Opinion
No. 2871.
August 18, 1959.
Appeal from the District Court, Campbell County, G.A. Layman, J.
Henry A. Burgess and Bruce P. Badley, Sheridan, for appellant.
G.R. McConnell and Walter Scott, Laramie, for appellee.
Before BLUME, C.J., and PARKER and HARNSBERGER, JJ.
It is our view, both upon reasonable authority, that the finding of the trial court that the will was duly executed is beyond disturbance here. While the code provides that certain things are necessary to the making of a valid will, it does not prescribe how these things shall be proved. It leaves that to the general rules of evidence. In re Tyler's Estate, (Cal.) 53 P. 928. The purposes of the statute prescribing the formalities that must be observed in executing a Will, is to prevent simulated and fraudulent writings from being probated and used as genuine. When a person writes his name as a witness to a will at the request of the testator and in his presence, as shown here under the word witness or other equivalent phrase, he impliedly certifies thereby that he saw the testator sign his name to the instrument, or that he saw the name of the testator on it and the testator recognized that it was his signature. It will be competent for him to testify to the contrary because the court and jury desire the truth, but the jury or court, sitting as a court and a jury, should consider his contradictory oral testimony with great caution and scan it with great suspicion; on account of it contradicting his written testimony, it reflects on his (witness's) credibility, and is contrary to the confidence placed in him by the testator. In re Swords' Estate, 284 P.2d 674. The view which is accepted by nearly all the courts is that a revoking clause is not rendered ineffective merely by loss of the instrument which contains it, and that proof of the revocation clause in a later lost will may be made by parol. Moreover, the majority rule is that a probating will may be defeated upon proof of the execution of a later writing by the testator which contained a clause revoking the prior Will, and of the loss of the latter instrument, without proof of the rest of the contents of the lost instrument. Such rule implied in many cases where it is not ascertained directly. There are, however, some cases which support the view that the probate of a will which is not defeated by proof of a revocation clause in a later will which has been lost, at least not without proof of the other contents of the will. In some jurisdictions, statutes provide that no reviving clause nor inconsistent disposition in a lost will shall be allowed to defeat a former will, unless the fact that the lost will contained a revoking clause as established by at least two instruments. 57 A.J. 330, Sec. 473. Generally speaking, the remedy of a person injured by a violation of a contract for the execution of wills containing reciprocal bequests and bequests to third persons effective upon the death of the surviving testator is not to be had in a contest of the probate of the will which constitutes a violation of which complaint is made, since, in the absence of a statute, the only issue on a contested probate is whether the paper propounded is the last will of the decedent. 169 A.L.R. 53.
POINTS OF COUNSEL FOR APPELLEE.The proponent must satisfy the court that the instrument propounded is the Last Will and Testament of the alleged testator, that the will is valid, and in full force and effect. 95 C.J.S. Sec. 383 Wills. In short, the phrase in the presence of, is not synonymous with being in the same room. A person in whose presence an act is done must be informed of what is taking place so that he actually knows what is being done; or the act is not done in his presence no matter how close to him it may be done. A will is not signed in the presence of one who is attending to another matter and does not know what is taking place until he is told later. In re Lynch's Estate, Cal. 1945, 161 P. 24. Under statutes similar to the English Wills Act, it has been held, generally, though not universally, that where the witnesses do not see the testator sign the instrument, they must see his signature or have the opportunity of seeing it, or such signature must be visible to them in order to satisfy the requirements of the statute as to a valid execution. 127 A.L.R. 389. An intent to make a will is effective only where it applies to that particular instrument, and that it is not established as a man's will by proving he intended to make a disposition identical with that contained in the paper. 57 A.J. 47. It is commonly held that the testator must either sign in the presence of witnesses or acknowledge his signature. 94 C.J.S. Wills, Sec. 188, p. 1015. Before evidence of other than the subscribing witnesses may be introduced to prove the due execution of the will, it must appear that all the subscribing witnesses have appeared and testified, or if subscribing witnesses not present their absence must be accounted for. Generally proof of a will by other than the testimony of the subscribing witness is not permissible where such witness is known, is a resident of the state, and his evidence can be obtained. And under some jurisdictions the failure of a party to call such witnesses even though not required may be looked on as a suspicious circumstance. 57 A.J. Sec. 877, p. 582. The rule of the ecclesiastical courts was that the question whether an earlier will is revived by the revocation of a later will which itself revokes the earlier will is purely a question of intention, and that there is no presumption adverse to or in favor of revival. Such rule has been adopted by some of the courts in this country. The common-law courts of England, on the other hand, held as a necessary conclusion of law, admitting of no proof to the contrary, that the mere destruction with intent to revoke, of a will containing a revocatory clause revived a former will which had been preserved uncanceled. Some American courts have followed such rule. 57 A.J. 425. In jurisdictions having no express statute on the subject of revival or republication, and where the courts reach their decisions on the basis of the rule of the common law, or rely on implications arising from statutes providing merely that a prior will may be revoked by a subsequent will, the authorities are in conflict as to whether revocation of the subsequent will works a revival of a prior will still in physical existence, although they unite in holding that where a prior will is not physically existent at the time of revocation of the subsequent will there can be no revival. 95 C.J.S. 91, Wills, Sec. 301.
Appeal from the District Court, Campbell County, G.A. Layman, J.
Henry A. Burgess, Sheridan, for appellant.
Walter Scott and G.R. McConnell, Laramie, for appellee.
Before BLUME, C.J., and PARKER and HARNSBERGER, JJ.
OPINION.
Following the death of Charles L. Stringer, deceased, his widow, Bertie M. Stringer, petitioned the court on December 4, 1957, for the appointment of an administrator of his estate alleging that he had died intestate. The following day, one Wilhemine M.L. Miller filed a petition containing two causes of action. In the first cause, an instrument dated December 8, 1952, was offered for probate and in the second cause, an instrument dated August 26, 1949, was offered, the petition praying that one or the other of these instruments be admitted to probate as the last will and testament of the deceased. Thereafter, on January 2, 1958, Bertie M. Stringer filed her petition for the probate of an instrument dated March 22, 1954.
During the hearing that followed, the parties stipulated the 1952 instrument had been properly executed as a last will and testament of the deceased. As it was not available, a copy was received in evidence.
At the conclusion of the hearing which was held, and following submission of briefs by counsel, the court found that the petition of Wilhemine M.L. Miller, asking alternatively for the probate of either the 1949 instrument or the 1952 instrument, was contested by Bertie M. Stringer and that the petition of Bertie M. Stringer was contested by Wilhemine M.L. Miller. Inasmuch as Bertie M. Stringer had originally filed her petition that letters of administration be granted on the theory that the deceased had died intestate and later had filed another petition for the probate of the alleged will of 1954 of the deceased, we must assume from the court's findings that this meant Wilhemine M.L. Miller contested both of those petitions. The court also found generally in favor of petitioner Wilhemine M.L. Miller and against petitioner Bertie M. Stringer; that the 1954 instrument was a carbon copy; that the unsigned original of such instrument had not been signed by the deceased; that the subscribing witnesses did not see the deceased execute the carbon copy offered for probate; that the signature of the deceased appearing on the carbon copy was not proved; that there was no proof deceased had signed the 1954 carbon copy, either within or without the presence or hearing of the subscribing witnesses or at all; that the signatures on the 1949 and the 1954 instruments were not identical; that the proponent of the 1954 instrument had failed to meet the burden of proof that the document was the last will of the testator or was valid and in full force and effect; and that the court should deny the probate of the 1954 instrument.
