Robert M. OLIVE, Sr., Individually and as Executor of the Estate of Ruth Sedberry Olive, Deceased
v.
George BIGGS, et al.
No. 31.
Supreme Court of North Carolina.
April 15, 1970.*307 McCoy, Weaver, Wiggins, Cleveland & Raper, Fayetteville, for plaintiff-appellee.
*308 Quillin, Russ, Worth & McLeod, Fayetteville, for defendants-appellants.
LAKE, Justice.
The document before us for construction is what is called a joint will. Ginn v. Edmundson, 173 N.C. 85, 91 S.E. 696; Atkinson on Wills, 2d ed., § 49; 57 Am. Jur., Wills, § 681. In order to determine its effect upon the present right of the surviving husband to convey an unencumbered fee simple estate in (a) land owned by the wife alone at the time of her death, (b) land then owned by them as tenants by the entireties, and (c) land owned, at the time of the wife's death, by the husband alone, we must determine first the effect of the document as a will and second its effect, if any, as a contract.
What is called a joint will, is, in effect, the separate will of each person signing it as a testator. Walston v. Atlantic Christian College, 258 N.C. 130, 128 S.E.2d 134; In Re Davis' Will, 120 N.C. 9, 26 S.E. 636; 57 Am.Jur., Wills, §§ 688, 735; Annot., 169 A.L.R. 9, 12. It is as if each of them had simultaneously executed separate, identical wills. Thus, though the document is not executed by one of the signers in the manner prescribed by the statute for the execution of wills, it may nevertheless be properly probated as the will of the other. In Re Cole's Will, 171 N.C. 74, 87 S.E. 962. Though revoked by one of the signers, it may continue in effect and be properly probated as the will of the other. In Re Will of Watson, 213 N.C. 309, 195 S.E. 772.
Nothing else appearing, either signer of a joint will may revoke it, in any manner permitted by statute, during the life of all of the persons signing as testators. In Re Davis' Will, supra. Upon the death of one of the persons so signing, without a valid revocation of the document by that person, it will be probated and given effect as his or her will. In Re Davis' Will, supra; In Re Will of Watson, supra. Thereafter, upon the death of another person so signing the document, without a revocation of it by him or her, it will then be probated and given effect as the will of that person. In Re Davis' Will, supra; 57 Am. Jur., Wills, § 682. Nothing else appearing, though one of the signers has died and the document has been probated as his or her will, the surviving signer may revoke it and, in that event, it cannot be probated as the will of such survivor. Ginn v. Edmundson, supra; In Re Davis' Will, supra. That is, the mere execution of a joint will does not establish the existence of a contract by the signers thereof so to dispose of their property. Ginn v. Edmundson, supra; In Re Davis' Will, supra; Atkinson on Wills, 2d ed., § 49; 57 Am.Jur., Wills, § 729. The intervening death of one of the signers, followed by the probate of the document as the will of such signer, nothing else appearing, does not impair the right of the survivor to convey property belonging to him at the time of such conveyance. Ginn v. Edmundson, supra.
Even where there is a contract between the testators not to revoke the joint will, the better view is that the revocation by the survivor is effective to prevent the probate of the instrument as the will of the survivor, leaving the disappointed legatees or devisees under the joint will to their rights, if any, for breach of the contract as beneficiaries thereof. Allen v. Bromberg, 147 Ala. 317, 44 So. 771; Stewart v. Todd, 190 Iowa 283, 173 N.W. 619, 180 N.W. 146, 20 A.L.R. 1272; Rastetter v. Hoenninger, 214 N.Y. 66, 108 N.E. 210; Williams v. Williams, 123 Va. 643, 96 S.E. 749; Doyle v. Fischer, 183 Wis. 599, 198 N.W. 763, 33 A.L.R. 733; Annot., 169 A.L.R. 9, 24, 47; 57 Am.Jur., Wills, § 690; Atkinson on Wills, 2d ed., § 49. Thus, in Stone v. Hoskins (1905), P. 194 (Probate Division, England), it was held that a later will, executed by the survivor *309 in violation of his contract not to revoke the joint will, must be admitted to probate since, notwithstanding such contract, a will is always revocable, but a court of equity may impose a trust upon the devisee under the later will in favor of the beneficiary of such contract.
