The trial court on motion for summary judgment held that the wills of Joseph F. Meyer, Jr. and his wife, Alpha Genevieve Meyer, were mutual wills based upon an oral contract. Both sides had filed motions for summary judgment. The motion of the executors of the Joseph F. Meyer, Jr., estate, Frank K. Meyer and the guardian and guardian ad litem of the estate of George B. Meyer, non compos mentis, was overruled. The motion of Texas National Bank of Commerce of Houston, administrator of the estate of Alpha Genevieve Meyer, was granted and judgment rendered against the Joseph F. Meyer, Jr. estate, Frank Meyer and George B. Meyer, impressing a trust upon an undivided two-thirds interest of the estate of Joseph F. Meyer, Jr. in favor of the heirs at law of Alpha Genevieve Meyer. The Court of Civil Appeals affirmed. 412 S.W.2d 957.
Being of the tentative opinion that a recovery upon the oral agreement was precluded by the statute of frauds, Article 3995, subd. 4,
The facts pertinent to our decision may be briefly stated as follows:
Joseph F. Meyer, Jr. and Alpha Genevieve Meyer were husband and wife, having married on January 10, 1909. They had no natural born or adopted children. On January 10, 1944, Alpha Genevieve Meyer executed a holographic will in which she appointed her husband independent executor of her estate and provided that after all just debts had been paid, her "entire estate of every kind and character, real, personal and mixed and wheresoever situated," should go to her husband in fee simple. The will contained no provision for the vesting of the property in the event Joseph F. Meyer, Jr. should predecease his wife.
Some six months later, on July 21, 1944, Joseph F. Meyer, Jr. executed a will before two attesting witnesses in which he designated his wife to serve as independent executrix of his estate and stated that it was his will that "all of the property, both real, personal and mixed, that I may die seized and possessed of, after payment of my just debts, together with all expenses incident to the probating of this will, shall pass to and vest in fee simple in my beloved wife Alpha G. Meyer, * * *." This will like that of Alpha Meyer contained no provision relating to the testator's property in the event his wife should predecease him.
In neither of the 1944 wills executed by Mr. and Mrs. Meyer was there a written provision or statement to the effect that said wills had been executed in pursuance of an agreement between them. The estates of both consisted primarily of real property, and there is no contention here that Article 3995, subd. 4, is not applicable.
On June 15, 1962, Alpha Meyer died and Texas National Bank of Commerce of Houston is now serving as administrator of her estate.
Despite the circumstance that the 1944 wills of Mr. and Mrs. Meyer were executed upon different dates and neither will alluded to or mentioned a contractual arrangement as being extant between them, we shall assume for the purposes of this opinion that the wills were executed in pursuance of an oral agreement. This assumption, however, should not be construed as an indication that in our opinion the existence of a contract between Mr. and Mrs. Meyer was established as a matter of law and that there was no jury question involved in the determination of such issue. Although some discussion of the summary judgment proofs is entailed in stating the basis of our holding, it is unnecessary for us to pass upon the existence of a contract, vel non.
The controlling question in the case comes down to this: Is the present case distinguishable upon the facts from our recent holding in Kirk v. Beard? We hold that it is. From the report of that case, 162 Tex. 144, 345 S.W.2d 267 (1961), it appeared that two brothers, J. E. Sexton and W. H. Sexton, "orally agreed that they would make mutual and reciprocal wills. [They] executed identical wills devising each to the other his undivided half interest in all lands owned by them in Johnson, Hill and Somervell Counties, together with all personal property situated thereon; and leaving to the nieces (plaintiffs in the case), share and share alike, the remainder of his property, both real and personal." W. H. Sexton died on September 30, 1952. His will was probated and his one-half interest in the lands passed to his brother in accordance with the terms of the will. Thereafter, J. E. Sexton attempted to make a different disposition of the property than that contained in the wills of November 23, 1948, and litigation resulted shortly after J. E. Sexton died.
In Kirk v. Beard, property passed from one of the contracting parties to the other, and it was held that it would be a fraud to permit the one who had received property from the other party to thereafter repudiate the contract. An intervention by equity was hence deemed supportable.
In the present case, no property passed from Alpha Genevieve Meyer to her husband under her will allegedly executed in pursuance of a contract. If we assume an oral agreement to execute mutual wills, does the making of a will in accordance with the agreement and keeping it potentially operative by not revoking it constitute such performance as will render the oral contract enforceable in equity notwithstanding the statute of frauds? To justify such intervention and the setting aside of a legally enacted statute, it is settled that there must be something more than a mere wrong or breach of contract. Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216 (1916); Robertson v. Melton, 131 Tex. 325, 115 S.W.2d 624 (1938).
The parties have not cited nor does our research disclose a case by this court which controls the present situation.
In Turnipseed v. Sirrine, 57 S.C. 559, 35 S.E. 757 (1900), it appears that Susan Turnipseed and her niece, Viola Neblett, entered into an oral agreement to make mutual wills, leaving the bulk of the property of the one to the other. Susan Turnipseed made a will in accordance with the agreement, but Viola Neblett made a different disposition of her property and then predeceased Susan Turnipseed who sued Viola Neblett's executor, George W. Sirrine, to enforce the oral agreement. She prevailed despite the statute of frauds upon the theory of partial performance.
