In re the Judicial Settlement of the Account of Klingel

Ketcham, S. This accounting is made under a will mutually executed by the decedent and his wife. Its opening is in — 77 — the usual form. Each testator directs the payment of his or her debts and funeral and testamentary expenses. Then each in the event of his or her death leaving the other gives all of his or her estate to such other. The only remaining disposition is as follows: “ Fourth. In the event we both should die at the same time by some calamity, accident, or otherwise die together, without an opportunity for the survivor of us to make any other testamentary disposition of the estate of which said survivor should be seized or possessed, then we both doth hereby devise and bequeath to our nephew John Klingel and Minnie Klingel, his wife, or the survivor of them, all the estate which we or either of us shall be seized or possessed of.” The husband survived the wife nearly two years. He repeatedly said after her death that he had left all his property to Minnie Klingel. John Klingel died before the testator’s death. There are no next of kin of the decedent. It is sought to liken this will to those of which it is said that when the event which constitutes the contingency expressed in the instrument can be construed to have been the occasion for making the will at the particular time when made, rather than as a reason for making it in a particular way, the will should be so construed that its provisions shall survive the contingency. Obviously this rule should be limited to a case where the whole will is resolved upon because of a fear of death from a specific menace. Where the task of making a will is entered upon with no sign of any incentive thereto except such as accompanies the ordinary will, words upon which only one of the gifts is limited must be construed as a condition if that would generally be their meaning. In Page on Wills, section 64, the author, in contrasting the inharmonious cases in which expressions of contingency have been variously construed, says: — 78 — “ It sometimes happens that the contingency applies to one or more clauses of the will. They are to be valid or not according to the outcome of the event; the rest of the will is absolute. “ Thus a testator began his first bequest. ‘ First, if by casualty or otherwise I should lose my life during this voyage, I give,’ etc. “ The subsequent bequests contained no mention of any conditions. “ It was held that the first bequest only was ‘conditional.’ [Citing Damon v. Damon, 8 Allen (Mass.) 192, and Massie v. Griffin, 2 Met. (Ky.) 364.] In such cases the will is, of course, unaffected as a whole by the failure of specific bequests.” In Rood on Wills, section 65, it is said of these expressions of contingency: “ The courts generally treat the statement as inducement for making the will, if possible; and if clearly a condition, to restrict its operation to the immediate clause or provision, rather than believe that the testator meant it to affect the whole will.” Citing cases. Dr. Schouler, in his Wills and Administration, page 140, says: “ If the condition is of partial application simply, the will should be admitted to probate, and the effect of the condition upon a particular devise or legacy treated as a matter of construction afterwards. But if the condition is one that strikes into the essence of the whole will, affecting its status for probate and a valid operation, the main point to determine is whether so sweeping an effect was really intended.” Chaplin, in his work on Wills, page 898, as to the same subject, says: “ An important distinction is here also to be noticed between a conditional will (where the will does not take effect at all unless the condition is fulfilled) and a will containing a conditional legacy or devise. In this latter case the will itself holds good in any event, and it is only the particular-legacy or devise which fails if the condition is not fulfilled.” In the Damon case, supra, the court says: — 79 — " The introductory clause is complete in itself, in a form quite common, and states distinctly the motive of the testator in making the will. “ 61, J. W. Damon, of * ® ® being in sound mind and body, and being about to go to Cuba, and knowing the dangers of voyages, do hereby make this as my last will and testament, in manner and form following.’ So far, what is said applies to the whole instrument. Then come the particular dispositions: es 6 First. If by casualty or otherwise I should lose my life during this voyage, I give and bequeath to my wife Ann,’ &c. The condition is thus grammatically, and according to the common use of phraseology, attached to and qualifies the particular bequest. He gives a certain piece of property to his wife, if he loses his life during the voyage. There is no gift to her without that qualification. Suppose any other condition had been expressed—6 If I die before I reach a certain age,’ or 6 before a certain house is finished; ’ or 6 if the legatee survives A.;9 could it be doubted that it would make the bequest conditional? The word 6 first ’ preceding the condition and the gift, has a tendency to show that the testator is expressing a particular qualification and not a general purpose. To change the word 6 if ’ into ‘ lest ’ would be to make a change in the meaning on grounds purely conjectural. “ The other reasons urged for the opinon that the whole will was made 6 lest the testator should die during the voyage,’ namely, the appointment of his wife as accountant to settle his affairs in Cuba 6 and all other places where I may have business at the time of my decease,’ he having no business elsewhere than in Cuba and Charlestown when the will was made, and the repetition of the phrase 6 this my last will and testament,’ whatever weight might be given to them if the sole question were whether the whole will must fail if he accomplished the voyage in safety, are deprived of all force if the condition affects but a single clause. — 80 — “ And upon the second question proposed, we are of opinion that the condition does not affect any other than the first clause of the will, and that the will is therefore entitled to probate, having been duly executed.” In Massey v. Griffin, supra, the will contained the words: “ Should I never return,” which the court found to apply to one of several dispositions found in the instrument. It is then said: “ If the testator intended to make the whole instrument contingent and conditional, he could very easily have inserted the condition in the remaining portion, thus: ‘ I also desire, in the event that I do not return.’ That he did not thus insert it is very persuasive, at least, that he did not intend the entire paper to be conditional.” In the case at bar the primary dispositions are absolute in form and there is nothing to show that the testamentary act in its general aspects was inspired by any other than the normal incentives which, surround every testator. It was only as to one incidental disposition that the fear of death in a particular form was considered. The fourth paragraph must be regarded as containing a gift only to take effect in the event described and it cannot be said that such event has occurred. The testator did not die at the same time with his wife, nor did she die without an opportunity to him to make other disposition of his estate. Pie survived her for nearly two years. His statement repeated during that period that he had left all his property to the conditional legatee can not control or aid the reading of his will. It is a misfortune to be deplored that the estate must go to the state, but that disposition must be made in the decree. Decreed accordingly. — 81 — NOTE ON JOINT AND MUTUAL WILLS. Although the earlier decisions seemed to cast some doubt upon the validity of joint or mutual wills it is now well settled that such wills are valid although particular provisions or circumstances may render them invalid. See note to Bower v. Daniel, 12 Prob. Rep. Am. 68. In re. Where two persons owning property in Common execute a will de^ vising the same to the survivor for life with remainder to a third person, it may be probated after the death'of both testators as the will of each. Black v. Richards, 94 Ind. 184. See also Matter of Raupp, 10 Misc. 300. There can be no such thing as a joint will to take effect upon the death of the survivor, as a will must take effect at the death of the testator, and not at a time still in the future. Hershey v. Clark, 35 Ark. 17. A will strictly mutual is in legal effect nothing but the individual will of that one of the testators who may die first. State Bank v. Bliss, 67 Conn. 317. A mutual agreement to execute mutual wills is not shown by the fact that persons make similar wills with cross provisions in favor of the survivor. Edson v. Parsons, 155 N. Y. 555. To establish an agreement for mutual wills and defeat the right to revoke a will, there must be full and satisfactory proof of the agreement, which cannot be supplied by presumptions. Id. A “joint” will is one where the same instrument is made the will of two or more persons and is jointly signed by them, being not necessarily either mutual or reciprocal, while “ mutual ” wills are the separate wills of two persons reciprocal in their provisions. 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. Frazier v. Patterson, 243 Ill. 80; 90 N. E. 216. A joint will which is not reciprocal is simply the individual personal will of each of the persons signing it and is subject to the same rules as apply to several wills. See Cawley’s Estate, 136 Pa. St. 628. Id. — 82 — Where a husband and wife pursuant to a mutual agreement as to the distribution of their property, jointly executed a will by which each left his or her property to the other for life, and at the death of the survivor all the property of both was distributed among their children is not a mutual will. Bower v. Daniel, 198 Mo. 289. Where a husband signs his wife’s will disposing of her estate only it is neither a joint or mutual will. Mosser v. Mosser, 32 Ala. 551. A mutual will, executed by husband and wife, devising reciprocally to each other is valid; it operates as the separate will of whichever dies first. Diez Will, 50 N. Y. 88; S. C. 56 Barb. 591. A mutual will is valid and if unrevoked may be admitted to probate on the death of either of the parties. Ex parte Day, 1 Bradf. 476. Ex parte McCormick, 2 Brad. 169. To make a mutual will, the instrument or instruments must be executed by both parties under an agreement that the survivor will be entitled to the property of the one dying first or the disposition of the property must be in the instruments executed by both the parties. Dreschler v. Van Den Henden, 17 J. & S. 508. Where a wife signs her husband’s will merely for the purpose of consenting to the dispositions made thereby, it is not a joint or mutual will. Chaney v. Home Miss. Soc., 28 Ill. 621. Nor where a husband signs his wife’s will as to her separate property, not as a testator but at her request or to signify his consent. Smith v. Holden, 58 Kan. 535. Where a husband and wife join in the execution of a will joint in form, which only disposes of property of which he is sole owner, it is not a mutual will. Allen v. Allen, 28 Kan. 18. The survivor of persons making joint or - mutual wills with identical provisions is only bound to carry out the scheme of disposition provided therein, where they were made in pursuance of an ageeement between the parties that the survivor should abide by and carry out the provisions of the will. Bastetter v. Hoenninger, 136 N. Y. Supp. 961. In the case of a joint will, as distinguished from mutual separate will, bequeathing or devising the property of each to the other and providing a scheme of disposition upon the death of the survivor, the — 83 — will itself is sufficient, although perhaps not conclusive, proof of an agreement on a sufficient consideration that the survivor would carry out the provisions of the will. Id. Where a husband and wife made mutual wills in each other’s favor, and each signed, and on the death of the husband, it was found that each had signed the will intended for the other, the court had no power to correct the mistake, and the husband died intestate. Nelson v. McDonald, 61 Hun, 406. An instrument signed by husband and wife reading that “ it is our joint wish and will”, is valid as the will of each party. Matter of Raupp, 10 Misc. 300.