Shimp v. Shimp

Smith, J., delivered the opinion of the Court. We shall here hold that a man and a wife entered into a binding contract when they executed an instrument as their ³⁷⁴ joint will. 1 Accordingly, we shall modify and affirm the judgment of the Court of Special Appeals in Shimp v. Shimp, 43 Md. App. 67 , 402 A.2d 1324 (1979). The facts are not in dispute. Clara V. Shimp and Lester Shimp (Shimp) were married in 1941.

On May 8, 1974, they executed an instrument which was headed "Last Will and Testament of Clara V. Shimp and Lester Shimp.” It stated in pertinent part: WE, CLARA V. SHIMP AND LESTER SHIMP, of Washington County, Maryland, being of sound and disposing mind, memory and understanding, and capable of making a valid deed and contract, do make, publish and declare this to be our Last Will and Testament, hereby revoking all other Wills and Codicils by each of us made. After the payment of all just debts and funeral expenses, we dispose of our estate and property as follows: ITEM I. A. MUTUAL BEQUEST— We mutually give to whichever of us shall be the survivor the entire estate of which we may respectfully [sic] own at our death. ³⁷⁵ B. SURVIVOR’S BEQUEST — The survivor of us gives the entire estate of his or her property which he or she may own at death as follows: The first two bequests under Item IB were conditioned upon the beneficiaries’ being alive at the death of the survivor of the testators. These were bequests of $1,000 each to James Shimp and Emma Plotner. Mary Virginia Huff and Betty Jane Moats were bequeathed all of the household goods and machinery.

The remainder was then "devised unto” four named individuals who are said to be the children of Mrs. Shimp by a previous marriage. Mrs. Huff and Mrs. Moats were two of these named persons. The last item in the will stated: ITEM III. We, the Testators, do hereby declare that it is our purpose to dispose of our property in accordance with a common plan.

The reciprocal and other gifts made herein are in fulfillment of this purpose and in consideration of each of us waiving the right, during our joint lives, to alter, amend or revoke this Will in whole or in part, by Codicil or otherwise, without notice to the other, or under any circumstances after the death of the first of us to die. Unless mutually agreed upon, this Last Will and Testament is an irrevocable act and may not be changed. Mrs. Shimp died in 1975. Apparently, during Mrs. Shimp’s lifetime the will was left for safekeeping with the Register of Wills for Washington County pursuant to Code (1974) § 4-201 (a), Estates and Trusts Article.

It has not been offered for probate, however. It is said that the parties possessed no property of consequence at the time of their marriage. They acquired a farm in 1954 with help from the Farmers Home Administration. It was sold in 1973.

The parties then bought a home. Title to the farm and the home was taken as tenants by the entireties. Mrs. Shimp possessed no probate estate at the time of her death insofar as the record discloses. ³⁷⁶ Shimp is said now to be about sixty years of age. His wife was about twenty years older than he.

It is claimed that he is unable to read and write. Shimp filed a petition in the Circuit Court for Washington County seeking declaratory relief. All the beneficiaries under the joint will were named as parties defendant. The petition referred to the provision in Item III of the will to the effect that "[u]nless mutually agreed upon” the will was "an irrevocable act and m[ight] not be changed.” It said that "there was thereafter no such mutual agreement to alter or nullify the Will.” It recited that although the will "was left for safekeeping with the Register of Wills Office,” as the will related to Mrs. Shimp it "was never probated because apparently [she] owned no property solely in her name,” that Mr. and Mrs. Shimp did own real and personal property as tenants by the entireties, and that he "s[ought] an adjudication to definitively establish that he is at liberty to dispose of his estate by other testamentary disposition unaffected by the [before quoted] section of the mutual Will” which provided that it might not be changed without the mutual consent of the parties.

