Paull v. Earlywine , 195 Okla. 486 ( 1945 )

The rule in American jurisprudence is that where mutual or reciprocal wills are the result of a contract and after the death of one, the successor has accepted benefits under the will of the other, equity will interfere to prevent fraud. Alexander on Wills, vol. 1, pp. 96-105; 69 C.J. 1303; Stephens v. Myers, 91 Or. 114, 177 P. 37; 2 A.L.R. 1155; 73 A.L.R. 1397.

The contract or agreement may be established by circumstantial evidence showing the relation of the parties, their conduct before and after execution of the wills, i.e., that each party in executing a will acted with the knowledge of each other and for the same motive, that the two wills were drawn by the same person, at the same time, and at the joint request of both parties, and that the wills were in fact executed in pursuance of a common purpose and understanding.

Where such a contract or agreement is established and supported by the consideration of an executed contract to devise property (Page on Wills, 2d Ed. § 93), even though a will executed in pursuance of such a contract has been revoked so as not to be admissible to probate, it stands as evidence of a contract enforceable in a court of equity as such. Brown et al. v. Johanson 69 Colo. 400, 194 P. 943.

In a leading English case, where a will was executed by husband and wife, making disposition of their property, and after the death of the husband, the wife had the husband's will probated, received benefits thereunder, and then executed a new will, the court said as to revocation:

"I cannot be of the opinion that either could, during their joint lives, do it secretly; or that after the death of either, it could be done by the survivor . . . it is a contract between the parties which cannot be rescinded but by both." Defor v. Pereira, 1 Dick. 419.

The English and some American cases do not distinguish between the will itself and the right of action on the contract in performance of which mutual wills were made. Nevertheless, such mutual wills incorporating therein provision for the benefit of third persons serve as evidence of oral agreements merged into the written instruments, requiring each of the parties to devise property received under such contract to certain relatives. Though the survivor's' will be regarded as revoked, equity binds the survivor as to disposition of the property received as a result of the contract. Page on Wills (2d Ed.) § 97; Jessup v. Brown, 104 Neb. 770, 178 N.W. 633; Brown et al. v. Johanson, supra.

I would affirm the judgment.