Mutual or reciprocal wills are those in which two or more persons make reciprocal testamentary provisions in favor of each other, whether they unite in one, or each executes a separate, instrument. Such wills, if made in pursuance of a contract to that end, may be revoked, but the same remedies exist in favor of the injured party 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, sec. 21, pp. 87, 89). Alexander, in his Commentaries on the Law of Wills, (vol. 1, sec. 85, pp. 96, 97,) on the same subject, said: "The general rule seems to be, although not undisputed, that if two persons execute wills at the same time, either in one or two instruments, making reciprocal dispositions in favor of each other, the mere execution of such wills does not impose such a legal obligation as will prevent revocation, without notice, by either during their joint lives. The case is different, however, where the mutual or reciprocal wills are the result of a contract based upon a valid consideration, where there has *Page 551 been a joining of property interests for the purpose of making a testamentary disposition of the same, or where, after the death of one, the survivor has accepted benefits under the will of the other which was executed pursuant to an agreement. In such cases, where all the facts are fully established, equity will interpose to prevent fraud. This, however, can be accomplished only through a court of equity, the probate court having no jurisdiction."
A probate court may not refuse to admit to record the subsequent will of one of the makers of mutual or reciprocal wills on the ground that the mutual wills were executed pursuant to an agreement and that the subsequent individual will violated the terms of that agreement. "The jurisdiction to determine the existence of and to enforce a contract to make a will," says Alexander in his Commentaries on the Law of Wills, (vol. 1, sec. 84, p. 96,) "is exclusively within a court of equity, and a court of probate can only view the instrument presented in the light of a will and not in the light of an agreement. Even though there may have been a valid contract to make a will, no action will lie to prevent the probate of a will different from that agreed upon, because it is the agreement which is enforced in equity by declaring the executor or devisees under such will to be trustees for the performance of the contract and therefore it is necessary that such will be admitted to probate." If made pursuant to a contract between testators, a mutual or reciprocal will stands on the same footing as any other will executed in obedience to a contract, that is, the will itself may be revoked, but the contract in pursuance of which the will was made may be enforced in an action at law for damages, or in a suit in equity to have those who take the legal title after the death of the promisor held as trustees. In some cases which do not distinguish clearly between the will itself and the right of action on the contract in performance of which the will was made, it is asserted that, under certain conditions, the *Page 552 will becomes irrevocable in equity. An examination of these cases shows that the question involved was the validity of the contract and the power of law or equity to enforce it, and not the revocable or irrevocable character of the particular will. The statement that the will becomes or is irrevocable results from confusing the will with the contract. 1 Page on Wills, (2d ed.) sec. 88, pp. 153, 154; Alexander, Commentaries on the Law of Wills, vol. 1, sec. 84, p. 96; Sumner v. Crane,155 Mass. 483.
The general rule is that the execution of a joint will is not of itself sufficient evidence of the existence of a contract to bequeath or devise property so as to make the contract enforceable in equity. (Menke v. Duwe, 117 Kan. 207; Rastetter v. Hoenninger, 214 N.Y. 66; Cawley's Estate, 136 Pa. 628;Rhodes' Estate, 277 Pa. 450; Buchanan v.Anderson, 70 S.C. 454; Wyche v. Clapp, 43 Tex. 543). An agreement to make mutual wills is not established by the fact that two persons have made reciprocal testamentary dispositions in favor of each other, where the language of the wills discloses nothing to the effect that the instruments are the result of such a contract. (Alexander, Commentaries on the Law of Wills, Vol. 1, sec. 85, p. 97). To obtain relief in equity in such a situation, the contract must be clearly and definitely established. (Gardner on Wills, sec. 21, p. 89;Mullen v. Johnson, 157 Ala. 262; Wanger v. Marr, 257 Mo. 482;Edson v. Parsons, 155 N.Y. 555; Wilson v. Gordon, 73 S.C. 155;Dicks v. Cassels, 100 S.C. 341). In Edson v. Parsons, supra, the Court of Appeals, speaking of agreements concerning testamentary dispositions of property, said at page 568: "In this class of cases the ordinary rules, which govern in actions to compel the specific performance of contracts and which furnish reasonable safeguards against fraud, should be rigidly applied. These rules require the contract to be certain and definite in all its parts; that it be mutual and founded upon an adequate consideration *Page 553 and that it be established by the clearest and most convincing evidence." The court, after a reference not material to this inquiry, continued: "A general maxim, which equity recognizes, is that a testator's will is ambulatory until his death. It is a disposition of property, which neither can, nor is supposed to, take effect until after death. * * * To attribute to a will the quality of irrevocability demands the most indisputable evidence of the agreement, which is relied upon to change its ambulatory nature, and that presumptions will not, and should not, take the place of proof." In Page on Wills, (2d ed.) vol. 1, sec. 59, p. 105,) the author says: "Revocability is an essential element of a will; and follows from the idea that the will passes no present interest in the property devised or bequeathed. Such property still belongs to the original owner. He has parted with no interest in it by making the will. He can still sell the property or exchange it, or pledge it or give it away. He may revoke the will already made and make a new will, or die intestate, as he pleases. So essential a feature of a will is revocability that the insertion, in an instrument which is clearly a will, of a clause providing. that it is not to be revoked has no effect whatever in preventing revocation. This quality of the will is what is usually meant when it is said that the will is ambulatory."