It added a complaint that "certain relatives” of Mrs. Shimp, "among those who [were] designated ... as Defendants, [were] demanding that [Shimp] distribute to them some of the assets that were accumulated by [him] and his deceased wife during their joint lives.” Citing Hughes v. McDaniel, 202 Md. 626 , 98 A.2d 1 (1953); White v. Winchester, 124 Md. 518 , 92 A. 1057 (1915), and Moats v. Schoch & Berry, 24 Md. App. 453 , 332 A.2d 43 (1975), the chancellor concluded that the will was revocable, but that the contract under which the will was executed might be specifically enforced in equity or damages recovered upon.it at law. Thus, he said, "In view of the above authorities, the Court will dismiss the Bill of Complaint and leave the third party beneficiaries to the remedy above mentioned.” The bill of complaint was dismissed "with costs to the Plaintiff.” In Mauzy v. Hornbeck, 285 Md. 84 , 400 A.2d 1091 (1979), the Court had before it a declaratory judgment action in ³⁷⁷ which both sides had sought a decree as to the proper interpretation of a statute. The Court noted, "[I]nstead of declaring the parties’ rights and resolving the issues, the circuit court merely dismissed the bill of complaint. This was improper.” Id. at 90 .

Judge Eldridge referred for the Court to a number of our prior cases on the issue and quoted from Hunt v. Montgomery County, 248 Md. 403 , 237 A.2d 35 (1968). In that case Chief Judge Hammond said for the Court: In Maryland this Court has said time and again that seldom, if ever, in a declaratory judgment proceeding should a demurrer be sustained or the bill or petition dismissed without a declaration one way or the other of the rights of the parties. [Id. at 410.] The other cases cited by the Court in Mauzy are to the same effect. Hence, it follows that the Court of Special Appeals erred in affirming the dismissal of this action. Shimp in his argument focuses not on the contract between him and his wife as expressed in the will, but on the will itself.

He contends that the will is invalid, not because it fails in any way to comply with the requisites of Code (1974) § 4-102, Estates and Trusts Article, but because (1) "it passes no separate property, was not admitted to probate and is not to take effect until the death of the survivor”; (2) "the burden is upon the party asserting the contract to prove it and the Appellee has failed to prove the existence of separate tangible consideration to support a contractual promise not to revoke the joint will,” and (3) "assuming, arguendo, that there exists proven sufficient consideration to support a promise not to revoke, there must be an election to accept benefits under the will and probate of the will.” Many commentators have lamented the fact that courts, as Shimp here attempts to do, have tended to blend the will and contract components of an instrument such as that now before us. The result has been that wills, which are by their nature ambulatory, have been held in some instances to be irrevocable, and contracts, which by their nature trigger liability upon breach, have been held rescindable in ³⁷⁸ some cases. For instance, B. Sparks, Contracts to Make Wills (1956), states: Although it is elementary contract law that one party cannot, in the absence of a breach by the other, rescind his obligation without incurring liability for his failure to perform, there is much discussion both in the cases and among the commentators of the promisor’s right to rescind a contract to make a will. And although it is an elementary principle of testamentary law that a will is by its very nature freely revocable and ambulatory until the death of the testator, there is much discussion of the irrevocability of a will that has been executed in compliance with a contract.

Neither of these concepts has any foundation in principle nor is either of them supported by more than very meager authority. They both result from an evident failure to distinguish the effect of a will from the rights and duties created by contract. Thus, while the overwhelming weight of authority reaches the logical, and what seems to be the inevitable, conclusion that the contract is irrevocable except by mutual consent of both parties to it and that the will is always revocable so long as the testator is alive and sui juris, the confusion still prevails among the commentators and injudicial dicta. [Id. at 110-11.] Professor Sparks explains: At least part of the difficulty arises from the fact that actions to enforce contracts to devise or bequeath are often designated as actions to enforce wills made pursuant to contract. When the will has once been made there is often a tendency to treat the rights under the will and the existing contractual rights as being identical.

If the contract is thought of as a contract to pass property at death, and the will thought of as a vehicle for passing the property, much of the confusion and apparent ³⁷⁹ conflicts would disappear. The contract, not the will, gives the promisee a right to the property, and, when litigation arises, it is the contract that must always be established. Once the contractual right is established the interests of the promisee are protected whether or not a will has been executed. When the will has been executed but subsequently revoked, it merely confuses the issue to talk of enforcing the will or holding that the will was irrevocable in equity.

