Moats v. Schoch & Berry

Orth, C. J., delivered the opinion of the Court. The issue to be decided on this appeal is whether the Circuit Court for Charles County was correct in ordering on 21 May 1974 that a writing executed 19 November 1957 by Lillie W. Pumphrey, sometimes known as Lily W. Pumphrey, be admitted to probate as her last will and testament. We find that the court was correct and affirm its judgment. I The case comes to us on appeal by Hilda Mae Moats and Frances Geneva Bell (daughters) from the order issued 21 May 1974 by the Circuit Court for Charles County.

It reached that court on appeal from an order issued 5 October 1973 by the Orphans’ Court for Charles County whereby the Court admitted the 1957 writing to probate as the last will and testament of Lillie and appointed Jacqueline Schoch and Mary Ann Berry (granddaughters) the personal representatives of the estate. 1 The facts are not in dispute. ⁴⁵⁵ On 22 May 1942 William B. Pumphrey and Lily W. Pumphrey executed a writing styled their “Joint and Several WILL.” 2 William died 1 November 1949. Lily filed for ⁴⁵⁶ letters of administration and offered the 1942 will for probate. It was admitted to probate by the Orphans’ Court for Charles County in June of 1950. There is indication that it was subsequently probated also in an ancillary proceeding in the District of Columbia.

What property passed under the will and to whom are not reflected in the record before us. On 19 November 1957, Lily, under the name “Lillie W. Pumphrey”, executed another writing entitled her “LAST WILL AND TESTAMENT” by which she revoked “all other Wills by me heretofore made.” 3 Lily W. Pumphrey died on 1 September 1973. On 6 September, granddaughters filed a “Petition for Probate” with the Register of Wills for Charles County asking that they be granted letters of administration and that the 1957 will be admitted to judicial probate. 4 On 28 September daughters filed opposition to the appointment of granddaughters as personal representatives. Among the reasons stated were that by the joint and mutual will of 1942 and “the contractual obligations arising thereunder”, the testatrix’s property rightfully belonged to her three living children and that any will subsequently executed was “totally invalid.” They suggested that Thomas C. Carrico be appointed personal representative.

The minutes of the Orphans’ Court reflect that a special session was held on 5 October to consider the petition for judicial probate and the opposition to the appointment of appellees as personal ⁴⁵⁷ representatives. The court ruled to proceed on the petition to appoint appellees and did so. The minutes read: “No testimony was given to prove that Mrs. Pumphrey profited from her husband’s death. She paid all his bills according to Court records and proceeded to accumulate an estate which the Court feels she could rightfully dispose of.

For that reason we accept the 1957 will as her Last Will and Testament and we appoint the two legatees as personal representatives in accordance with the Maryland law [Estates & Trust Art. § 5-104 (3)].” The court issued an order dated 5 October appointing granddaughters personal representatives of the estate and admitting the 1957 writing to probate as the will of the decedent. On 17 October daughters notéd an appeal from the order of 5 October to the Circuit Court for Charles County. See note 1 supra. See also Pattison v. Firor, 146 Md. 243 ; Wright v. Nugent, Personal Representative, 23 Md. App. 337 .

The case was docketed in that court as Law No. 7604. On 15 November daughters moved to consolidate the case with a case filed in that court entitled “Hilda Mae Moats, et al. v. The Estate of Lily W. Pumphrey, deceased, et ah”, Equity No. 3343. The motion averred that Equity No. 3343 was “concerned with enforcement of certain provisions of the said 1942 will by means of equitable relief of specific performance and also involves construction of the terms of said will, as well as requests for other equitable relief, all pertaining to the issues in controversy from the handling of the Estate of Lily W. Pumphrey, deceased.” The motion also prayed that the hearing on Law No. 7604 be continued until Equity No. 3343 came on for trial. The motion was opposed by granddaughters and denied by order of the court issued 7 December. 5 On 7 December the appeal from the Orphans’ ⁴⁵⁸ Court was heard de novo and on 21 May 1974 the court gave judgment according to its determination of the equity of the matter.