The majority of the court declares that "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." To support this statement, references are made to the word "covenant" which appears twice in the instrument. These references, however, ignore the connection in which the word "covenant" is used. In both instances, its use, taken in conjunction with the other words of the sentence, shows, not a contractual relationship, but a provision purely testamentary and necessarily ambulatory in character. *Page 554
It is further asserted in the opinion of the majority that because the instrument in question is under seal, it "imports a consideration both at law and in equity," and that "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 instrument under re-view, like many other wills, has seals affixed to the signatures of the makers. The testator and testatrix by the opening sentence of the instrument make and publish it as their last will and testament; and the attesting witnesses certify that the instrument was "Signed, sealed, published and declared" by the makers "as and for their joint will." Manifestly the presence of the seals does not transform the instrument into a contract. Nor does its presentation to and proof in the probate court even tend to give it a contractual aspect or to infuse into it any effect other than that which results from a testamentary disposition of property. To deprive a joint and mutual or reciprocal will executed by a husband and his wife of its ambulatory character and to transform it into a contract, it is only necessary, according to the decision of the majority, to employ a term familiar in the law of contracts; to affix seals to the signatures of the makers and to have the survivor produce the instrument for probate and record. No authority is cited to sustain this position and it is respectfully submitted that it is not maintainable.
The evidence in this case merely shows that Curry and his wife desired to make a joint will by which each would leave his or her property to the survivor and upon the latter's death, the property of both would go to the children of the wife. No contractual relationship, oral or written, or consequent duty or obligation to execute such an instrument was shown to exist between its makers or between Curry and the children of his wife by her former marriage. There is no proof that the instrument was based upon a consideration or that it resulted from any accrued or existing *Page 555 right of either testator against the other. No contract to make reciprocal wills is disclosed and no reference to such a contract, either oral or written, appears. The evidence fails to show a single obstacle to the revocation of the joint instrument by Curry on August 10, 1931. The instrument remained ambulatory, he had received no property under or by virtue of it, and he was not embarrassed by any contractual duty or obligation. Under these circumstances, he had the power to revoke the joint instrument to the extent that it concerned him; and by his death, the survivorship of his wife and the consequent impossibility that he take under the instrument, his subsequent individual will, proved and admitted to record, necessarily governs exclusively the disposition of his property.