As to the 1949 instrument, the court found the deceased and his pre-deceased first wife, Emily K. Stringer, had executed identical wills except for the substitution of names where the context so required, and one of those wills was the 1949 instrument for which probate was sought; that there was a pre-will conference and contract to make such joint and mutual wills between the parties; that there had been established a contract to make the testamentary disposition in those 1949 wills; that the contract was supported by sufficient consideration in that the deceased Charles L. Stringer, the husband, promised to devise and bequeath property in which he and his wife had an equal interest, in a particular way, in consideration of a similar promise on the part of Emily K. Stringer, the wife, and that in reliance thereon each executed his and her separate will dated the 26th day of August, 1949; that Emily K. Stringer, the wife, died in December 1952, and her will executed in pursuance of the contract was thereafter probated by the deceased Charles L. Stringer, who accepted the benefits provided him under his wife's 1949 will.
The court then found there was a valid and existing contract between the deceased Charles L. Stringer and his first wife, Emily K. Stringer, deceased, to execute the joint and mutual wills of August 26, 1949.
The court further found there was insufficient evidence to establish the existence or validity of the December 8, 1952, will; that the August 26, 1949, will of the deceased, Charles L. Stringer, was duly and validly executed and in full force and effect on the date of his death, and that the subsequent marriage of the deceased to Bertie M. Stringer did not revoke the 1949 will nor was it revoked by any will or wills subsequently made; that the 1949 will of the deceased should be admitted to probate and the costs should be assessed against Bertie M. Stringer.
Upon these findings the court adjudged and decreed that the petition for probate of the 1954 instrument be denied and that the petition for issuance to Bertie M. Stringer of letters of administration with the will annexed be denied; that the petition of Wilhemine M.L. Miller for letters of administration with the will annexed and for probate of the 1949 instrument be granted and that the 1949 instrument be admitted to probate as the last will and testament of the deceased; that the petition of Wilhemine M.L. Miller so far as it pertains to the 1952 instrument be denied and that the 1952 instrument be denied admission to probate; that there was a valid and existing contract between Charles L. Stringer, deceased, and Emily K. Stringer, deceased, for the execution of joint and mutual wills; that the deceased Emily K. Stringer had performed her part of that contract and that the deceased Charles L. Stringer had accepted the benefits of that contract by and through the probate of the estate of the deceased Emily K. Stringer; that the 1949 will of the deceased Charles L. Stringer which was being admitted to probate was the performance of the contract on the part of Charles L. Stringer, deceased, and the costs of the contest were assessed to Bertie M. Stringer.
From these findings and order and judgment of the court, Bertie M. Stringer appeals.
It may not be amiss to comment that, in strict propriety, the 1949 wills should not be referred to as joint wills, inasmuch as they were not contained in a single instrument. As is pointed out in 97 C.J.S. Wills § 1364, e, pp. 286-287, "the terms `joint wills' and `mutual wills' are sometimes inaptly used interchangeably." There seems, however, to be no question but that the two wills executed in 1949 were mutual wills and were reciprocal in their provisions.
Appellant insists there was error in considering for probate at the same hearing all the instruments offered. Appellant contends that the court erred in receiving evidence regarding the 1949 and 1952 instruments at the same hearing had on the 1954 instrument. This, appellant says, is because the 1949 and 1952 instruments contained petitioner's affirmative allegations that there was an oral agreement to make the 1949 will and that the hearing upon the 1949 and 1952 instruments had been set immediately following that upon the 1954 instrument. Appellant also asserts that the court had expressly said the hearing was to be upon the 1954 instrument and indicates this meant the hearing would be only regarding that instrument, and that it was after both sides had rested that the court changed its mind and decided the hearing was upon all probate files relative to the estate of the deceased Charles L. Stringer.
Our examination of the record shows that all the court said at the commencement of the hearing was in answer to appellant's counsel's inquiry. "Do you want me to make an opening statement at this time?" To this the court replied, "Call your witnesses merely for the purpose of proving the due execution of the will." This statement falls short of expressly saying the hearing would be solely upon proof of the 1954 instrument. It merely advised counsel to proceed with the proof of his case.
Appellant says this change afforded appellant no opportunity to object to evidence relating to the purported 1949 oral agreement to make a will and afforded appellant no opportunity to call witnesses, and, therefore, it constituted a denial of due process of law and gave appellant no opportunity to be heard. And appellant further contends it was error for the court to consider the issue of the oral agreement, at the time of hearing proof for the admission to probate of the 1954 instrument. Again we must disagree with appellant. An examination of the record shows that after the appellee-contestant had rested, the court stated that it desired to have briefs, and appellant's counsel then inquired if the three cases, which we understand referred to the probate of the 1949, 1952 and 1954 instruments, were consolidated for the hearing. To this the court replied in the affirmative. Appellant's counsel then attempted to obtain a stipulation from opposing counsel respecting the 1952 instrument, and when he did not succeed, requested the appellee to elect between the causes of action for probate of the 1949 or 1952 instruments. This resulted in appellant's counsel agreeing that by her pleading, appellant had admitted the validity of the execution of both the 1949 and the 1952 instruments. Thereupon, appellant's counsel requested the right to continue to call witnesses about the 1952 instrument, and then appellant's counsel, without any objection from either opposing counsel or the court, proceeded to and did call Bertie M. Stringer for further examination.
Under these circumstances, it is clear the appellant was not prejudiced by the consolidation of the hearing upon the several petitions for letters of administration or probating of instruments.
We find nothing in Rule 42(a) of our Rules of Civil Procedure, which is referred to by appellant, to support her position that consolidation must be made before hearing. Of course, such a consolidation should not be had if it results in prejudice to any party litigant. We do not, however, find any such prejudice resulted in this instance.
In order to pass upon the correctness of the court's decision admitting the 1949 document as the last will and testament of the deceased, we must not only examine the evidence relating to the validity of the execution of the 1949 instrument, but we must ascertain whether the instrument subsisted as the last will and testament of the deceased at the date of his death. With respect to the first question, there seems to have been no dispute that the 1949 instrument was signed by the testator in the presence of the required number of witnesses and in that respect it was sufficiently authenticated. As to its subsisting as the last will and testament of the deceased as of the date of his death, the record seems clear that it did not. In the first place, the parties stipulated that the 1952 will of the deceased was validly executed and hence, as of the date of its execution, that instrument was the last will and testament of the deceased, and it contained a clause expressly saying:
"I, Charles Limuel Stringer, also known as Charles L. Stringer and C.L. Stringer, of Gillette, Wyoming, hereby make my last will, revoking all previous wills and codicils."
