In Re: Reed , 125 W. Va. 555 ( 1943 )

As pointed out in the majority opinion, the effect of the Court's decision herein is to divide the estate of Frank Reed among his four children, rather than to vest the same in one of said children by the probate of his will. Naturally, I would like to be able to concur in that result, but I am unable to do so for the reason that, in my opinion, there has not been such a showing as warrants the holding of the Court that the wills of Frank Reed and Lillian Reed were, in effect, a joint will, and that the death of one of the testators made inoperative the will of the survivor.

In Wilson v. Starbuck, 116 W. Va. 554, 182 S.E. 539, 102 A.L.R. 485, we held that the making of separate wills with reciprocal provisions was insufficient to establish the contractual element necessary to establish them as a joint will, although treating that fact as evidentiary. In that case other evidence and circumstances convinced the Court that the parties intended the wills to have the effect of a joint will, and the will of the survivor was held inoperative, and not allowed to be probated. In the Werkman case 122 W. Va. 583,13 S.E.2d 73, we followed the principle announced in the Starbuck case, but held that the evidence did not establish a contract on the part of the testators to have their wills treated as a joint will, and the will of the survivor was admitted to probate.

I do not believe that the evidence and circumstances in this case warrant the holding of the majority that there was a contract or understanding on the part of the Reeds that their mutual wills were to be treated as a joint will, and that the death of one testator would make inoperative, and not subject to probate, the will of the survivor. True, they agreed to make mutual wills, and they carried out that agreement at the same time, through the services of the same attorney, and before the same witnesses. That, to my mind, was the full extent of the agreement between them, and, in my opinion, the testimony of the attorney who prepared the wills sustains that view. The wills, with other established facts, show an agreement to execute mutual wills. But, say the Starbuck and Werkman cases, that is not enough. Additional evidence or circumstances must be produced or developed before such mutual wills can be treated as a joint will. I think such evidence is wholly lacking.

We only create confusion and uncertainty when we announce principles of law, and then fail to apply them to particular cases.

I would affirm the judgment of the trial court.