[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 540 Nora Fowler Curry and Stephen S. Curry, being then husband and wife, residents of Danville, Illinois, on the 10th day of August, 1928, executed in the presence of two witnesses an instrument purporting to be their joint will, which is in part as follows:
"I, Stephen S. Curry, and I, Nora Fowler Curry, do hereby make and publish this our last will and testament, jointly bequeathing each to the other, all real and personal property owned by either of us at the time of the death of either of us. The surviving testator to become beneficiary under this will, to all real and personal property of the deceased testator, and to serve as executor or executrix without bond for the other remaining heirs.
"The surviving testator of this covenant, either Stephen S. Curry or Nora Fowler Curry, bequeaths by this will, all real and personal property in his or her possession at time of death, to Robert Albert Learnard and Josephine Learnard, as follows:"
To Josephine Learnard and Robert Albert Learnard, respectively, 63.5 per cent and 36.5 per cent "of the net revenue derived from the renting, leasing or sale" of a nine-apartment building. To Robert A. and Josephine Learnard by the third clause, "all personal property owned *Page 541 by either testator, to be divided equally at the death of the surviving testator." By the fourth clause Nora Fowler Curry bequeathed her jewelry to Josephine Learnard, and by the fifth clause Stephen S. Curry bequeathed his jewelry to Robert A. Learnard. The sixth clause is as follows:
"It is further covenanted that the surviving testator care and provide for Josephine Learnard, until the time of her marriage.
"The reason for the difference in the percentages of income to be received by Robert A. Learnard and Josephine Learnard, is that Robert A. Learnard has received his education prior to the execution of this will, and that he also has received a farm, prior to the making of this will, under the will of his father.
The instrument was under the seal of each of the testators.
On August 10, 1931, Stephen S. Curry executed and published another instrument as his last will and testament. By this instrument he made bequests of $500 each to Nellie Cotton, Jane Crampton, Mrs. A.J. Saunders, Mrs. Josephine Plumly, Robert E.Leonard, the Children's Home of Vermilion county, the trustees of St. James Episcopal Church of Danville, Earl Unthank and Ora Unthank. The remainder of the estate was bequeathed to Nora F. Curry, the widow. Frank W. Butterworth and John A. Cathcart were nominated executors.
Stephen S. Curry died on August 31, 1931. Both of the purported wills were presented for probate to the probate court of Vermilion county. The joint will was admitted to record and probate on October 5, 1931. Nora Fowler Curry, nominated by such instrument as executrix thereof, was appointed and qualified as such. No appeal was prosecuted from the order admitting such joint will to record and probate. Upon objections by the present appellees, probate of the later instrument was denied. An appeal was taken from that order to the circuit court of *Page 542 Vermilion county. The circuit court held such instrument entitled to probate, and it was thereafter admitted to record as the last will of Stephen S. Curry. John A. Cathcart declined to serve as executor, but Frank W. Butterworth qualified and letters testamentary were issued to him.
The widow, together with Robert A. Learnard and Josephine L. Plumely, who had been made beneficiaries under the joint will, filed their bill, and later their supplemental bill, in the circuit court of Vermilion county against the executor, the devisees and legatees under the will dated August 10, 1931. The original and supplemental bills prayed that the joint instrument be adjudged to be an enforceable contract between the husband and wife who executed it; that all the property which Stephen S. Curry owned at the time be declared to be vested in the complainants in accordance with the provisions of such will; that the later purported will of Curry be held void and the defendants be enjoined from receiving any benefits under it. Answers and replications were filed. The cause was tried in open court before the trial judge. The circuit court entered a decree in conformity with the prayer of the original and supplemental bills. From that decree two of the defendants prosecute this appeal.
The record shows that the husband and wife had been married for more than ten years prior to August 30, 1931; that prior to August 10, 1928, they owned as tenants in common the real estate in Danville on which is located an apartment building worth $35,000 and remained such owners until the death of decedent. At the time of the making of the joint will Stephen S. Curry owned certain personal property worth about $10,000, and his wife was also the owner of certain personal property, the value of which is not shown in the record. Curry had no children or descendants no adopted child, no brothers or sisters or descendants thereof, and no parents. The widow had been previously married and had by that marriage two children, *Page 543 Robert A. Learnard and Josephine. L. Plumely. They were both residing with her at the time of her marriage to Curry, had so resided for more than ten years during the marriage, and stood in the acknowledged relationship of children to Curry.