This express revocation in the 1952 will sufficiently fulfills our statutory requirement regarding revocation of wills as set forth in § 6-306, W.C.S. 1945, as follows:
"No will or any part thereof shall be revoked unless by burning, tearing, cancelling or obliterating the same with the intention of revoking it, by the testator or by some person in his presence and by his direction, or by some other will or codicil in writing, signed, attested and subscribed in the manner provided by law for the execution of a will, excepting only that nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator. The power to make a will implies the power to revoke the same." (Emphasis supplied.)
The 1949 will of the deceased Charles L. Stringer, being thus expressly revoked by the later 1952 will, may not correctly be said to be the last will and testament of the deceased. Hence, the lower court was in error in admitting the 1949 will to probate as the last will and testament of the deceased. The court was not privileged to ignore the stipulation of the parties which established the 1952 instrument as the valid last will and testament of the testator as of the date of its execution.
However, notwithstanding the testator's 1949 will did not subsist as his last will at the date of his death, it still retained its character as evidence bearing upon the existence of a contract between the first wife, Emily K. Stringer, and the deceased.
There is no dispute between the parties that the wills of Emily K. Stringer and Charles L. Stringer executed in 1949 were identical except where the context required the substitution of different names. Each will, in the first instance, left all the property of the person making that will to the spouse, and then provided that in the event the spouse did not survive the maker, that one-half of the property should go to the relatives of the deceased spouse. True, there is nothing said in either of these identical wills as to there being any contract or agreement between the parties for the making of the same. However, the court received testimony to the effect there was such an agreement and understanding, and in that connection the record shows the following in the testimony of Wilhemine M.L. Miller regarding statements of the deceased prior to making the 1949 will:
"Q. What did they discuss, Charles and Emily? A. Oh, making a Will, and they wanted to make a Will so that when they both passed on it would — what they had would be divided equally between their brothers and sisters, half and half on each side.
"Q. And did you hear both of them agree to that? A. Oh, yes, that was what they wanted in their Will.
"Q. And then what happened there, Mrs. Miller? A. Well, they took my dad out to the country with them, because he spent part of his time with us and part of his time with them during the summers, and the next time they came in they stopped at our house and said, `Well, we made our Wills.'
"Q. And how long after that was that? Do you recall? A. Well, it wasn't very long after that * * * I couldn't say exactly * * * but it was during that summer before they made their Wills.
"Q. Did they say anything further about what kind of Wills? A. Yes, they said they made that kind of Will as you have just explained, that they would give it to each other and, when both were dead, half went to the Kurllrusses [The Kurllrusses were the relatives of Emily K. Stringer] and half to the Stringers."
The fact that this testimony referred to statements made by the deceased prior to the execution of the 1949 will does not legislate against its relevancy.
As is said in Van Houten v. Whitaker, Cal.App., 337 P.2d 900, 903:
"* * * a subsequently executed will may relate back to the making of any oral agreement which it embodies so as to validate the latter under the statute of frauds * * *."
Later on, the same witness testified that when Charles L. Stringer was considering marrying Bertie M. Stringer he said to the witness:
"`Mimm [Wilhemine], no matter what happens, what I do, everything will be the same between the Kurllrusses and me, and it will be just like Emily and I planned it.'" (Emphasis supplied.)
Ada Boyet, another witness, testified that deceased Charles L. Stringer told her in 1953 or 1954:
"Em's half was to go to the Kurlrusses and his half to the Stringers."
In recross-examination, Glenn Stringer testified:
"Well, they [The Stringers] said that they wanted it to be divided between the two families. * * * When they was both gone."
The record shows this statement was made in 1950.
In addition, there is no dispute but that Charles L. Stringer did receive the benefits and properties belonging to his first wife following her decease by virtue of and in accordance with the provisions of her 1949 will which was identical with the 1949 will of the deceased in dispute here.
In Van Houten v. Whitaker, Cal.App., 337 P.2d 900, 903, supra, which action although not a parallel to the instant case, inasmuch as it was one in which it was sought to impose a trust upon a devisee who had received distribution of property under a joint will with her husband, nonetheless bears directly upon the question of the survivor's right to escape the obligation to carry out the contractual provision of such a joint will by revoking it. The court there approved what was said in Brown v. Superior Court, 34 Cal.2d 559, 564, 212 P.2d 878, 881:
"`Where two parties agreed to make mutual wills, each promising to dispose of his property to the other or, if the other be dead, to certain third persons, and one of the parties performs by leaving his property to the other, the intended devisees and legatees are entitled to enforce their rights as beneficiaries under the agreement. The contracting party who survives becomes estopped from making any other or different disposition of the property, and his obligations under the agreement becomes absolutely irrevocable and enforceable against him, at least where he avails himself of the provisions of decedent's will in his favor and accepts substantial benefits thereunder.'"
See also 97 C.J.S. Wills § 1366c, p. 298, and cited authorities. And to the same effect is 57 Am.Jur., Wills, § 174, p. 154.
In Schomp v. Brown, Or., 335 P.2d 847, 850, it is clearly stated:
"* * * Such a reciprocal or mutual will, even though revoked, still stands as evidence of the contract. * * *"
As far as we have discovered, this court has not as yet considered the effect of mutual and reciprocal wills between married couples where the survivor has revoked after the death of the spouse and received benefits under the will of the deceased, but in Canada v. Ihmsen, 33 Wyo. 439, 456, 457, 240 P. 927, 932, 43 A.L.R. 1010, 1019, where such wills had been executed by unrelated persons, the court refused to accept the contention that such mutual and reciprocal wills created a contractual obligation because there was a lack of consideration. However, the court said:
"It may, however, be that certain arrangements of property, like that made among members of a family, should be put upon a somewhat different footing from those made between strangers in blood. In Lewis v. Lewis, 104 Kan. 269, 178 P. 421, the court says that such arrangements between husband and wife should be favored. That view is not dissimilar to the view adopted by the civil law. Alexander on Wills, § 70. Generally speaking, persons who made such contracts were, under the Roman law, considered as legacy hunters. Gaius, a noted jurist of the second century of our era, applied that term to persons who were given an undivided portion of an inheritance as well as to those who received a legacy, and held such gifts to be void. Digest, Justinian, 30, 64. Paul, another noted jurist, states that, when a man appoints another as his heir upon condition that such other should in turn appoint a third person as heir, such appointment is void. Digest, Justinian, 28, 5, 72. On the other hand, the famous Papinian wrote that the rule against the validity of reciprocal appointments does not apply where they are induced by mutual affection. Digest, Justinian, 28, 5, 71. * * *"
While the testimony quoted above, evidencing the nature of the agreement between the first wife and Charles L. Stringer, is not voluminous, it is not contradicted and when considered in the light of the identical nature of the provisions of the wills of both parties concerned, it cannot be said to be unsubstantial evidence.