We shall consider below the effect of the document before us as a contract between Dr. and Mrs. Olive. Considered only as the will of Dr. Olive, it is revocable by him and does not impair his right to convey properties now owned by him, notwithstanding the fact that it was also executed by Mrs. Olive and has been probated as her will.
We turn now to the effect of this document as the will of Mrs. Olive. Obviously, the will of Mrs. Olive could not and did not devise to Dr. Olive property, which at the time of her death, was already owned by him alone or was owned by them as tenants by the entireties, nor could her will, nothing else appearing, limit his right to convey such properties after her death. Land owned by a husband and wife as tenants by the entireties is not owned by them in shares, but by the two considered as a separate legal being. Isaacs v. Clayton, Comr. of Revenue, 270 N.C. 424, 154 S.E.2d 532. Consequently, nothing else appearing, no interest in such property passes under the will of the first to die. Honeycutt v. Citizens National Bank, 242 N.C. 734, 89 S.E.2d 598. As Stacy, J., later C. J., said for the Court, in Davis v. Bass, 188 N.C. 200, 204, 124 S.E. 566, "Upon the death of one, either the husband or the wife, the whole estate belongs to the other by right of purchase under the original grant or devise and by virtue of survivorship, and not otherwise, because he or she was seized of the whole from the beginning, and the one who died had no estate which was descendible or devisable."
The record shows that in the preparation of this document Dr. and Mrs. Olive had the assistance of an attorney. It is reasonable to assume that when they executed it they were aware of this attribute of a tenancy by the entireties and, consequently, to assume, in the complete absence of any indication to the contrary, that they did not intend the provisions thereof relating to property owned by them as tenants by the entireties to be given effect as parts of the will of the first to die, but intended these provisions to become effective only as parts of the will of the survivor. It is equally reasonable to assume that neither of them intended the provisions of the document relating to the properties owned by the other alone to take effect, except as parts of the will of the owner thereof at the time of such owner's death. Therefore, considering the document as the will of Mrs. Olive, it does not show an attempt by her to devise property owned by her husband alone, or property owned by her and her husband as tenants by the entireties, unless she should survive her husband and thus be the owner of those properties at the time of her own death.
As Denny, J., later C. J., said for the Court, in Wachovia Bank & Trust Co. v. Burrus, 230 N.C. 592, 55 S.E.2d 183, "[W]here the devisor purports to devise property which belongs to the beneficiary, giving it to another, and also devises property of his own to the beneficiary, such beneficiary must make a choice between retaining his own property, which has been given to another, or take the property which has been given him under the terms of the will."
This doctrine of election does not apply, however, unless the intent of the testator to put the beneficiary to an election clearly appears from the terms of the will. Burch v. Sutton, 266 N.C. 333, 145 S.E.2d 849; Lamb v. Lamb, 226 N.C. 662, 40 S.E.2d 29. For example, the doctrine of election does not come into play where it appears that the testator was under the mistaken belief that he or she had the right *310 to devise the property of the person alleged to be under the duty to make the election. Breece v. Breece, 270 N.C. 605, 155 S.E.2d 65; Burch v. Sutton, supra.
In Walston v. Atlantic Christian College, supra, the testator was under the mistaken belief that he and his wife held title to land as tenants in common, whereas they actually held it as tenants by the entireties. He and his wife made a joint will purporting to devise this land to the survivor for life and then to Atlantic Christian College. The court found there was no evidence of a contract between them so to do. The will also bequeathed to the wife, absolutely, the personal property of the husband. Upon the death of the husband, the surviving wife brought an action to quiet title to the land. The court held that the wife was not put to an election since it could not be inferred that the husband intended to devise or bequeath anything to her "in lieu of her legal interest as a tenant by the entireties in the land involved."
We think it quite clear that the document before us shows upon its face that Mrs. Olive (and similarly, Dr. Olive) intended that thereby, if she died first, all the property of which she was the sole owner would pass to Dr. Olive as a devise from her and all of the property held by them as tenants by the entireties would pass to him by operation of law so that he would then be the owner of the whole, together with the lands of which he was already the sole owner. Conversely, it was her intent and expectation that, if he died first, she would be the sole owner of the whole of the three types of properties. In that event, and only in that event, she intended that the provisions in Items Three through Twelve, relating to the land owned by him alone or to the land owned by them as tenants by the entireties, would be given effect as parts of her will. This is not the intent which calls into play the doctrine of election; namely, the intent by her will to devise his property and, in lieu thereof, devise hers to him.