The Austin Court of Civil Appeals, in Larrabee v. Porter, 166 S.W. 395 (1914, writ denied), referred to and discussed Brown v. Webster, but the situation in Larrabee was similar to that of Kirk v. Beard, 162 Tex. 144, 345 S.W.2d 267 (1961), in that the plaintiffs were seeking to enforce an oral agreement to make mutual wills entered into between Mr. and Mrs. G. W. Larrabee. Mutual wills were made, and Mrs. Larrabee died without revoking her will. Thereafter, Mr. Larrabee remarried and made a subsequent and conflicting will. The court said:
The Supreme Court of Washington, in Fischer v. Soames (In re Fischer's Estate), 196 Wn. 41, 81 P.2d 836 (1938), enforced a parol agreement to make mutual wills at the suit of the survivor against the estate of his deceased wife. The greater part of the opinion is taken up with a discussion of the sufficiency of the evidence to support a finding that an oral agreement to make mutual wills had been made. The discussion of the statute of frauds is extremely brief and contains no citation of supporting authorities. The court simply said:
In re Fischer's Estate should be considered in the light of In re Edwall's Estate, 75 Wn. 391, 134 P. 1041 (1913), McClanahan v. McClanahan, 77 Wn. 138, 137 P. 479, Ann.Cas.1915A, 461 (1913), and Allen v. Dillard, 15 Wn.2d 35, 129 P.2d 813 (1942), as these cases clearly indicate that something more than the mere execution of a will in pursuance of an oral agreement is required to take the case out of the statute on the theory of total or partial performance.
We regard the case of Stump v. Harold, 125 W.Va. 254, 23 S.E.2d 656 (1942), as being clearly distinguishable from the situation now before us. In the Stump case,
The majority of the American decisions seem to support a rule contrary to that stated in Turnipseed v. Sirrine and cases of similar import.
In Gould v. Mansfield, 103 Mass. 408, 4 Am.Rep. 573 (1869), the plaintiff sued to compel Nancy Gould's executors to deliver the testatrix's estate to the plaintiff on the theory that she and Nancy Gould had entered into an oral agreement under which each agreed to make a will leaving all her real and personal estate to the other. The plaintiff alleged both she and Nancy Gould had made such wills but thereafter Nancy changed her will and died leaving her property to others. The statute of frauds was set up as a defense and partial performance relied upon to defeat such defense. The Supreme Judicial Court of Massachusetts said:
In Canada v. Ihmsen, 33 Wyo. 439, 240 P. 927, 43 A.L.R. 1010 (1952), the Supreme Court of Wyoming considered a similar situation to that present in Gould v. Mansfield. The plaintiff, Canada, sued Ihmsen, the administrator with will annexed of the estate of Mrs. Wiseman M. Hill, deceased, and Samuel W. Scott. He alleged that he and Mrs. Hill owned adjoining lots in Laramie, Wyoming, and entered into an oral agreement under which each agreed to make a will, leaving at death, the property so owned by them respectively to the other; that such wills were executed, and thereafter Mrs. Hill, without notice to him, revoked such Will and devised her property to Samuel W. Scott. Canada sought enforcement of the oral contract. The trial court found that the oral agreement had been made but denied plaintiff's requested relief because of the statute of frauds. The Supreme Court affirmed. That court pointed out that there were some decisions holding that a contract such as that alleged by Canada could not be enforced except that the parties were related to each other, but did not base its decision upon this circumstance. The court among other holdings decided that the statute of frauds precluded a recovery for plaintiff. It was pointed out that most of the cases cited by plaintiff were cases "where one of the parties making a mutual will died, leaving his will in force and effect, and where the survivor who received the benefits under the will of the party deceased attempted to revoke his will to the detriment of third parties who were benefitted under both wills.", i. e. a Kirk v. Beard situation. The court placed considerable emphasis upon the circumstance that Canada survived Mrs. Hill and that the only performance claimed under the oral agreement was the execution of mutual wills. The court said:
The court then quoted from the opinions in In re Edwall, 75 Wn. 391, 134 P. 1041 (1913), and Gooding v. Brown, 35 Hun. 148 (N.Y.Sup.Ct.1885), as supporting its decision on the point. McClanahan v. McClanahan, 77 Wn. 138, 137 P. 479, Ann. Cas.1915A, 461 (1913), is also cited, and the apparently contrary cases of Brown v. Webster, 90 Neb. 591, 134 N.W. 185, 37 L.R.A., N.S. 1196 (1912), and Woods v. Dunn, 81 Or. 457, 159 P. 1158 (1916), are discussed.
The opinion in the Canada case contains a rather detailed consideration of the authorities on the point decided between 1869 (Gould v. Mansfield) and 1925, and we need not further dwell upon the cases discussed in that opinion.