The lower court in the instant case quite possibly considered that in examining a testamentary document, it was entitled to do so with a view to discovering the dominant testamentary scheme, and if so, we are in agreement. In any event, it was the finding of the court that there was sufficient evidence to establish there was a contract between the deceased and his first wife, Emily, to make the testamentary dispositions which were contained in the 1949 wills. We are not disposed to disagree with that finding, although as previously indicated, we disagree with the lower court in finding that the 1949 document was the last will and testament of the deceased at the date of his death.
The appellee suggests that if we assume the will of 1952 had been revoked, the 1949 will of the deceased was revived, and quotes at length from diverse authorities — the sum total of which merely illustrates that there is a wide difference of opinion in different jurisdictions as to the reviving effect of the revocation of a subsequent will which is relied upon as having revoked a former will.
In the Annotation in 28 A.L.R. 911, it is said:
"There are five possible theories as to the effect, as a revival of a former will, of the destruction of a later will revoking the earlier, viz: (1) That the earlier will is revived as a matter of law; (2) that the earlier will is revived unless an intention to the contrary appears; (3) that the earlier will is not revived; (4) that the earlier will is not revived unless an intention to revive it appears; and (5) that the question is one of intention without any presumption for or against revival."
In the Annotation's summary, it is pointed out that the view that the earlier will is revived ipso facto, is supported by the rule at common law, citing a few English cases, the earliest of which was in 1754, as well as some American cases which followed that rule. It is stated the general theory of cases accepting this view is that as a will is ambulatory until death, a will which is itself revoked can have no effect as a revoking instrument.
The doctrine that the earlier will is revived unless an intention to the contrary appears, proceeds on the theory that the destruction or revocation of a will which revoked or superseded a previous one, leaves the first as if the second had not existed, unless it be clearly proved that the second was destroyed with the intention of dying intestate. This, in theory, is similar to the view just discussed — in other words, because neither is a complete will until the death of the testator.
The view that the destruction or revocation of a subsequent will does not revive a prior will, but that such prior will can only be revived by a republication, is clearly illustrated in Lively v. Harwell, 1850, 29 Ga. 509, 515, 516, quoted with approval on a subsequent appeal in Harwell v. Lively, 30 Ga. 315, 320, 321, 76 Am.Dec. 649, 651, where the court said:
"Here are two wills of different dates and inconsistent provisions, and the last one, in point of date, is confessedly revoked. Which of these papers, or does either, show the final testamentary mind of the testator? I say neither does. The last one does not, as is admitted by everybody, for it is expressly revoked. How is it with the first? That contains what was once his mind, but we know that he changed that mind when he made the last one. How do we know that he ever reverted to it? It is said that he changed again when he revoked the last. This is true, but to what did he change? The case is this: he had a scheme and abandoned it for another, and then abandoned the second. All so far is clear and satisfactory, but can you go further and say that, when he abandoned the last, he returned to the first? If these two schemes comprehended ALL the possible dispositions of his property, then the conclusion would be a logical one, that when he abandoned the one he returned to the other. But when the number of possible schemes in every case is legion, you can not say that because he has departed from any one, you know his mind has settled upon any other particular one out of that infinite number. The whole fallacy lies in assuming that the two papers exhaust the subject. It seems to me that the abandonment of any one scheme does not of itself afford the least indication in favor of any other particular one out of an infinite number. * * *" (Emphasis is that of the Georgia court.)
It may be that in the instant case the failure of the testator to destroy the 1949 will should be considered as bearing upon the testator's intention to revive it, if, in fact, he had destroyed the 1952 will. However, the only thing approaching evidence of any such destruction of the 1952 will is found in the testimony of Bertie M. Stringer. This was to the effect that she saw the deceased tear up some instrument. But, the destroyed instrument was not shown to be the 1952 will, so this testimony can hardly be regarded as sufficient to raise a presumption that the 1952 will was in fact destroyed by the testator with the purpose of reestablishing or reviving his 1949 will.
Courts which have accepted the theory that an earlier will is not revived unless an intention to revive appears seem content to merely say the better opinion seems to be that in the absence of statute, the subsequent destruction of the revoking will does not have the effect of reviving the former will unless there is evidence that it was the intention of the testator to revive the former will. Where there is an express revoking clause, it is said that this is especially true.
The position taken by certain English courts and the courts of at least three of our states, that the question of revival is one of pure intention without there being any presumption either for or against revival arising by virtue of the destruction of the revocatory will, is of little help to us here as no such intention appears from the record.
We have no statute providing that a will revoked by a subsequent will is revived by the destruction of the subsequent will when the former will has not been destroyed. We do have § 6-306, W.C.S. 1945, previously mentioned, expressly providing the different ways by which a will may be revoked. The legislative silence relative to the question of revival does not incline us to believe a presumption is created that a will revoked in one or the other of the ways authorized by express statute, is brought back into life. If any presumption at all is indicated, it seems more reasonable to us that it should be that the presence in our laws of an express statute prescribing ways in which a will may be revoked, without there being a further statute providing for revival of such a revoked will, manifests that the legislature has intentionally spoken its last word concerning the existence of such a revoked testament.
We, therefore, conclude that the 1949 will of the deceased Charles L. Stringer was revoked by the 1952 will which contained an express revocation of all former wills, and that the 1949 will has not been revived. Nevertheless, as previously stated, the 1949 will still remains as evidence of a contractual obligation assumed by the deceased Charles L. Stringer, and it was beyond his power to escape that commitment by exercising his undoubted right to revoke the 1949 will as his last will and testament. As to whether or not there was a revocation of the 1949 will, independent of the 1952 revocation, occurring by virtue of the 1954 instrument, will receive our attention in our discussion of the validity and subsistence of the 1954 document as the last will and testament of the deceased at the time of his death.
The contention of the appellee that the instrument was not the last will and testament of the deceased because the 1954 instrument offered was imprinted by the use of carbon paper is entirely without merit. There is no special virtue in typing made by imprint through a ribbon rather than through a piece of carbon paper. The typing was all done at the same time and in a single operation. The important thing is to discover whether the typewritten instrument offered was adopted by the testator as his last will and testament by the affixing to it of his signature and his having two witnesses to that signature affix their own signatures thereon.
No one questions the signatures of the witnesses, but appellant claimed that the other signature purporting to be that of the deceased on the instrument was not his signature, and the trial court found it was not identical with the signature on the 1949 will, and that appellant had failed in her burden to prove it was the signature of the deceased. When we closely examine the transcript of the evidence, we find that a reputable banker of the community testified without equivocation that he knew the signature of the deceased and he positively identified the signature upon the offered instrument as being that of the testator. Similarly, the lawyer, who had represented the deceased during his lifetime, testified positively that he too knew the signature of the deceased and that the signature appearing on the instrument was that of the deceased. No attack of any kind was made upon the credibility of either of these witnesses, nor was any showing made of their lack of qualification. No witness appeared and testified in contradiction to the positive statements of these two disinterested witnesses. We do not overlook that the brother of the deceased, who was an interested witness, inasmuch as he stood to receive distribution of a portion of the estate of the deceased under the terms of the 1949 will, testified concerning the signature appearing upon the 1954 instrument. His testimony, however, was not positive, but when asked if the questioned signature was that of the deceased testator replied, "Well, I don't think it's his." On cross-examination, this witness' attempt to justify his doubt about the signature was anything but convincing. In fact, his effort to explain his doubt by giving as his reason the difference in the form of certain letters from the form in which he said the deceased usually wrote them, was in itself contradictory. At no time did he state directly and positively that it was not the signature of his deceased brother. Under these circumstances we cannot say the evidence of this brother was sufficiently substantial to present that conflict in evidence which requires us to accept the court's finding that the signature of the deceased on the 1954 instrument had not been sufficiently established.
