Operation of Joint Wills in Texas

By BERTEL M. SPARKS of Durham, N. C.

In 1775 Lord Mansfield declared, "Nowthere cannot be a joint will.' ' The state-ment was offered as a self-evident truism'and such it was. And it is no less true nowthan it was then. By its very nature a willis a one-party instrument having to dowith the winding up or settling of an in-dividual's affairs at death. As such it isimpossible for a will, even when jointlyexecuted by two or more persons, to havea joint operation like a deed or contractexecuted by joint grantors or obligors.But in spite of the self-evident nature ofLord Mansfield's dictum, the term "jointwill" has become rather thoroughly em-bedded in Anglo-American legal literatureand there appears no likelihood that it isgoing to disappear. In view of all this, itis the purpose of the present paper toascertain the meaning of that term as itis generally used and to further inquireinto whether or not it has acquired anypeculiar or unique meaning in the law ofTexas.

The General View

A satisfactory functional definition of a"joint will" is that it is a term used todescribe the separate wills of two or morepersons expressed in a single writingwhich is executed by each of them. Andthe point worthy of special emphasis inthis connection is that there are separatewills in spite of the single writing. Thewriting is often phrased in such languageas "This is our will .... we dispose of ourproperty," and similar expressions. Thusit is joint in form but it can never bejoint in operation. Neither does the factthat the separate wills are expressed inone writing give them any peculiar orunique character. They are still separatewills and the validity of the execution asto each maker must be separately consid-ered.3 When the first maker dies, the docu-ment is offered for probate as his will.Whether or not it is admitted to probateat that time has no bearing on its validityas the will of the survivor ' nor does it af-

BERTEL M. SPARKS concludes that joint willsare not suitable instruments for any estate plan,are especially unwise in Texas.

fect the right of the survivor to subse-quently revoke the will.' Upon the deathof the survivor the same document maybe offered for probate as the survivor'swill. At that time the question to be de-cided is whether or not the writing wasproperly executed by the survivor, and, ifit was, whether it has been revoked. Inthe determination of these questions, theadmission or non-admission of the docu-ment to probate as the will of the firstmaker to die is irrelevant. Even if theparties die simultaneously and leave noproperty except that which is jointlyowned, there are still separate estates tobe administered and the claims againsteach must be separately considered.

A concept that is at least as old, andprobably older, than the joint will is thatof a contract to make a will, or, moreaccurately stated, a contract for the pas-sage of property at death.' By the termsof such contracts the promisor becomes

APRIL 1968

BERTEL M. SPARKS

Dr. Sparks is a professor of law in Duke Uni-versity School of Law at Durham, North Caro-lina. He is a native of Kentucky, and earned aB.S. degree from Eastern Kentucky University,his LL.B. from the University of Kentucky andLL.M. and S.J.D. degrees froh the Universityof Michigan.

Dr. Sparks practiced law in Lexington, Ky. fora year, and taught law in New York Universityfrom 1949 until he joined the Duke law faculty in1967. His subjects include equitable remedies, fu-ture interests, mortgages, personal property, realproperty, sales, trusts and estates, vendor-pur-chaser, and wills.

obligated to provide for a particular testa-mentary disposition. If he dies withouthaving made such a provision, he will bein breach of contract and his estate willbe subject to the same kind of contractualliability as would be the case if he haddied in breach of some other, contract. Hislast will should be admitted to probatewithout regard to whether it is in com-pliance with the contract or is inconsistentwith it.7 The obligation to the promiseewill be a claim against the estate and willtake priority over the claims of benefi-ciaries of an inconsistent will. Enforce-ment of the contract has no direct bearingupon the will but might have the effect ofso removing the assets from the estatethat there will be nothing left upon whichthe will can operate. The result is the sameas any other case where a testator's liabil-ties equal or exceed his assets.'

But it is altogether possible that the willcontracted for might be a joint will, thatis to say, it might be a contract wherebyeach of two parties bind themselves toexecute a joint writing as the separatewills of each of them. In such a case it isalso possible that the terms of the contractitself might be expressed on the face ofthe will. If this is done, the result is threeindependent legal documents, two willsand one contract, expressed in a single

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writing. The presence of the single writ-ing does not alter the fact that three sep-arate legal relationships are involved.When the first party dies, the documentmay be offered for probate as his will, and,if his proper execution is shown and ifthere is no showing that he has subse-quently revoked, the instrument should beadmitted as his will. If perchance he ex-ecuted a subsequent revoking will, evenwithout notice to his joint maker, the jointwill must be denied probate and the sub-sequent will admitted. In such a case thesurviving joint maker as promisee of thecontract or the third party beneficiary ifthere is one may bring an action on thecontract. When the surviving joint makerdies, the writing may be offered for pro-bate as his will. If it is found that his willwas not properly executed or if he hassubsequently revoked, probate will be de-nied and his entire estate will be liable forhis breach of contract.