In 1966, the Supreme Court of Wisconsin considered the case of In re Rogers' Estate (Chandler v. Estate of Harry A. Rogers), 30 Wis.2d 284, 140 N.W.2d 273. The facts in the case were stipulated. Annie Rogers died in 1961 and devised her one-half interest in two parcels of land to her husband, Harry A. Rogers. In 1962, Rogers and Bertha Chandler, the owner of the remaining one-half interest (his wife's sister), orally agreed that they would execute mutual wills each devising his or her interest in the lots to the other. Such wills were executed but no mention of an agreement was made therein. Rogers afterwards changed his will and left the property to a third person. Bertha Chandler sued on the oral agreement but recovery was denied by the trial court. In affirming on the ground that a sufficient performance to remove the bar of the statute of frauds, had not been shown the court said:
Respondent argues that Mr. Meyer's action in executing the 1962 will without notice caused his wife to suffer emotional distress when she gained knowledge of the revoking will upon the death of her husband. She had executed a will and codicil prior to 1944 in which she had left the bulk of her property to her relatives and had recited that she was not leaving anything to her husband's relatives as they had been well provided for by the estate of Joseph F. Meyer, Sr., her husband's father. It may be inferred that she wanted none of her property to go to her husband's brothers. After Mr. Meyer's death, Mrs. Meyer held some conversations with a lawyer but perhaps because of illness and emotional factors, she never managed to execute a new will. However, she evidently knew that if her husband predeceased her, she would have to execute a new will unless she wished the statute of descent and distribution to control as her 1944 will contained no bequest or devise over in case Mr. Meyer were not living at the time of her death.
The petitioners point out that the 1944 will was not changed until 1962 when both Mr. and Mrs. Meyer were advanced in years; that a goodly portion of Mrs. Meyer's property had been given to her by her husband
However one may regard the merits of these "equity" arguments urged by the contending parties, the premises advanced do not supply a sound foundation upon which to base a conclusion or rule of law suitable for the devolution of property. Emotional consequences attendant upon the breach of a contract will obviously vary from person to person, depending upon numerous factors, such as natural disposition, condition of health and the like. Then there is the circumstance that the recollection of witnesses as to past conversations with deceased persons regarding testamentary intentions may be most unreliable. Generally, there is no way by which such testimony may be contradicted for as the usual thing such conversations do not take place in the presence of third persons, and hidden motives of witnesses are often difficult to bring to light. It is not asserted that those making affidavits in support of respondent's motion for summary judgment were prompted by improper motives, but this opinion is not being written alone for this particular case, and in discussing the action of some jurisdictions in providing that a contract to make a will must be in writing, an important evidentiary factor is mentioned in 1 Bowe-Parker: Page on Wills, § 10.10:
While Texas and many other states have not adopted a statute which proscribes all agreements to make wills which are not in writing, yet the tendency has not been to weaken or emasculate the statute of frauds by recognizing numerous exceptions relating to performance of an oral agreement. In this case, we have the making of a will and the non-revocation thereof by Mrs. Meyer and nothing more. This is generally considered insufficient and the performance exception restricted to the situations similar to that disclosed in Kirk v. Beard. For example, in Hagen v. Schluchter, 126 N.W.2d 899 (N.D.1964), the court said:
Similarly, in American Jurisprudence, it is said:
Language practically identical with the above is found in Canada v. Ihmsen, 33 Wyo. 439, 240 P. 927, 43 A.L.R. 1010 (1925), followed by the citation of some thirteen decided cases including Larrabee v. Porter, 166 S.W. 395 (Tex.Civ.App.1914, writ denied), and Moore v. Moore, 198 S.W. 659 (Tex.Civ.App.1917, writ denied).
The public policy of this state, as declared in the leading case of Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216 (1921), is in accord with the above and it was clearly stated that, "[T]o warrant equity's `breaking through the statute' to enforce such a parol contract, the case must be such that the nonenforcement of the contract—or the enforcement of the statute—would, itself, plainly amount to a fraud." As heretofore pointed out and demonstrated by the Hooks v. Bridgewater opinion, the mere breach of a contract does not amount to the species of fraud which will justify the disregarding of the statute.
For the reasons above stated, the judgments of the courts below are reversed and judgment here rendered granting petitioners' motion for summary judgment, Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958), and decreeing that respondent take nothing.
There is a possible and perhaps valid distinction pointed out by later decisions which may be drawn between the Turnipseed decision and cases apparently holding contrary thereto, such distinction being based upon a difference in the wording of the various sections of the statute of frauds as adopted by the several states. In Canada v. Ihmsen, 33 Wyo. 439, 240 P. 927, 43 A.L.R. 1010 (1925), the court in discussing the Turnipseed case said, "In the South Carolina case no real estate was involved, and it is not, accordingly, in point." See also, Hoff v. Armbruster, 125 Colo. 198, 242 P.2d 604 (1952), Wellington v. Apthorp, 145 Mass. 69, 13 N.E. 10 (1887), and Note, Joint or Mutual Wills, 61 Harv. L.Rev. 675, l. c. 680.