Courts Art. § 12-502 (a). It ordered that “the paper writing of Lily W. Pumphrey dated the 19th day of November, 1957, be and the same is hereby admitted to probate as the Last Will and Testament of Lily W. Pumphrey.” On 10 June daughters noted an appeal therefrom to this Court. II Daughters would have us decide the issue of the propriety of the order of 21 May 1974 in the frame of reference of this question which they present: “Is a Joint and Mutual Will, contractual in nature, irrevocable and therefore entitled to probate to the exclusion of later purported testamentary documents, where said Will was not revoked prior to the death of one of the parties thereto and the survivor caused said Will to be probated as the Will of the deceased party and accepted benefits thereunder?” We accept on the record before us that the will of 1942 was not revoked prior to the death of William B. Pumphrey, one of the parties thereto, and that the surviving party, Lily W. Pumphrey, caused the will to be probated. We assume for the purpose of decision, but expressly do not decide, that it was a joint and mutual will, 6 contractual in nature, and that ⁴⁵⁹ Lily W. Pumphrey accepted benefits thereunder.

In other words, we are assuming arguendo, for the determination of this appeal only, that the will of 1942 was a joint, mutual, reciprocal will binding William and Lily to dispose of their property in the manner therein set out, each in consideration of the other, and that there was a contract between them that the will would remain in effect. Even on these assumptions, which accept the premises in the question as presented by daughters, the answer to the question is no, the will of 1942 is not irrevocable. The authorities are not entirely uniform on the point, but Annot. 169 A.L.R. 9 , 24, states a rule which it characterizes as in accordance with sound theory: “[0]ne of two testators who have made wills which are reciprocal in the circumstance that each will makes provision for the testator of the other will may revoke his will even after the death of the other testator, notwithstanding the wills were drawn and executed pursuant to a contract.” (footnotes omitted) The annotation explains the effect of such revocation, at 24-25: “This does not mean that the obligation of the contract is escaped by revoking the will. It means that on the issue of will or no will with which the probate court is concerned a will is to be regarded as revocable notwithstanding it was executed pursuant to contract.

The question whether a revocation constitutes a breach of contract for which relief may be had in law or in equity is of no concern, strictly speaking, to a probate court. ⁴⁶⁰ Therefore a later will which revokes a prior will which was jointly executed, or one of two separate wills containing reciprocal bequests, is admissible to probate, though the testator violated his contract by executing it; and a jointly executed will or one of two separate wills which are reciprocal in their provisions is not admissible to probate as the will of one of the testators who revoked it, notwithstanding the revocation was a breach of contract. Concisely stated, it is the contract and not the joint will which is irrevocable.” (footnotes omitted) Vaughn, supra, note 6 hereof, reached the same conclusion. After rejecting the theory of irrevocability, he said, at 170: “The last theory, and, in the writer’s opinion, the only tenable one at this time is that of contract. It can be stated as follows: The joint and mutual will is based on a contract between the parties.

While the will itself is wholly revocable at any time, the underlying contract will be enforced. * * * Shawver v. Parks [ 239 S.W.2d 188 ] clears up many questions about this creature — partly will and partly contract. According to it, the true rule is that the will is a testamentary instrument, ambulatory and revocable, and it cannot be made irrevocable. Even though the testamentary portions are revocable, the contract portions are irrevocable. Therefore, the underlying compact is enforceable — or in a loose sense irrevocable — notwithstanding the revocability of the will.” We believe this to be the majority view in other jurisdictions.

See Tutunjian, et al. v. Vetzigian, et al., 299 N. Y. 315 , 87 N.E.2d 275 (1949). It is also in accord with the decisions of this State. It was early recognized in this jurisdiction that “Wills are ambulatory; they can operate only after the death of the party; and are liable to be changed at any time.” Mundorff v. ⁴⁶¹ Kilbourn, 4 Md. 459, 464 . In Ottaviano v. Lorenzo, 169 Md. 51, 63 , the Court said: “A testamentary paper is in nature ambulatory until the death of the maker, and, so, is generally revocable at pleasure, and becomes operative only at its executant’s death.” See Cowman v. Classen, 156 Md. 428, 442 ; Alexander v. Worthington, 5 Md. 471, 480 ; 2 Blackstone, Commentaries ⁵⁰².