Thus, the doctrine of election has no application to the present case. Consequently, the document before us, considered only as the will of Mrs. Olive, and Dr. Olive's acceptance of the devise to him thereby, do not deprive Dr. Olive of title to or of the right to convey land which, at the time of Mrs. Olive's death, was owned by him alone or was owned by them as tenants by the entireties.
The document before us devises to Dr. Olive certain properties which Mrs. Olive alone owned at her death. Though it is joint in form, it must be construed as if it were the will of Mrs. Olive alone to determine what title Dr. Olive took thereunder to those properties. 57 Am.Jur., Wills, § 736.
Item Two of the will is a clear and express devise of all of the property of Mrs. Olive to Dr. Olive "unconditionally and in fee simple," he having survived her. If the will had stopped with that provision, no question of construction would arise since the technical term "in fee simple" is to be given its technical meaning in the absence of a clear expression of a contrary intention in the will itself. Ray v. Ray, 270 N.C. 715, 155 S.E.2d 185; Wachovia Bank & Trust Co. v. Waddell, 237 N.C. 342, 75 S.E.2d 151. Furthermore, G.S. § 31-38 provides: "When real estate shall be devised to any person, the same shall be held and construed to be a devise in fee simple, unless such devise shall, in plain and express words, show, or it shall be plainly intended by the will, or some part thereof, that the testator intended to convey an estate of less dignity."
The Court of Appeals was of the opinion that the dominant purpose of the testator was, first, to provide for the survivor and, second, to provide for the *311 disposition of the properties of both husband and wife if they should die simultaneously. To avoid inconsistency with Item Two, the Court of Appeals construed Items Three through Twelve as limited to the unlikely situation of the simultaneous deaths of Dr. and Mrs. Olive. In our opinion, this construction of such remaining portions of the will is unduly limited and does not reflect the intent of the testatrix as it appears from the entire will.
It is to be observed that in Item Three the attempted devise to the children of the testatrix is to take effect "upon the death of the survivor, or in the event that our death is simultaneous." This language does not appear in the remaining items, though in Items Five and Six there are provisions as to conditions which may exist "at the time of our death" and "at the time of the death of the survivor of us," and the residuary clause in Item Twelve is a devise and bequest to the children of the testatrix "after the death of the survivor." Likewise, in Item Thirteen there is provision for the appointment of a substitute executor "after the death of the survivor."
As the Court of Appeals observed, the cardinal principle in the construction of a will is to give effect to the intent of the testator as it appears from the language used in the instrument itself, insofar as that can be done within the limits of rules of law fixed by statute or by the decisions of this Court. Raines v. Osborne, 184 N.C. 599, 114 S.E. 849. The intent of the testator is to be determined from the entire instrument so as to harmonize, if possible, provisions which would otherwise be inconsistent. Clark v. Connor, 253 N.C. 515, 117 S.E.2d 465; Andrews v. Andrews, 253 N.C. 139, 116 S.E.2d 436; Gatling v. Gatling, 239 N.C. 215, 79 S.E.2d 466.
Considering this will in its entirety, we think it apparent that the testatrix was not solely, or even primarily, concerned with the possibility of the simultaneous deaths of her husband and herself in making the provisions for her children. Nor did she intend, in our opinion, by Items Four and Five, to devise the properties there described to a designated child at the expense of her general devise in Item Two of all of her property in fee simple to her husband if he survived her. We think it apparent that the intent of the testatrix was that if her husband survived, as he has done, all of her property was to pass to him "unconditionally and in fee simple," but at his death was to pass to the children as specified in Items Three through Twelve of the will, subject to the possibility of a conveyance by him of the property on East Mountain Drive hereinafter noted. Items Five and Six of the will expressly recognize the possibility that the property on East Mountain Drive might not be owned "at the time of our death." We think it unduly restrictive to limit the words "our death" to the simultaneous deaths of the testatrix and her husband. Construing the term "our death" in the light of the circumstances surrounding the execution of this document (see Wachovia Bank & Trust Co. v. Dodson, 260 N.C. 22, 33, 131 S.E.2d 875), we are of the opinion that it means "the death of the survivor," which is the language used in Item Three. Consequently, we hold that the proper construction of the will of Mrs. Olive is a devise "unconditionally and in fee simple" of all of her property to her husband, followed by a direction as to the disposition to be made of the properties at his death.