The will is not "enforced” and there is no such thing as a will that is irrevocable in equity or anywhere else.... It should be clear that a joint or mutual will, like any other will, is always revocable while the testator is alive and sui juris, but that a valid contract is never revocable except by the consent of all the parties to it. The tendency, especially where joint or mutual wills are concerned, to speak of the will and the contract as one and the same thing has concealed, rather than provided a solution for, the problems involved. There are often discussions of the revocability of joint and mutual wills without any prior determination of whether or not there is any contract involved.

Such an approach completely ignores the entire nature of the transaction. If joint and mutual wills are treated like any other wills, and contracts to make joint or mutual wills treated like any other contracts, the confusion and uncertainty in this branch of the law would tend to disappear. [Id. at 112-15.] To similar effect see Eagleton, Joint and Mutual Wills, 15 Cornell L.Q. 358, 366-67, 385 (1930). In Maryland a will is revocable. For instance, an agreement to make an irrevocable will was before the Court in O’Hara v. O’Hara, 185 Md. 321 , 44 A.2d 813 (1945).

Judge Delaplaine said for the Court: And yet it is beyond question that he has the legal ³⁸⁰ 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. [Id. at 325.] To like effect see Ottaviano v. Lorenzo, 169 Md. 51, 63 , 179 A. 530 (1935), Wilks v. Burns, 60 Md. 64, 69 (1883), and Alexander v. Worthington, 5 Md. 471, 480 (1854).

In Moats v. Schoch & Berry, 24 Md. App. 453 , 332 A.2d 43 (1975), certain parties opposed admission to probate of the will of Lillie W. Pumphrey because of a prior joint will with her husband who had predeceased her. The Court of Special Appeals said the issue before it as framed by the parties was: "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?” [Id. at 458 (emphasis in original).] Chief Judge Orth carefully reviewed for the court our prior cases and the law generally. The court said: We think it patent that Maryland follows the great weight of modern authority that "an instrument is not to be denied probate as a will for the reasons that it was executed by two or more persons purporting to sign as testators, contains bequests which are reciprocal, and was executed pursuant to a contract, provided the instrument is not dependent upon the death of the survivor for ³⁸¹ effectiveness as the will of the first to die, but can be admitted to probate successively upon the death of each testator as his separate will.” Annot., 169 A.L.R. 14 -15. Such a will, however, may be revoked in a manner provided by Estates & Trusts Art. § 4-105, and a subsequent will, validly executed, and which is the last will of the testator, shall be admitted to probate.

But, the contract upon which the prior will was executed, upon proof of its validity, may be specifically enforced in equity, or damages recovered upon it at law. See P. Sykes, Maryland Probate Law and Practice, § 12 (1956). We hold that the Circuit Court for Charles County was correct in ordering that the 1957 will of Lillie W. Pumphrey be admitted to probate. [Id. at 465.] We agree. The fact that a will may be revoked is not determinative of the issue before us, however.

The issue with which we are faced is not the revocability of the will insofar as Shimp is concerned, but whether he entered into a binding contract with his wife to devise according to a stated plan. As noted by Professor Sparks, op. cit. at 115, a joint will may be but a variation of such a contract. He points out, however, "The clear weight of authority, and certainly the sounder view, is that the mere presence of either joint or mutual wills does not raise any presumption that they were executed in pursuance of a contract.” Id. at 27. See also Persson v. Dukes, 280 Md. 194, 197, 198 , 372 A.2d 240 (1977).

Contracts to devise have been known to this Court at least since the time of Simmons v. Hill, 4 H. & McH. 252 (1798), and Browne v. Browne, 1 H. & J. 430 (1803). In Moats v. Estate of Lily W. Pumphrey, 33 Md. App. 9, 18-19 , 363 A.2d 589 , cert. denied, 279 Md. 684 (1976), the Court of Special Appeals held in a sequel to Moats that the chancellor was not clearly in error when he found that the parties had not established a contract to convey by the prior joint