The circumstances surrounding the execution of the 1954 instrument all fortify this conclusion. The uncontradicted testimony is that the deceased and his widow went to the office of their attorney for the express purpose of making their wills; that they informed the lawyer of their wishes and he prepared wills which he thought carried out the instructions given him; that thereafter the deceased and his widow returned to the office of that attorney and the deceased called attention to certain changes which he desired to have made; that thereafter the attorney made the desired changes, but when the deceased and his widow returned a second time to execute their wills, the lawyer was not there, and the secretary in that office gave the deceased and his widow the reformed and completed instruments.
The further uncontradicted evidence shows that thereupon the deceased and his widow drove some 40 miles to the ranch home of the friends, who signed the questioned document as witnesses; that upon arrival the deceased stated to those friends that he and his wife were there to execute their wills and to get their friends to assist them by witnessing their wills; that then they all sat around a common table with the instruments the deceased and his wife had brought from the lawyer's office on that table before them and they proceeded to affix their signatures; that in doing this the ribbon-typed copy of the document — the carbon-typed copy of which was presented for probate — was left unsigned by the deceased. But the carbon-typed instrument was executed by deceased and witnessed by their two friends. The offered instrument, thus executed and witnessed, was not a copy. It was an original. Hence, this is not a case where there was executed an original will, as well as a copy of that original, and the authorities offered to the effect that in such a case all executed copies must be produced or accounted for are inapplicable. It is inconceivable that a person who had gone to his attorney, directed the manner in which his will was to be prepared, corrected the first draft, secured the final draft, drove 40 miles in order to get his friends to witness the instrument he had had prepared by his lawyer, and informed his friends the purpose for his visit there, should have changed his mind and not executed the document to be his last will and testament, without some person then present knowing about the change of purpose and so testifying to that effect at the hearing. The whole affair corroborates the verity of the signature upon the offered instrument.
In considering the trial court's findings and its judgment refusing to admit the 1954 instrument to probate as the last will and testament of the deceased, it is, of course, important that we keep in mind the firmly entrenched rule of this court, that in the face of a finding of fact by the lower court, we will not substitute our judgment for that of the trial court when there is conflict in substantial evidence regarding that fact. And we are mindful that in the face of conflicting evidence that we must regard only the evidence most favorable to the successful party, together with all fair inferences which may reasonably be given it.
However, where there is no substantial evidence that gives rise to a conflict, we have the right and in fact the duty to examine the record and reach our own independent conclusion from the substantial evidence therein contained.
In 5 C.J.S. Appeal Error § 1564(6), p. 1288, it is said:
"Where there is no substantial conflict in the evidence it has been held that the presumption in favor of the trial court's conclusion does not apply, * * *."
And in 3 Am.Jur., Appeal and Error, § 954, p. 518, it is said:
"* * * However, the presumption in favor of judicially found facts does not exist where such findings are the result of misconception of law, or when there is no conflict in the evidence, * * *."
We cannot say that there is a wealth of authority in the form of decisions respecting this seeming exception to the general rule regarding findings of fact made by a trial court, but this does not detract from the soundness of the exception. Perhaps one of the clearest statements made by a court in applying the exception to the general rule is to be found in Stevenson v. Sherman, Tex. Civ.App., 231 S.W.2d 506, 512, where it was said:
"* * * The items derive from testimony which we regard as undisputed; hence whether or not they constitute a necessary expense will be without reference to the trial court's conclusions, since the presumption in favor of a finding of fact on disputed testimony does not attach to a conclusion drawn from undisputed evidence. Funk v. Walker, Tex.Civ.App., 241 S.W. 720; Gulf, C. S.F. Ry. Co. v. Gaddis, Tex. Com.App., 208 S.W. 895. * * *"
An earlier case from Alabama, Barnes v. Clark, 227 Ala. 651, 151 So. 586, 588, 90 A.L.R. 637, 641, states the matter as follows:
"In reaching this conclusion we have not lost sight of the rule obtaining here that a presumption should be indulged in favor of the correctness of the conclusion of the trial judge, who sees and hears the witnesses, when there is conflict in the evidence, but in this case there is no conflict, and therefore nothing upon which to base this general presumption. Wright v. Price, 226 Ala. 591, 147 So. 886."
The Alabama courts have been consistent in following the rule in the Barnes case, supra. See Haden v. Boykin, 259 Ala. 504, 66 So.2d 708; Liberty Nat. Life Ins. Co. v. Trammell, 33 Ala. App. 275, 33 So.2d 479, certiorari denied 250 Ala. 159, 33 So.2d 483; Id., 35 Ala. App. 300, 51 So.2d 167, reversed 255 Ala. 1, 51 So.2d 174, certiorari denied 255 Ala. 236, 51 So.2d 176; Department of Industrial Relations v. Savage, 38 Ala. App. 277, 82 So.2d 435.
But we need not go so far afield, because this court in Washakie Livestock Loan Co. v. Meigh, 47 Wyo. 161, 33 P.2d 922; 50 Wyo. 480, 491, 492, 62 P.2d 523, 526, 107 A.L.R. 1063, in reversing the finding and judgment of the trial court, considered the evidence which was available to that court in making its decision, and in doing so said:
"It is urged that this evidence establishes a contract of bailment of the sheep in question entered into during the spring of 1931, between Meigh on the one hand and the lien claimants on the other. We are utterly unable to see that this is so. We think the only fair inference that can reasonably be drawn from this record is that these men who were working with the sheep were at all times merely employees of Meigh and the Meigh Livestock Company, and that the sheep were always after the spring of 1931, as they had been before that time, under the control and in the possession of Bob Meigh. In saying this we do not overlook the general finding of the trial court in favor of the lien claimants. We are constrained to say that, in view of the statements made by Meigh in the mortgage he signed and his sworn property statement quoted from above, no weight can be attached to his testimony that there was an oral contract of bailment entered into between him and the men who looked after the sheep. The testimony of Gomez, the only one of those who were the other alleged contracting parties to appear on the witness stand, falls far short of establishing such a contract. He unequivocally said that he was an employee of Bob Meigh, and his statement is borne out when the record is viewed in its entirety. In our judgment, the general finding of the district court is not supported by the evidence in the case if such finding should be construed as determining that there was such a contract."