In Barco v. Owens, 212 N.C. 30, 32, 192 S.E. 862, 863, Stacy, C. J., speaking for the Court, said:
"The general rule is that where real estate is devised in fee, or personalty bequeathed unconditionally, a subsequent clause in the will expressing a wish, desire, or direction for its disposition after the death of the devisee or legatee will not defeat the devise or bequest, nor limit it to a life estate. * * * Conditions *312 subsequent, in the absence of compelling language to the contrary, are usually construed against divestment. * * * The absolute devise is permitted to stand, while the subsequent clause is generally regarded as precatory only."
This general rule of testamentary construction was applied to give to the devisee an unrestricted fee simple estate in Taylor v. Taylor, 228 N.C. 275, 45 S.E.2d 368; Peyton v. Smith, 213 N.C. 155, 195 S.E. 379; and Carroll v. Herring, 180 N.C. 369, 104 S.E. 892. While it is a rule which will yield to "compelling language" showing a contrary paramount intent of the testator, we find no such clear evidence of a contrary intention in this instrument. On the contrary, the document, considered in its entirety, as well as the clear, unequivocal language of Item Two, shows that Mrs. Olive's paramount purpose was to provide for Dr. Olive if her survived her. We, therefore, hold that the document, considered only as the will of Mrs. Olive, devises to Dr. Olive a fee simple estate in the land owned by the testatrix at her death and imposes no limitation upon his right to convey the same.
There remains for determination the question of whether the document is also a sufficient memorandum of a contract between the husband and wife that the survivor will not revoke the document as his or her own will. "It is * * * well settled that where a husband and wife make an agreement for the disposition of their respective estates, in a particular manner, and execute either a joint will or separate wills providing for the disposition of their estates in accordance with the agreement, such agreement may be upheld by specific performance." Godwin v. Wachovia Bank & Trust Co., 259 N.C. 520, 529, 131 S.E.2d 456, 462. Such joint will may, itself, be a sufficient memorandum of such contract to satisfy the Statute of Frauds. Godwin v. Wachovia Bank & Trust Co., supra.
The great weight of authority is to the effect that where a husband and wife enter into a contract, otherwise valid, to make, and do make, a joint will or separate wills, whereby each devises his or her property to the survivor of them and the survivor devises his or her property to others, according to a specified plan of distribution, and one spouse dies without revoking his or her will, the survivor, accepting the benefits of the will of the deceased spouse is bound by the contract. His or her subsequent revocation of the will is a breach of such contract for which a court of equity will give relief in a suit by those who would have been the beneficiaries of such will had the survivor not revoked it. In such event, equity will fasten a trust upon the properties which the survivor so contracted to devise, which trust is enforceable against a subsequent taker of the property other than a bona fide purchaser for value without notice. See: Dufour v. Pereira, 1 Dick. 419, 21 English Rep. 332; Alken v. Bromberg, supra; In Re Johnson's Estate, 389 Ill. 425, 59 N.E.2d 825; Curry v. Cotton, 356 Ill. 538, 191 N.E. 307; Stewart v. Todd, supra; Rastetter v. Hoenninger, supra; Stevens v. Myers, 91 Or. 114, 117 P. 37, 2 A.L.R. 1155; Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165, 169 A.L.R. 1; Wilson v. Starbuck, 116 W.Va. 554, 182 S.E. 539, 102 A.L.R. 485; Allen v. Ross, 199 Wis. 162, 225 N.W. 831, 64 A.L.R. 180; Doyle v. Fischer, supra; Annot., 169 A.L.R. 9, 57-58, 61; 57 Am.Jur., Wills, §§ 717, 718, 721.