The contentions of the appellants are that the will of August 10, 1928, was revocable by either party without notice to the other; that there is no evidence to establish a contractual relationship between the decedent and the appellees; that the burden of proof is on the appellees to prove lack of notice on the part of the decedent to his wife; that if there was a contract to make the disposition made by the will of August 10, 1928, it was within the Statute of Frauds; that the appellees have an adequate remedy at law; that there is a misjoinder of parties complainant; that the instrument of August 10, 1931, is the last will of Stephen S. Curry, and that, unaffected by the will of August 10, 1928, it controls the devolution of his property.
The terms "joint wills" and "mutual wills" are sometimes inaptly used interchangeably. A joint will is a written instrument executed and published by two or more persons disposing of the property, or some part of the property, owned jointly or in common by them or in severalty by them. On the death of the testator first dying it is subject to record and probate as his will, and on the death of the surviving testator it is subject to probate as his will. A joint will may or may not be mutual or reciprocal. Mutual or reciprocal wills are the separate instruments of two or more persons, the terms of such wills being reciprocal and by which each testator makes testamentary disposition in favor of the other. (30 Am. Eng. Ency. of Law, 556.) A will that is both joint and reciprocal is an instrument executed jointly by two or more persons with reciprocal provisions and shows on its face that the bequests are made one in consideration of the other. (Frazier v.Patterson, 243 Ill. 80, 28 R. C. L. 167.) *Page 544 The will of August 10, 1928, is a joint will with reciprocal provisions.
When joint wills first came before the English courts they were held invalid. (Earl of Darlington v. Pulteney, 11 Cowp. 260; Hobson v. Blackburn, 1 Add. Ecc. 277; Clayton v.Liverman, 2 Dev. B. 558.) Such was also the ruling of the earlier decisions of the courts of this country. In more modern times such wills are generally recognized by our courts.Gerbrich v. Freitag, 213 Ill. 552; Frazier v. Patterson, supra;Lewis v. Scofield, 27 Conn. 452, 68 Am. Dec. 404;Evans v. Smith, 28 Ga. 98, 73 Am. Dec. 751; Carle v. Miles,89 Kan. 540, Ann. Cas. 1915-A, 363; In Matter of Dietz, 50 N.Y. 88.
The authorities are not in harmony in the United States as to whether a joint will may be revoked by one of the testators without notice to the other testator. The case ofDufour v. Pereira, 1 Dick. 419, decided in 1769, is one of the earliest cases sustaining the validity of a joint will and pioneering the policy of the law as applied to such instruments. It was there announced by the court that although a joint and reciprocal will could be revoked by the action of both testators acting jointly, or by either acting separately by giving notice to the other testator of his revocation or intention to revoke such will, yet a disposition of his property different from the devolution thereof made by the joint will could not be made by one testator secretly and without the knowledge of the other testator. Frazier v.Patterson, supra, is one of the leading cases in this State on the subject of joint wills. The case of Dufour v. Pereira,supra, was there reviewed by this court, and the doctrine announced on the subject of notice and revocation in the Dufourcase was approved by this court. Buehrle v. Buehrle, 291 Ill. 589, involved the question of mutual wills made pursuant to a contract. The court there held that the terms of the contract made the mutual wills of the parties their joint will, irrevocable *Page 545 by either without notice to the other, and citedFrazier v. Patterson in support of that holding. The rule announced in the Dufour case has received recognition and approval in Carmichael v. Carmichael, 72 Mich. 76, 40 N.W. 176,Allen v. Boomer, 86 Wis. 364, and Edson v.Parsons, 155 N.Y. 555.