The majority of the court declares that, in its opinion, 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." To support this doctrine reliance is placed upon Frazier v. Patterson, 243 Ill. 80. In that case a husband and his wife executed a joint will making reciprocal dispositions of property and devising the remainder to their grandchildren. The husband died, and his widow proved the instrument as his will, accepted its provisions and took possession of the land the husband had devised to her. After his death, the widow executed another will by which she attempted to revoke the joint instrument and to make a different disposition of her estate. Upon a bill filed by remaindermen for a partition of the real estate in accordance with the provisions of the joint will, the relief sought was granted. The widow had received the benefit of that will, and the well established rule that equity will not allow one who has received an advantage under an instrument to refuse performance on his part was enforced. *Page 556
The opinion of the majority is also based upon the English case of Dufour v. Pereira, 1 Dickens, 419, decided in 1769. The joint will in that case was the result of a contract between a husband and his wife. The husband died and the widow proved the will and accepted the legacies bequeathed to her. She afterwards made another will and the question was whether she could thereby rescind the contract with her husband. By his death, the contract on his part had been performed and the court would not permit her to violate it. Lord Chancellor Camden declared that the widow "having proved the mutual will, after her husband's death, and having possessed all his personal estate, and enjoyed the interest thereof during her life, hath by those acts bound her assets to make good all her bequests in the said mutual will."
The third case invoked by the majority to sustain the doctrine that the revocation of a joint will by one maker requires notice to the other is Buehrle v. Buehrle, 291 Ill. 589. Mutual wills, it was disclosed, had been executed pursuant to a contract under seal, and a bill for an accounting of assets of the estate of the deceased testator was filed. No question of the revocation of a joint or other type of will arose or was decided in the case. It appears therefore that the question of giving notice of revocation by one of the makers of a joint will to the other while the instrument retained its ambulatory character was not involved in any of the cases relied upon, and that, when the question actually decided in them is considered, they are of no avail to support the rule concerning notice announced in the opinion of the majority.
The statement is made in the opinion of the majority that "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 *Page 557 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." No authority is cited for this statement. Joint and mutual or reciprocal wills, especially when executed by husbands and wives, usually are based upon mutual trust and confidence, but that fact alone neither makes the instrument a contract nor destroys its ambulatory character.
The situation in the case at bar differs essentially from those in the cases upon which the majority relies. Curry received no benefit through or by means of the joint instrument and he did not, by revoking it, deprive his wife of any right, interest or privilege. The dispositions by the terms of the mutual instrument were ambulatory and notice to the wife in her husband's lifetime of his revocation of that instrument was unnecessary. This result follows from the decision inPeoria Humane Society v. McMurtrie, 229 Ill. 519. In that case a mother and her son executed a joint instrument making reciprocal testamentary dispositions of property. The remainder of the instrument provided that if both makers should die or, after their deaths, if no individual will had been executed, the property of both should be treated as one and the same and be disposed of as directed by subsequent provisions of the instrument. The son thereafter successively married, made his individual will and died. His new or last will was proved and his estate was settled. The mother survived the son about five years, and an administrator of her estate was appointed. Subsequently the joint instrument was presented to the probate court as the last will of the mother. Probate was refused both by that court and by the circuit court on appeal. Upon a further appeal, this court held that the makers intended that the remainder of the instrument *Page 558 should take effect as the will of both or neither and affirmed the judgment of the circuit court. Mr. Justice Cartwright, in delivering the opinion of the court, said: "A joint, mutual or reciprocal will, like any other, is ambulatory during the lives of the makers, and it may be revoked by either at any time before his death. The right of revocation cannot be doubted, at least as to either maker who has taken no benefit or advantage under the will. And that was the case here. So far as the instrument was the will of Harry G. Rouse it was revoked by his subsequent marriage, and he also made an individual will, which could have operated as a revocation. * * * The whole property and estate of that maker who should first die was given to the other, to be used as the survivor might see fit. That provision of the will was mutual or reciprocal, and the will having been revoked by Harry G. Rouse, his estate did not pass, by virtue of it, to his mother, Mary W. Rouse." To sustain the son's right to revoke the joint and mutual or reciprocal portion of the will, the court did not have recourse to the joint disposition of the estates of the testators which followed and which contained the provision respecting the making of an individual will. The son had taken no benefit or advantage under the will and his right of revocation was based upon the applicable rule of law. The case at bar presents a similar situation. Curry, exercising a power he possessed, revoked the joint instrument before any rights accrued under it. Nora Fowler Curry, the other maker of that instrument, survives him. By his death his individual will became effective; and there is no basis upon which the relief sought by the appellees may be granted.
In my opinion, the decree of the circuit court should be reversed and the cause remanded to that court with directions to dismiss the bill and the supplemental bill for the want of equity. *Page 559