The parallel between the position taken by Judge Riner in the Washakie Livestock Loan Company case, supra, and the instant case seems clear to us. In the former case, the court had before it the testimony of both Meigh and Gomez in conflict with other testimony given to the contrary. Yet, when from an examination of the entire record, it became obvious to the reviewing court that the positive testimony of those witnesses was of doubtful character because of other evidence in the record, such testimony was said to be without weight. This simply meant that because of its doubtful quality, the court did not consider it presented a conflict in the evidence which justified accepting the lower court's finding. This court, therefore, refused to follow the general rule and uphold the lower court's decision, although on its face there appeared to be a conflict in evidence. This resulted because the court considered the evidence purporting to raise such a conflict as unsubstantial.
Another earlier Wyoming case, Carter Oil Co. v. Pacific Wyoming Oil Co., 37 Wyo. 448, 467, 263 P. 960, 966; 38 Wyo. 361, 267 P. 85, at least touched upon the question where it is said:
"* * * That testimony is all to the effect that the lands of homesteaders in this case are all on the same geologic structure with other lands, on part of which producing oil wells are located. If that is true, and we must accept it as true for the purposes of this decision, the defendant never had an opportunity to get more than one lease thereon. * * *" (Emphasis supplied.)
The point in the Carter case was that if the only testimony in the record was to the same effect, this court must accept it as true. So in the case now before us, if as we do, we disregard as unsubstantial the testimony given by the brother of the deceased when he said he did not think it was his brother's signature, the only other testimony is that of the banker and the lawyer, and it must be accepted as true by us. We must conclude, therefore, that the court erred in ignoring the only substantial evidence given which bore on the authenticity of the deceased's signature, and we find that the disputed signature on the 1954 instrument was proved to be the signature of the deceased. No one questions the authenticity of the signatures of those who signed as witnesses and those witnesses themselves appeared and testified to their own signatures. The fact that they were unable to recall the details concerning the signing of the offered document is of no probative value respecting the verity of the deceased's signature. The following reasoning and logic of a relatively old California case, In re Tyler's Estate, 5 Cal. Unrep.Cas. 851, 50 P. 927; 121 Cal. 405, 53 P. 928, 929, 930, is applicable here and is quite persuasive and warrants its quotation here:
"* * * While the Code provides that certain things are necessary to the making of a valid will, it does not prescribe how those things shall be proved. It leaves that to the general rules of evidence. There is provision, it is true, that if the attesting witnesses are alive, and present in the county, they must, in the event of a contest, be called. This is a very natural and just provision, for in such case the failure of the proponent of a will to call his attesting witnesses would be a very suspicious circumstance. But there is no statutory declaration, and no principle of law, to the effect that a will executed in due form shall go for naught unless an attesting witness, after the lapse of many years, shall continue to recollect everything material that occurred at the time he subscribed his name to it. Such a rule would make the validity of the will dependent, not upon the disposing mind of the testator, nor his freedom from duress, undue influence, or fraud, nor upon his clear expression of his intention in the body of the instrument, nor upon its execution in conformity to the form and ceremony prescribed by the statute, but upon the fullness, accuracy, and persistency of the recollection of one of the persons who signed it as a witness. Such a rule cannot be maintained either upon principle or precedent. What constitutes a sufficient execution of a will is prescribed by statute. What constitutes sufficient proof of such execution is not so prescribed, and is a different question, — a question to be solved by the general principles of evidence. * * * Where an attesting witness has no recollection as to certain matters connected with the making of the will, the case is, upon principle, in the same condition as where he is dead, insane, or absent; * * *.
"Authorities supporting the above conclusion are numerous. We will refer to some of them: In 1 Greenl. Ev. par. 38a, we find the following: `Execution of Instruments — Regularity of Acts. Of a similar character is the presumption in favor of the due execution of solemn instruments. Thus, if the subscribing witnesses to a will are dead, or if, being present, they are forgetful of all the facts, or of any fact material to its due execution, the law will in such cases supply the defect of proof by presuming that the requisites of the statute were duly observed.' Authorities are cited sustaining the text. In Beach on the Law of Wills the author, in paragraph 39, says: `On the death of the witnesses, or on the failure of their memory, the proof of the fact of execution begets the presumption that all the details of the statutory requirements were complied with, whether so stated in the attestation clause or not, unless the contrary be proven.' In 1 Jones, Ev. § 44, it is said as follows: `If a will purports to have been duly signed, attested, and witnessed, on proof of execution the court will presume, in the case of the death of the witnesses, or in case they do not remember the facts connected with its execution, that the law was complied with; and the details of the statutory requirements will be presumed, whether it is so stated in the attestation clause or not, unless the contrary is proven.' * * *
"* * * In Burgoyne v. Showler [1 Rob.Ecc. 10] it is said: `I think I should be establishing a very dangerous precedent if I were to pronounce against this will. I think the principle on which Sir H.J. Fust has acted in these cases is this: That, in the absence of the recollection of the witnesses, he will presume the will to be duly executed.' In Re Leach [12 Jur. 381] each of the witnesses `remembered that he signed his name as a witness to the will in the testator's presence, but neither of them could recollect whether the testator signed his name in their presence, nor whether his signature was already set to the will when they signed, or whether the other witness was present'; and upon this testimony it was held that `the presumption is in favor of the due execution, according to the principle laid down by the learned judge who sat for me in the case of Burgoyne v. Showler, and I therefore decree probate to pass as prayed.' In Kirk v. Carr [ 54 Pa. 285] the court says: `Want of memory will no more destroy the attestation than insanity, absence, or death.' In Clarke v. Dunnavant [10 Leigh 13], Tucker, J., in his concurring opinion, says, having alluded to a case where the attesting witness to a will had sworn affirmatively that the statute had not been complied with in making it: `How is it where, as in this case, they do not negative a compliance with the statute, but merely have forgotten the circumstances? It seems to me that, upon fair analogy, the question should be decided as it would be if the witness were dead, and his handwriting proved. And so, accordingly, I think, are the authorities to be understood.' After referring to the case of Jackson v. Le Grange, 19 Johns. 386, approvingly, he says: `Where the memory of the witness fails, the proof of his signature will justify an inference that all the requisites of the law have been complied with.' Further on he says: `From the whole of these cases, then, I deduce that on a question of probate the defect of memory of the witnesses will not be permitted to defeat the will, but that the court may, from circumstances, presume that the requisitions of the statute have been observed, and that they ought so to presume from the fact of attestation, unless the inferences from the fact are rebutted by satisfactory evidence.' Having alluded to suggestions of mischief which might follow the decision, he says: `Far greater mischiefs would arise from a contrary decision, which should make the rights of every devisee and legatee depend, not only upon the honesty, but also upon the slippery memory of witnesses. Under such a decision no man could be sure of dying testate, since the forgetfulness of a witness would frustrate all his precaution; and a question of title by will, which, in the spirit of the statute of frauds, the legislature designed to rest upon written evidence alone, would, after all, depend upon the integrity and the memory of those who were called on to attest the instrument. The consequence would be that I may have a good will by me to-day, but, if I live five years, it may become a void instrument, because one of the witnesses to it cannot recall some ceremony of its execution. Such a consequence I would not aid in bringing about. It would tend, I have no doubt, to multiply the attempts, already too common, to set aside wills, since the chances of success must be very much increased if the frailty of human memory is to be called in to the aid of the discontented heir.' In the leading opinion by Parker, J., the same views are expressed, and he says: `Few persons witnessing a paper would, after eight or nine years, be able to recall every fact that might be necessary to give it legal validity; and if their defect of memory is, without other impeachment, to prejudice the rights of parties claiming under it, the mischief would be greater than any that can result from this decision.' * * *"
In consequence, we hold that the 1954 instrument was executed with all the formality required by our statute § 6-304, W.C.S. 1945:
"All wills to be valid must be in writing, or type-written, witnessed by two (2) competent witnesses, and signed by the testator or by some person in his presence and by his express direction, * * *."