The rule of law that a joint will is irrevocable without notice is particularly applicable in those instances where the joint will is that of the husband and wife. On account of the relationship of mutual trust and confidence imposed by such status, it may be presumed that the provisions made are induced by the mutual love, respect for and faith which the parties have in each other. Neither should be permitted to violate such fiduciary relation by publishing a separate will subsequent to the execution of a joint will by the parties without full disclosure of such fact by the one making such separate will to the other testator of the joint will.
We are of the opinion that the rule supported by reason and sound, equitable principles and more likely to prevent fraud is, that a joint will may be revocable during the joint lives of the makers upon giving notice by one testator to the other, but such will becomes irrevocable after the death of one of the makers if the survivor accepts any of the benefits made for him by such will. (Frazier v. Patterson, supra; Thompson on Wills, sec. 28; 1 Redfield on Wills, 182, 183; Schouler on Wills, sec. 455; 40 Cyc. 2119; 30 Am. Eng. Ency. of Law, (2d ed.) 621.) If the joint will is made pursuant to the terms of a contract written into the will or a contract made dehors the will, whether such joint will may be revoked even upon notice to the other testator would depend upon the circumstances. If the contract is for a legal consideration and the one testator has fulfilled his part of it, generally speaking such joint will could not be revoked by one testator without the consent of the other. *Page 546
The appellants cite Klussman v. Wessling, 238 Ill. 568, andRice v. Winchell, 285 id. 36, as authority for their position that no notice is required in this State to revoke a joint will and that either testator may revoke a joint will at his pleasure. The wills involved in those cases are separate, mutual wills. We have heretofore pointed out the distinction between mutual wills and joint wills. In the case of mutual wills the wills are not, generally, of themselves sufficient evidence of a contract, and proof of the contract and the consideration to support it must be made aliunde the wills, although in Edson v. Parsons, supra, cited by the appellants, the court said that where the instrument is one jointly executed by the husband and wife, while in itself not conclusive evidence of a contract, it is a very material circumstance to be considered as to whether the joint will is made in pursuance of a contract.
In the case at bar we do not have to depend alone upon the rule announced in the Frazier case, supra, limiting the right of revocation to the mutual consent of the testators or requiring notice of revocation to the other party by the party revoking or attempting to revoke. The great weight of authority is, that where the joint will is made as the fruition of a contract between the testators it may not be revoked by either testator, with or Without notice, without the consent of the other testator. The joint will at bar was executed by the parties thereto as a result of a contract theretofore agreed upon by them, and such contract written into the will is clearly apparent from the four corners of the will.
The will, amongst other matters, states as follows: "The surviving testator of this covenant, either Stephen S. Curry or Nora Fowler Curry, bequeaths by this will," etc. The sixth clause states, "It is further covenanted," etc. The word "covenant" is defined as "an agreement, convention or promise of two or more parties, by deed in writing signed, sealed and delivered, by which either of the *Page 547 parties pledges himself to the other that something is either done or shall be done or stipulates for the truth of certain facts." (Black's Law Dict. (3d ed.) p. 469; DeGrasse v. VeronaMining Co. 185 Mich. 514, 152 N.W. 242; Commonwealth v.Robinson, 1 Watts, (Pa.) 158; Kent v. Edmondston, 49 N.C. 505.) A covenant, in common parlance, is a written agreement, whether under seal or not. (15 Corpus Juris, 1209; 7 R. C. L. 1084.) In the case at bar the instrument is under seal. This imports a consideration both at law and in equity.
The mutual promises of the husband and wife are sufficient consideration to support the agreement to make a joint will with reciprocal provisions. (Frazier v. Patterson, supra;Wright v. Wright, 215 Ky. 394, 285 S.W. 188; Brown v. Webster,90 Neb. 591, 134 N.W. 185.) The fact that the joint will was produced for probate by the widow establishes prima facie that the instrument as a contract was delivered.
