Schumaker v. Schmidt

B. F. SAFFOLD, J. Was the writing between Schumaker and Auerback a compact, and not a will, or is it a will containing a compact irrevocable after its execution, or a will simply, and, therefore, revocable by a subsequent one? The intention of the maker is the guide in construing all conveyances of property. This intention must be discovered mainly from the instrument itself, and parol testi — 464 — mony can only be received to explain ambiguities. A writing may admit of construction, either as a deed or as a will. In such a case that interpretation should be given to it which will effect the will of the maker, and best preserve the rights of other contracting parties. So controlling is this rule, that in Golding v. Golding, 21 Ala. 122, an instrument conveying a posthumous interest was regarded a deed, because it could not operate as a will for want of the requisite number of witnesses ; and in Kinnebrew’s Distr’s v. Kinnebrew’s Adm’rs, 35 Ala. 628, a gift of money at the death of the donor was construed to be a will, because5 being a voluntary executory trust, it would not, as a provision of an instrument operative inter vivos, be enforced by a court of equity. In this case, the inducement to the writing is stated to be the long friendship, and mutual esteem of the parties. They say it is their mutual agreement, and declare that it is their last will and testament. The survivor, after the death of the other, is to pay all the expenses of his sickness and burial, and whatever debts may be established against his estate by proof. He is also to take possession of the estate, and hold it for his own sole use and benefit. They subscribe their names, and affix their seals to it as their last will and testament. The witnesses attest that they so declared and published it to them, and requested them to subscribe their names as witnesses to that effect, which they did in their presence, and in the presence of each other. The disposition of the property is posthumous entirely. No present interest is granted, and no' consideration present, or within a reasonable or given time is required. The depositions of the witnesses, though somewhat variant in characterizing it, are not so precise and authoritative as the evidence derivable from the paper itself. No questions were asked them tending to a discrimination between a deed and a will. Viewed as a contract, the most favorable interpretation of it would be, that each party, by a joint instrument, created in his own property a life estate to himself, with remainder to the other if he survived. The embarrassments attaching to property in this condition, and the evi\ — 465 — tendency of secret executory agreements, not to be revealed perhaps, until death had cut off the victim of fraud, make us averse to pronounce this a compact, in the absence of express declaration to that effect, or unavoidable deduction from its terms. In Habergham v. Vincent, 2 Vesey, 230, Mr. Justice Buller said : “ The cases have established that an instrument in any form, whether a deed poll, or indenture, if the obvious purpose is not to take place till after the death of the person making it, shall operate as a will. The cases for that are both at law and in equity; and in one of them there were express words of immediate grant, and a consideration to support it as a grant; but as upon the whole the intention was it should have a future operation after death, it was- considered as a will.” Of all instruments a will is least governed by form. No matter how inartificial the expression, if the testamentary disposition of the maker is disclosed, it will control any contrary title or designation he may have given to it. — Jarman on Wills, (3d Am. ed. marg. p. 12.) The result of what has been said is, that the instrument in question must be treated as a will, unless some consideration other than its testamentary character forbids us to do so. It is executed by two persons jointly, and disposes of the separate property of each in favor of the other. The law respecting joint, or mutual wills, is in much confusion. It is broadly'asserted, by'some authors, that they are unknown to the testamentary law of England. But this assertion is not supported by the cases whence it is derived. In Hobson v. Blackburn, 1 Adams’ Eccl. R. 274, the joint will, the probate of which as the will of the sister, was rejected on the ground evidently of the irrevocability, had before been admitted to probate as the will of the brother. In Dufour v. Pereira, 1 Dick. 419, the wife was held to have bound her assets to make good all the bequests of the mutual will of herself and her husband, because she had proved it as the will of her husband, and had accepted and enjoyed, for a number of years, the bequests in her favor. There was no probate of it as her will; but, on the contrary, a subsequent will made by her — 466 — was proved. The case of Walpole v. Orford, 3 Vesey, 402, is scarcely an authority. The subject is discussed, but no decision is made. The American decisions by no means accord. In Clayton v. Liverman, 2 Dev. and Bat. (N. C.) R. 558, it was held that a testamentary paper, executed by two persons, could not be proved as a joint or mutual will, nor could it be proved as the separate will of either, because it purported to be joint, and also implied an agreement. But on this latter proposition Judge Daniel dissented, insisting that so far as related to the portion of property belonging to each, it was a separate testament, and revocable, there being no evidence of any agreement to the contrary. In Walker v. Walker, 14 Critch. Ohio State Rep. 157, it was held that, “ where a husband and wife, each being the separate owner of property, join in the execution of an instrument in the form of a will, and' treating the separate property of each as a joint fund, bequeathed legacies and devised lands to divers persons, the same can not be admitted to probate as the joint will of both parties, nor as the separate will of either.” The reason upon which this decision mainly rests is that it contravenes the policy of the law in respect to the revo’cable nature of wills. Two out of five judges dissented. In Ex parte Day, 1 Bradford’s Surrogate R. (N. Y.) 476, the proposition was broadly maintained that a joint or mutual will is valid, and may be admitted to probate on the decease of either of the parties as his will. This case was one in which a will executed by husband and wife was propounded for probate. It is represented meagerly in the last clause, as “a testamentary disposition by the dece-. dent’s wife of some property belonging to her in her. own right,” and was proved as the will of the husband. In Lewis v. Scofield, 26 Conn. R. 452, and Evans v. Smith, 28 Ga. R., mutual wills, as distinguished from joint wills, as where two persons join in the execution of one testamentary instrument, declaring that the survivor shall, after the death of the other, have his property, have been upheld, because, though joint in form, it is several in operation and effect, there being but one giver and one taker,'and in — 467 — substance and effect, but the one testament of the first decedent. The best summary of the law, on this interesting and somewhat intangible subject, as derived from the authorities entitled to the greatest consideration, is that two or more persons may execute a joint will, which will operate as if executed separately by each, and will be entitled to, and will require a separate probate upon the decease of each, as his will. But if the will so provides, and the disposition of the property requires it, the probate should be delayed until the death of both, or all, of the testators. The assertion in Eedfield on the Law of Wills, p. 183, § 25, that it is settled in the court of chancery, by a great number of decisions, that mutual wills, duly executed, become irrevocable in equity, after the death of either party, is not sustained to that extent by the authorities there cited. It needs the limitation that, under the contingency stated, they may be in some cases enforced, in equity, as a compact. The will under consideration, though made by two, is not a joint will, because by its terms it can be only the will of him who dies first. The survivor is to take all the property of the other, and no further disposition is made. Though classed under the general denomination of mutual wills, it is not in fact such, because the term implies the will of two persons. It is, therefore, the separate will of the first decedent. Is there any thing of the essence of a compact in it which should interfere with its revocability ? Can he who dies first, or the survivor, be injured if it be deemed revocable. The first decedent, while he lives, can receive nothing from the other, and his death concludes the operation of the instrument as to any reciprocal or hoped for advantage. On the other hand, if he revokes it, and makes other disposition of his property, the survivor is not injured. This would be the case if only a moment intervened between their deaths, or if they died at the same instant. The suggestions in the English cases that notice of the purpose to revoke should be given- to the other parties, — 468 — does not seem to present a sufficient point of support for the power of revocation, which ought rather to be regarded as the essence of a will. The admission in evidence of the deposition of Egloffe has not been discussed by the appellant’s counsel, and is not deemed material in the decision of this cause. • No other issue respecting the validity of the last will of the decedent, Auerback, is made than that herein considered. The decree is affirmed.