In Wilks v. Burns, 60 Md. 64 , the Court of Appeals had the question, at 68 whether a person could “fetter and clog himself by the terms of a contract in the execution of the power given him by his father’s will”, the donor of the power intending that it should be executed by the will of the donee. It said, at 68-70: “The word ‘will’ has a technical meaning, and implies an instrument executed in conformity with prescribed formalities, but subject to alteration or cancellation at the volition of the maker. It is his will, because his own mind, untrammeled and free, has determined to give the disposition of his property a certain designated direction. It does not take effect until his mental and physical powers have been destroyed by disease and dissolution, and while ever he has a disposing mind it is under his control.

This control over property until the last moment of life, is said by some elementary writers, to be derived from the sanction of the sovereign power; while others declare it to be a natural right existing ‘prior to all positive institutions and civilized refinements; and one of the old English jurists, in his quaint phraseology, says that ‘Last Wills and Testaments, as to their Use, End and Substance, (though not as to the Solemnities thereof,) were known in the world long before Time had one gray Hair; indeed not long after the World came out of Nothing.’ Godolphin’s Orphans’ Legacy, I. The right to make a testamentary disposition of property being of such ancient origin, and existing coevally with the right to hold it, must have been ⁴⁶² exercised anterior to the ages when the knowledge of writing was acquired. Originally such disposition must have been by oral declarations, subsequently verified by the testimony of witnesses. As the intention of the testator might be influenced and changed by a mutation of circumstances, so could he make another declaration indicating the effect of the influences thus operating on his mind. This he could continue to do until the last moments of his existence.

He could revoke his declared intention and alter his will, until the indication of his wishes had been rendered impossible by disease and dissolution. Although the policy of the law has long since prescribed certain solemnities, tending to produce more certainty in the authentication of last wills and testaments, there has never been any interference with the right of revocation. The untrammeled enjoyment of this right has never been inhibited by the sovereign power in the exercise of legislative control; and the testator’s own declaration, in the body of the instrument, that it is not to be revoked, has no more effect than the usual formal phraseology that it is his last will and testament, which, literally interpreted, is tantamount to a solemn announcement that no other will is to be executed by him at any future period. Notwithstanding this apparent intention the testator may, by alteration or cancellation, at some subsequent period, give an entirely different direction to the disposition of his property; the instrument being inchoate with respect to its operation.

It is merely the evidence of the incipient intention of the testator, reduced to writing, and authenticated by prescribed formalities; to take effect after his death but exclusively under his control during the whole period of his life. If this incipient intention in relation to the disposition of his property, should, at any subsequent period, undergo a change, having the exclusive control of ⁴⁶³ the written evidence of which was once his intention, he can obliterate and destroy such evidence.” In O’Hara v. O’Hara, 185 Md. 321 , the Court, again holding that the donee of a general power of appointment by will has no right to enter into a contract that fetters such power, summarized, at 325, what it said in Wilks : “As this Court stated in Wilks v. Burns, 60 Md. 64, 69 , the declaration' of a testator that his will shall be ‘irrevocable’ has no more effect than a declaration that his will is his ‘last will and testament.’ These words literally mean that he does not intend to execute another will. And yet it is beyond question that he has the legal right to make a different disposition of his property at any time. A will is evidence of the testator’s incipient intention, authenticated in accordance with the requirements of the law, to take effect after his death, but remaining under his control during the entire period of his life.

The testator can revoke his declared intention and alter his will as long as he possesses testamentary capacity. The untrammeled right to revoke a will has never been abridged by the State.” It is clear, therefore, that there is no restriction on the right of a person with the capacity to make a will to revoke it. 7 It is also clear that a will may be drawn and executed pursuant to a contract, the meaning of which is that the will shall not be revoked. The Court of Appeals said in Wilks v. Burns, supra, at 70: ⁴⁶⁴ “There can be no doubt of the legal right of one, having the exclusive ownership of property, to enter into a contract to execute a will in favor of the other contracting party; but such transaction cannot be properly termed a testamentary disposition of property; two or more contracting parties having concurred and bound themselves by reciprocal obligations, founded on good and valuable considerations. The testamentary document is nothing more than a part of the contract, which has been determined by mutual stipulations, controlling the mind of the testator.” The Court, at 70-71, explained what redress could be had if a will so executed