In the present case, the joint will declares, "We, Robert M. Olive, Sr., and Ruth Sedberry Olive, * * * in consideration of each making this our Last Will and Testament, do hereby make, publish and declare this instrument to be jointly as well as severally our Last Will and Testament." (Emphasis added.) This is contractual language. It is sufficient, in conjunction with the reciprocal devises and bequests, to show the existence of a contract *313 between the husband and wife, pursuant to which the joint will was executed by them. The testimony of the attorney who drafted the document was simply that he knew of no agreement between Dr. and Mrs. Olive with respect to the execution of the will, or the right of the parties thereafter to change the will, "other than what is contained in this will." We need not determine whether the admission of this evidence, over objection, was error, as the appellant contends, for the reason that it was not prejudicial to the appellant. There is nothing in the record to suggest any agreement between Dr. and Mrs. Olive "other than what is contained in this will." Since, in our view, the will contains within itself clear evidence of such agreement, which is not contradicted, the admission of this testimony was not prejudicial to the appellant.
G.S. § 52-6(a) provides:
"No contract between husband and wife, made during their coverture shall be valid to affect or change any part of the real estate of the wife * * * unless such contract * * * is in writing, and is acknowledged before a certifying officer who shall make a private examination of the wife according to the requirements formerly prevailing for conveyance of land."
The document before us was not acknowledged in conformity with this statute. This does not affect its validity as the will of Mrs. Olive but, by the terms of the statute, it could not have validity as a contract affecting or changing her real estate. A contract by which one binds himself to make a specified testamentary disposition of his real property is a contract affecting that property. Consequently, a contract between husband and wife prescribing the testamentary disposition of their properties is not binding upon the wife unless the procedure prescribed by G.S. § 52-6 is followed. During the life of the wife, such a contract, not acknowledged as prescribed by this statute, is not binding upon the husband since, as to him, there is a failure of consideration. When, however, the wife dies, leaving the will for which her husband bargained with her, the contract is thereafter binding upon him. In 1 Williston on Contracts, 3rd ed., § 106, it is said: "[W]hile a promise void for incapacity of the promisor will not support a counter-promise, if the void promise is actually performed, the performance may become sufficient consideration to support the counter-promise. And other instances may be found where a bilateral agreement originally unenforceable gives rise, when performed on one side, to a binding unilateral contract."
In Godwin v. Wachovia Bank & Trust Co., supra, such a contract, not acknowledged by the wife as required by G.S. § 52-12, now G.S. § 52-6, was held to have been incorporated by reference into the separate, simultaneous wills of the husband and wife. The wife died leaving her will in effect. The husband then made another will and died. In an action brought to compel distribution according to the former will, which he had made pursuant to the contract, this Court held that the husband was bound by the contract and the defendant, taking under the subsequent will made by the husband in breach of the contract, took the property, subject to the rights of the beneficiary in the former will. The Godwin case did not hold that, by virtue of the doctrine of incorporation by reference, the contract of the wife to make a specified testamentary disposition of her property was binding upon her notwithstanding G.S. § 52-6, nor did it hold that, though the requirements of the statute have not been met, the executory contract of the wife to make such will is consideration for the promise of the husband, so as to make the contract binding upon him during her lifetime. Those questions were not before the Court in the Godwin case and they are not before us in the present case. We hold, however, that the wife *314 having died, leaving a will in accordance with the contract, the husband is bound by his contract to make the agreed testamentary disposition of his own property.
It is necessary, however, to determine what the contract was. As noted above, the document, in Items Five and Six, clearly contemplates the possibility that the property on East Mountain Drive, which is the subject of the contract by Dr. Olive to sell and convey to the defendants Biggs, might not be owned by the surviving testator at death; that is, it might be transferred by an inter vivos conveyance.
In Sparks, Contracts to Make Wills, p. 53, it is said that where the contract is for a devise of specific real estate, as distinguished from all or a fractional part of the promisor's estate, any subsequent conveyance, other than to a bona fide purchaser, is ineffective as against the beneficiary of the contract. In our opinion, this statement is too sweeping in its extent. Each such contract must be construed to determine the intent of the parties thereto with reference to the right of the owner of the property to make an inter vivos conveyance. See Annot., 108 A.L.R. 867, 868-9.
We find in the document before us a clear indication that Dr. and Mrs. Olive intended the survivor to have full power to sell and convey the land on East Mountain Drive, referred to in Items Five and Six. We find, however, nothing therein to indicate an intent that the survivor might make an inter vivos sale or conveyance of other properties specifically mentioned. As to the effect of such contract upon the right of the survivor to make an inter vivos transfer or conveyance of residuary property and as to the effect of a contract to devise or bequeath all or a fractional part of one's estate upon his right of inter vivos conveyance, see: Sample v. Butler University, 211 Ind. 122, 4 N.E.2d 545, 5 N.E.2d 888, 108 A.L.R. 857; 57 Am.Jur., Wills, § 710; Atkinson on Wills, 2d ed., § 49.
