, meaning thereby separate wills, identical in them provisions but separately executed, are more common. The most frequently cited instance of a will of the former class is that of Dufour v. Pereira (1 Dick. 419) which was made the subject of an extended and learned comment by Mr. Hargrave in his juridical arguments (Vol. 2, p. 277). Perhaps the most noted case of wills of the second class was Lord Walpole v. Lord Orford (3 Ves. Jr. 402). The leading case in our own jurisdiction wherein the subject of mutual wills was exhaustively discussed is Edson v. Parsons (155 N. Y. 555), which may be accepted as the embodiment of the law upon that subject. It seems to be agreed by all the authorities that the survivor in the case of either a joint or mutual will, if bound at all to fulfill its terms, is so bound as by a contract, and the difficulty which has often been found in enforcing mutual wills has been the lack of evidence, dehors the wills themselves, that they were made in pursuance of an agreement between the parties that in case of the death of one testator the other should abide by and carry out the will made by him. It was this difficulty which defeated the plaintiff in Lord Walpole case, and in Edson v. Parsons, in neither of which cases did the wills themselves contain any evidence of such an agreement except such as might be found in the identity of the dispositions contained in the wills sought to be established as mutual wills. As was said by Judge Gray in Edson v. Parsons: “The law permits a person to dispose of his property at his pleasure. He may make a valid agreement binding himself to make a particular testamentary disposition of his property, if it be a reasonable one, and he may validly renounce the power to revoke his . will in the absence of fraud or deceit. Equity will enforce such an agreement, when well and fairly founded, and will not suffer him to defraud and to defeat his obligation by another will. But the court must have full and satisfactory proof of the agreement.” And it was for lack of such proof that the plaintiff in that case failed. When we come to consider a joint will, such as is presented in this case, I am of opinion that the will itself furnishes the requisite proof, not conclusive, perhaps, but sufficient to estab [856] lish an agreement in the absence of any evidence tending to negative it. Judge Gray, speaking of Dufour v. Pereira, remarks: “ In that case, however, the will was in an instrument which was jointly executed hy husband and wife and, while not a conclusive, it was a very material circumstance to be considered.” In Lord Walpole v. Lord Orford, Lord Chancellor Longborough had occasion to refer to Dufour v. Pereira, in which he had been of counsel, and stated that the will, jointly executed hy the husband and wife in that case, was considered hy the court not as a will of the wife (who was the survivor), but as her contract with' her husband for a valuable consideration, and that when she survived and had accepted its terms she hound herself to the conditions under which all the property was given by the husband’s will. In my opinion that just rule should he applied to the present case. The will contained all the necessary elements of a contract; including a valuable consideration. It is true that the paper does not contain the word “ contract” or “ agreement,” and that there is no express promise in it that the survivor will carry out the scheme of disposition to which both agreed. This, however, Seems to me to be immaterial if the fact of an agreement can he found in the instrument itself. That the parties had agreed as to the disposition of their property is evident from the will itself and from the fact that they jointly executed it. The evidence that the will was the result of an agreement is shown upon the face of the paper, in this respect differentiating it from mutual or identical wills which exhibit no intrinsic evidence that they were made in consequence of an agreement between the parties. When Franz Eastetter had accepted the benefits of the joint will'it would be most inequitable to permit him to retain all the advantages and ignore the obligations. In my opinion the judgment appealed from should be reversed and a new trial granted, with costs to appellants to abide the event. McLaughlin and Laughlin, JJ., concurred; Ingraham, P. J., and Clarke, J., dissented.