It was signed by the testator and witnessed by two witnesses at his request. That was sufficient.
We also hold the 1954 instrument, improperly referred to in these proceedings as a carbon copy, but in fact an original instrument which bore the signature of the testator and the signatures of two subscribing witnesses, must be admitted to probate as the last will and testament of the deceased.
Inasmuch as the 1954 instrument also contained an express clause revoking all previous wills and we now find that the 1954 instrument was the last will and testament of the deceased, there is now left no question but that the 1949 will of the deceased was revoked.
What we have previously said with respect to the 1949 instrument remaining as evidence of the contract between the deceased and his first wife, Emily K. Stringer, does not mean that the property of the deceased should be distributed in accordance with the provisions of the 1949 instrument because that will is now revoked. It does, however, mean that the deceased's obligations under the contract evidenced by the 1949 instrument must be discharged and satisfied during the administration of the deceased's estate, and that the portion of that estate which would have passed to the family of the deceased's first wife, Emily K. Stringer, must be set over to them in fulfillment of the deceased's contractual obligation. Not until then will the portion of the estate of the deceased remaining after the satisfaction of the contractual obligation be subject to disposition under the terms of the 1954 last will and testament of the deceased.
It is, therefore, ordered that the judgment of the trial court be reversed; that the judgment and order admitting the 1949 instrument to probate as the last will and testament of the deceased be vacated, set aside and held for naught; that the court enter its judgment admitting the 1954 instrument to probate as the last will and testament of the deceased; that the contractual obligations assumed by the testator under and by virtue of the terms of the 1949 mutual and reciprocal wills be fulfilled by setting over unto the parties named in the 1949 mutual will of the deceased such properties as are therein specified and which remained in the possession and ownership of the deceased at the date of his death; and that the district court make such other and further order as may be necessary to carry into full effect the conclusions reached in this opinion.
Reversed with directions.
In the Matter of the ESTATE of Charles L. STRINGER, Charles Limuel Stringer, also known as Chas. L. Stringer, Deceased.
Bertie M. STRINGER, Appellant (Defendant below), v. Wilhemine M.L. Miller, Appellee (Plaintiff below). No. 2871. Supreme Court of Wyoming. Nov. 3, 1959. 345 P.2d 786 ON PETITION FOR REHEARINGOPINION
Both parties have petitioned for rehearing.
Appellee charges our opinion omitted material facts; material facts were incorrectly stated; and important points of law raised were not considered.
The omitted fact is said to be that appellant three times denied there was a will. Such denial is not material to the validity of the instrument. It could not change the fact, established by competent evidence, that there was such a will. Even had appellant known there existed a last will and intended to conceal it — which does not appear to be the case — the instrument would still have been and remained the deceased's last will and testament.
Appellee intimates that when a witness, who at one time was an attorney for the proponent of a will and who is attorney for the special administrator, testifies to the signature of the deceased upon that will, such testimony must be presumed to be influenced by interest. It is also implied that similar testimony of the special administrator would also be tinged with a like interest. These assumptions are entirely unjustified. The services of both the special administrator and the attorney end the moment any will is admitted to probate. It is also true that the former employment of the lawyer does not suggest any reflection on his credibility.
What we have now said likewise negates the charge that we incorrectly referred to these witnesses as being disinterested. Appellee criticizes our reference to the brother of the deceased as an interested witness because the brother's share would amount to only 1/12 of the estate. The recipient of any portion of the estate, especially one of the size in this case, certainly has an interest.
Appellee next insists we misstated the distance as being 40 miles which deceased traveled in order to have the 1954 will witnessed. Appellant testified she and the deceased went from Gillette to the home of the witnesses and one of those witnesses said that distance was 40 miles.
The remainder of appellee's complaint merely consists of reargument of matter which has previously been considered.
The appellee's petition for rehearing is, therefore, denied.
Appellant says we erred in sustaining the trial court's consolidation of the causes for the probate of the 1949, 1952 and 1954 instruments offered as the last will and testament of the deceased. Counsel indicates that statements of the trial judge made in chambers and in open court misled him into believing that the hearing would be upon the 1954 will and upon its termination hearing would be had upon the 1949 and 1952 wills.
We find an order entered on January 16, 1958, setting the hearing on the petition for probate of the 1954 instrument at 10:00 a.m., February 3, 1958, and also setting the hearing on the petition for probate of the 1949 and 1952 instruments at exactly the same day and hour, but providing that the hearing on the latter instruments would immediately follow the hearing on the 1954 will. The verbal statements attributed to the judge did not vary from that order which had apprised appellant and her counsel that they should come into court the morning of the hearing prepared with all witnesses and evidence available to them which would be relevant upon the probate of either of the several documents about which proof was to be taken. Furthermore, the record discloses that counsel was given an unrestricted opportunity to call and examine any witnesses he desired and to produce any other evidence pertinent to the matters so set for hearing.
When the appellant rested, the appellee moved that probate of the 1954 instrument be denied. No ruling was made upon the motion, but the court said, "Well, let's hear some more testimony, then", and appellee called under the statute and cross-examined the proponent of the 1954 will. This was followed by appellant's examination of the same witness who was then re-examined by appellee. Seven more witnesses were then called by appellee, cross-examined by appellant and re-examined by appellee, after which appellee rested. At this point the court said it wanted briefs.
"* * * about the execution of the Will which is now offered for probate. I want a brief on that as to whether or not it has been duly executed. And then, I want a brief on mutual Wills and the effect of mutual Wills on a subsequent marriage and the making of another Will."
Appellant then inquired, "* * * are all these three cases consolidated for this hearing?"; to which the court replied, "Yes, they are." To this appellant made no objection, although her counsel remarked he thought there should be an order of consolidation entered, but did not pursue the matter.
A discussion about stipulations then took place, during which the court inquired if appellant wished to offer anything further, and on receiving an affirmative response, the court granted its permission and appellant's counsel said he wanted to continue to call witnesses, which he did by calling the proponent of the 1954 will and then called and cross-examined opposing counsel under the statute, after which appellant rested.