We hold, therefore, that Dr. Olive is bound by the contract shown in the document before us. His right to sell and convey the property on East Mountain Drive, referred to in Items Five and Six, is not restricted by the contract. He may not, however, make a testamentary disposition of any property contrary to this contract, or revoke the joint will as his will, or make an inter vivos conveyance or transfer of any other property specifically dealt with in this document which will prevent a court of equity from subjecting the property, so transferred in breach of the contract, to the rights of the beneficiaries thereof prior to the acquisition of such property by a bona fide purchaser for value.
The superior court was in error in concluding and adjudging that the joint will does not constitute a contract between the plaintiff and his wife requiring such will to remain in effect as the will of the plaintiff.
This matter is remanded to the Court of Appeals for the entry of a judgment further remanding it to the superior court for the entry by it of a judgment in conformity with this opinion.
Error and remanded.
HIGGINS, Justice (dissenting).
A study of the will involved in this proceeding convinces me that all issues were correctly resolved by the trial judge and by the Court of Appeals. I must dissent from any decision or opinion to the contrary.
Item Two of the will furnishes a key to the intent of the testators. "We, and each of us, devise and bequeath all of his or her property, unconditionally and in fee simple, to the survivor, in the event that *315 one of us survives the other." (Emphasis added) Necessarily, there must be a survivor in order for Item Two to become controlling. Item Two, in the absence of simultaneous death, leaves to the survivor a full, absolute and final disposition of all the other's property. However, had there been no survivor, that is, a simultaneous death, Item Two would be inapplicable and the subsequent items would control. Actually there was a survivor and in my judgment the subsequent dispositive items of the will are inapplicable. It seems clear that Item Two was intended to govern in case there was a survivor, and that the subsequent items were intended to control in case of simultaneous death, but not otherwise. This construction is borne out by the will, which admittedly is not free from some ambiguities.
Item Two begins "We and each of us devise and bequeath all of his or her property, unconditionally and in fee simple, to the survivor * * *" and when properly construed is the separate will of each maker of his property to the other, if there is a survivor. If there is no survivor, that is in case of simultaneous death, there is no one to take under Item Two, and there being no taker, the rules of intestacy would dispose of the property of each. In order to obviate this situation, the subsequent items of the will were intended to take over in such contingency, that is, no survivor. While Item Two begins "We and each of us", all subsequent items begin "We". The words "each of us" in Item Two indicate that Item Two is the separate will of each, but in the subsequent items the beginning is "We devise and bequeath", which shows the joint will of both. This indicates to me that Items Three through Twelve, inclusive, were only intended to apply in case of simultaneous death, when neither could take under Item Two.
The rules of interpretation applicable here are stated in a number of our cases. In Morris v. Morris, 246 N.C. 314, 98 S.E.2d 298, this Court held: "The discovery of the intent of the testator as expressed in his will is the dominant and controlling objective of testamentary construction, for the intent of the testator, as so expressed, is his will." (Citing authority) "And greater regard is to be given to the dominant purpose of the testator than to the use of any particular words." (Citing authority)
In Worsley v. Worsley, 260 N.C. 259, 132 S.E.2d 579, the Court said: "The general rule is that where real estate is devised in fee, or personalty bequeathed unconditionally, a subsequent clause in the will expressing a wish, desire, or direction for its disposition after the death of the devisee or legatee will not defeat the devise or bequest, nor limit it to a life estate. * * * "In contruing a will every word and clause will be given effect if possible, and apparent conflicts reconciled, and irreconcilable repugnancies resolved by giving effect to the general prevailing purpose of testator." (Citing authority)
Under these rules, notwithstanding inconsistencies, it is my conclusion that the intent of Dr. Olive and his wife was to give to the survivor all the other's property "unconditionally and in fee simple". But if neither survived the other, then Items Three through Twelve, inclusive, were intended as their joint will and disposed of all property owned by both. I vote to affirm the decision of the Court of Appeals.
BOBBITT, C. J., joins in dissenting opinion.