The contention is made by the appellants that there is no proof that notice was not given the wife by the husband of the making of the will of date August 10, 1931. The widow was sworn and offered as a witness by the appellees. Objections were made and sustained as to her competency to testify to any matters occurring during the existence of the marriage relation. The attorney preparing the will of August 10, 1931, testified that the testator said nothing to him on the subject of the wife having any knowledge of the preparation of such later will. The burden was on the appellants to show the giving of notice on the part of the husband in his lifetime of the supposed revocation of the will by him if the appellants relied upon that defense. The proof was in the nature of a negative. Such proof was not in the control of the appellees. If there was such proof it was within the control of the appellants. The law in that situation presumes that the fact does not exist unless the affirmative evidence of such fact is produced. *Page 548 Kettles v. People, 221 Ill. 221; Great Western Railroad Co. v.Bacon, 30 id. 347.
The contract between the parties was not within the Statute of Frauds, as such contract was deducible from the written joint will signed by the parties. Frazier v. Patterson, supra;Keith v. Miller, 174 Ill. 64; Brown v. Webster, supra.
The appellants stress the case of Peoria Humane Society v.McMurtrie, 229 Ill. 519, as holding that a joint will may be revoked by either maker without notice to the other at any time before death. The court did in that case sustain the revocation of the joint will, with mutual or reciprocal provisions, then before the court, but what the court there said was limited to that particular joint will. The will there under consideration provided that it was to be operative as a will only on condition that neither testator should otherwise dispose of his property by his individual will. It was clear that the right was expressly reserved by each maker of the will to make testamentary disposition of his property thereafter as he saw fit, by his separate will. One of such testators did, pursuant to such right reserved, make his individual will. This court held he had such power in accordance with the privilege retained by him under the joint will. No right is reserved or attempted to be reserved on the part of either testator in the joint will at bar to make any testamentary disposal of his property in the future different from the provisions of the joint will. The McMurtrie case is not here in point and is not in conflict with other decisions of this court upon the subject of joint wills.
No issue was made in the court below by the pleadings as to a misjoinder of parties complainant. All of the beneficiaries under each will were necessary parties to the record. If there is a misjoinder, the objection as to misjoinder of two of the beneficiaries with the widow as parties complainant, being made for the first time in this court, *Page 549 comes too late. It should have been raised by demurrer or answer in the trial court. Ohio Oil Co. v. Daughetee, 240 Ill. 361.
It is urged that the decree of the trial court should not have restrained Butterworth, as executor of the later will, from administering upon the estate under that will. The executor answered the bills but did not prosecute any appeal from the decree. Two of the beneficiaries under the later will alone have appealed. They were not injured by such portion of the decree. The alleged error was not personal as to them. Moreover, this point was not urged or argued in the original brief filed herein by the appellants but was raised for the first time on the answer to the petition for rehearing. Such contention does not go to the merits of the case and is therefore, under the decisions of this court, considered as waived.
There remains the question as to whether the complainants are limited to an action at law for damages. Where a testator of a valid joint will undertakes to revoke the same by a subsequent will or breaches his contract, the same remedies exist in favor of the injured parties as in other cases of breach of contract to make a will, namely, an action on the contract or a remedy in equity against the parties taking title, by reason of the failure of the promisor to execute the will he contracted to make. (Gardner on Wills, pp. 87, 89.) Where one of the parties to a joint will executed in pursuance of a contract, without the knowledge or consent of the other party to such will undertakes secretly to revoke the will or dispose of his property contrary to the provisions of the will and such subsequent will is probated, the property in the hands of the taker with notice of the first will, or in the hands of volunteers, is impressed with a trust in favor of the beneficiaries under the joint will and such trust may be enforced by a proceeding in equity. Wright v. Wright, supra;Stewart v. Todd, 190 Iowa, 283, 173 N.W. 619; Brown v. Webster, *Page 550 supra; Walker v. Yarbrough, 200 Ala. 458, 76 So. 390; 50 Cyc. 2117; 1 Alexander on Wills, sec. 146, pp. 168, 169; Remsen on Preparation and Contest of Wills, sec. 6, pp. 25, 26.
We have considered all of the several charges urged against the correctness of the decree and find no reversible error in the record. The appellee widow has abided by the terms of the joint will made by her and her husband. It is just that such will should be sustained and its provisions enforced.
The cause was properly disposed of by the trial court, and its decree is accordingly affirmed.
Decree affirmed.