Under these circumstances it remains in doubt at what stage of the proceeding the hearing on the 1954 will ended and just when the hearing on the 1949 and 1952 wills began, if it began at all.
At this point we might comment that an order entered April 17, 1958, the same day the court entered its order admitting the 1949 will to probate, did not pretend to consolidate retroactively the hearings upon the several petitions for probate. The order merely provided that the files in these causes be consolidated into one file. However, without quibbling over whether the three causes were improperly consolidated for hearing or merely considered together by the court in reaching its decision as to which of the three instruments offered was the last will of the deceased, the appellant now has little cause for complaint regarding the probate of the 1954 instrument, inasmuch as we found the evidence in the record required that will to be admitted to probate.
We think, however, that it is fair to conclude that a just complaint may be that our direction to the trial court should have been confined to the vacation and setting aside of the order admitting the 1949 instrument and ordering the admission of the 1954 will to probate in its stead. With such a contention we could agree, notwithstanding we remain convinced the trial court was correct in finding the 1949 will evidenced a contract from which the estate cannot escape. Among the authorities which seem to represent majority opinion on the question of how such contractual rights should be asserted are those cited in 57 Am.Jur., Wills, § 716, p. 485, where it is said:
"* * * Generally speaking, the remedy of a person injured by the violation of a contract for the execution of wills containing reciprocal bequests and bequests to third persons effective upon the death of the surviving testator is not to be had in a contest of the probate of the will which constitutes the violation of which complaint is made, since, in the absence of statute, the only issue on a contested probate is whether the paper propounded is `the last will of the decedent.' Similarly, a contract jointly to execute a single will which is reciprocal in the bequests made cannot be asserted as a ground for contesting the probate of a later revoking will. It is not a ground of contest to the probate of a will that it violates an agreement to make wills containing reciprocal provisions or revokes a former will made in pursuance of such agreements, and the probate court cannot refuse to probate a will on the ground that it was made in violation of such an agreement, unless such court is, by statute, given equitable jurisdiction, or the probate of the will has been enjoined by a court of equity. Jurisdiction cannot be conferred by the consent of the parties so as to permit the probate court to hear a contest based on the ground that the propounded instrument violates a contract for the execution of mutual and reciprocal wills. * * *"
We do not have the exact type of statute giving the probate court the equitable jurisdiction to which reference is made in the above quotation. Nor has the probate of a will in this case been enjoined by a court of equity. However, § 2-3, W.S. 1957, formerly § 6-101, W.C.S. 1945, gives exclusive jurisdiction to district courts of the state in probate matters in the following words:
"The district courts of the state shall have exclusive original jurisdiction of all matters relating to the probate and contest of wills and testaments, the granting of letters testamentary and of administration, and the settlement and distribution of decedents' estates. The court granting the letters shall have exclusive jurisdiction of all matters touching the settlement and distribution of the estates whereon such letters have been granted."
But this statute does not, in our opinion, change the fact that in proceedings for the probate of an instrument as the last will and testament of the deceased only matters affecting the validity and subsistence of the will should be considered, and any right or claim against the estate arising through contract must be asserted in an independent action against the administrator or the executor of the estate as the case may be.
The view we now take was touched upon by this court in Church v. Quiner, 31 Wyo. 222, 226, 227, 224 P. 1073, 1074, it was said.
"While in this state the district court is the court of general jurisdiction, and the same court has by the Constitution (section 10, art. 5) jurisdiction `of all matters of probate,' yet, in the exercise of its probate powers, its jurisdiction is limited and special, and when its acts in probate are without [beyond] the limits of the special jurisdiction conferred, they have no binding effect `even upon those who have invoked its authority.' * * *"
This statement in the Quiner case was made in deciding that conflicting claims as to who was entitled to receive distribution of a portion of an estate, under separate assignments of the same interest, could not be determined in the probate proceeding but must be litigated as a civil matter. So it is that if appellee, or any others, have contractual rights arising from the 1949 wills, these claims and rights must be ascertained and adjudicated in a proper suit, separate and apart from this proceeding, which was and must remain exclusively one to determine the validity and subsistence of a last will and testament of the deceased. Any such action must, of course, be brought against the administrator or executor of deceased's estate and any right or claim established must be satisfied during the administration of that estate.
With further reference to the proper procedure to be followed, where a contractual right is claimed, in 97 C.J.S. Wills § 1366 c, p. 298, it is said.
"* * * So, where a party to a contract or agreement for mutual wills makes a later will, even without notice to, or the knowledge of, the other party, or after the latter's death, the mutual will cannot be admitted to probate, since it is not the testator's last will, and the later will may be admitted, without regard to the fact that it does not comply with the agreement; but it is subject to the rights of interested persons to compel a distribution of the estate under the contract on which the mutual will was founded, their remedy being, however, in equity, and not in the probate court, which has no choice but to distribute the estate under the last will."
In In re Isacson's Estate, 77 Idaho 12, 285 P.2d 1061, 1063, it is said:
"Although a joint will and acceptance of benefits thereunder by the survivor may, under some circumstances, constitute an irrevocable contract, such facts do not make the joint will the irrevocable will of the survivor; and his joint will may be revoked by a later will. Furthermore, the question of whether an irrevocable contract exists is not an issue when the later will is tendered for probate.
"The issues of whether such an irrevocable contract exists and the enforcement thereof are matters to be tried out in a court of equity, and are beyond the equitable powers of the probate court in probate matters. * * *"
The statement as to the forum in which the contractual right is to be litigated does not, of course, apply in this state because of our statute quoted above.
Also in Annotation, 169 A.L.R. 9, 53, we find the following:
"Generally speaking, the remedy of a person injured by the violation of a contract for the execution of wills containing reciprocal bequests and bequests to third persons effective upon the death of the surviving testator is not to be had in a contest of the probate of the will which constitutes the violation of which complaint is made, since, in the absence of statute, the only issue on a contested probate is whether the paper propounded is `the last will of the decedent.' * * *"
Other authorities are Smith v. Davis, 200 Ga. 317, 37 S.E.2d 182; Id., 203 Ga. 175, 45 S.E.2d 609; In re Kenny's Estate, 233 Iowa 600, 10 N.W.2d 73; In re Cocklin's Estate, 230 Iowa 415, 297 N.W. 864; Id., 232 Iowa 266, 5 N.W.2d 577; 236 Iowa 98, 17 N.W.2d 129, 157 A.L.R. 584.
In consequence of what we now say here, the opinion heretofore rendered and the order and direction contained in the final paragraph thereof is modified and the last paragraph made to read as follows:
"It is, therefore, ordered that the judgment of the trial court be reversed; that the judgment and order admitting the 1949 instrument to probate as the last will and testament of the deceased be vacated, set aside and held for naught; that the court enter its judgment admitting the 1954 instrument to probate as the last will and testament of the deceased; and that the court make such orders as may be necessary to carry into full force and effect this direction."
Because of the direction now given a rehearing on appellant's petition is unnecessary.
Rehearing denied and directions in original opinion modified.