The presence of three legal relation-ships arising out of one document has ledmany writers on the subject to assumethat all three must stand or fall together,that the physical unity necessitates a unityof legal effect. Once that line of reasoningis accepted, it is but a short step to theconclusion that somehow the contract isa necessary element of the joint will orthat the joint will as such has a legal sig-nificance that sets it apart from an indi-vidual will. It is often said that joint willsare irrevocable. It is even more oftensaid that joint wills are revocable solong as both parties are alive but thatif one party dies with the will in effect,the other cannot thereafter revoke.There is no rational foundation for eitherstatement so long as it is recognizedthat wills are creatures of statute andthat the statute provides for their re-vocation but makes no provision fortheir irrevocability. Assertions of the kindreferred to are usually made without anyinquiry into whether or not any evidenceof a contract has been presented and with-out regard to whether the instrument con-cerned includes any contractual language.They seem to be based on the assumptionthat the wills themselves by virtue of theirreciprocal testamentary provisions, aresufficient evidence of the contract. Butthat assumption is without foundation un-less it is also assumed that the interestsof husbands and wives are so adverse to

(Continued on Page 314)

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Joint Wills(Continued from Page 278)

each other that their testamentary wishesare in the nature of things so antagonisticthat it is virtually impossible for them tomake similar testamentary arrangementswithout their having subjected themselvesto a binding legal obligation to do so. Buteven if the contract did exist and thestatements concerning revocability wereintended to apply, not to joint wills, but tocontracts to make joint wills, they wouldstill be fallacious. A contract is never "re-vocable" or subject to unilateral rescis-sion, and in this respect a contract tomake a joint will is no different from anyother contract. If one party undertakes torescind, even while the other is living, theattempted rescission will be ineffectiveand the contract will be enforced.

Although a unilateral rescission of acontract is impossible, the parties are freeto, get together and agree upon a rescissionany time they wish." As soon as one partydies with the contract still in effect, rescis-sion by the survivor is impossible. It isimpossible, not because it concerns a will,and not because it concerns a joint will,but because it is a simple contract which,like all other contracts, cannot be rescind-ed without the concurrence of both partiesto it. It is in this sense, and in this senseonly, that it may be said that the contrac-tual obligation to make joint wills may beterminated while both parties are alivebut cannot be terminated by the survivorafter one of them has died. A more accu-rate way of putting it would be that thewills are always revocable, and that thecontract is never revocable but may berescinded provided both, not just one, ofthe parties so agree.

The Texas View

But the above analysis. of the generalview does not seem to be applicable inTexas where there is an unusual tendencyto fuse the wills and the contract into asingle concept. The position of the Texascourt is well illustrated by a decision ofthe Texarkana Court of Civil Appeals in1920." Two sisters executed a joint will(that is to say, a joint writing as theirseparate wills) by which the first of themto die gave all her property to the survivor

for life and further provided for a giftover of the property of both upon thedeath of the survivor. One sister died andthe will was admitted to probate as herwill and her estate was distributed to thesurviving sister. Thereafter the survivorexecuted a new will revoking the joint willand providing for a different disposition.Upon the survivor's death the joint willwas admitted to probate as her last legalwill. No effort was made to explain howthis could be harmonized with the statu-tory provisions for the execution and rev-ocation of wills." It would seem that thebetter view, and the view followed by aclear majority of the American courts,would have been to admit the last validlyexecuted will to probate and then, in aseparate proceeding, inquire into whetheror not the beneficiaries of the joint willhad any contractual claim against the es-tate of the survivor."

But failure to explain why it ignoredthe Texas Wills Act was not the onlyshortcoming of the Texarkana court. Itfailed to give any satisfactory explanationof what gave the beneficiaries of the re-voked joint will any claim of any kindagainst the decedent's estate. In a curiousstatement that sounds both in contractand in estoppel without a contract, thecourt declared: "The fact that the will wasexecuted in that form conclusively evi-dences an agreement by the participantsto do what was actually done by them. Thewill became irrevocable after the death ofone, not because it was made in pursuanceof a previous contract, but because thesurvivor, after ratifying and accepting thebenefits conferred, became estopped to re-pudiate the will."'" If the court intended torest its decision upon a contract, whichappears at least doubtful, it seemed toassume that the existence of the joint willwas sufficient evidence of the contract.Such a position is clearly inconsistent withsound reason as well as against the clearweight of authority outside of Texas."The presence of a joint will is evidencethat the parties had talked the matterover and had arrived at an understandingconcerning their respective testamentarydispositions. Discussions and understand-ings of this kind between persons of closeaffinities, sisters in this case, are not un-usual and should not be regarded as anyindication of an intent to make a bindingcontract.

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Reliance upon estoppel in this connec-tion is even more difficult to justify thanreliance upon contract. If a contract couldbe proved, the denial of the privilege ofrescission (of the contract) to the sur-vivor could be based on orthodox contractlaw that one party cannot rescind withoutthe consent of the other. Admission of aninconsistent will to probate would not de-prive the promisee of his contractual rem-edy. If it is admitted that no contract ex-ists, it is difficult to find any basis for anobligation upon the survivor that wouldprevent her from making any dispositionof her property that she chose. The posi-tion of the Texarkana court tends towardthe untenable doctrine that the mere ex-istence of reciprocal testamentary provi-sions constitutes a sufficient basis for re-liance by each testator on a belief that theother will not change his will, that uponthe death of either the other is estoppedfrom altering his testamentary inten-tions."

Whatever might be its rationalization,the case discussed above held that wheretwo parties execute a joint will by whichthe first to die gives the survivor his orher entire estate for life and both givetheir entire property at the death of thesurvivor to a third person, as soon as oneparty has died and the other has claimedthe benefits under the will, the survivoris under an enforceable obligation not toalter his testamentary plans. SubsequentTexas cases have both clarified and ex-panded this position but they have notabandoned it. And while some uncertaintyas to the theory remains, it appears thatthe tendency is away from reliance uponestoppel and toward reliance upon con-tract as well as away from probate rem-edies and toward contractual remedies. 7

It has also become clear that whether thesurviving joint maker is given a life estateor a fee simple is immaterial and that hiscontractual obligation does not depend up-on his accepting the benefits of the will ofthe first to die. Both of these points wereapplied in Weidner v. Crowther18 where ajoint will executed by a husband and wifeas joint makers gave the survivor of thema fee and provided for a gift over of "allour property" at the death of the survivor.The survivor's renunciation and subse-quent execution of an inconsistent will didnot deprive the beneficiaries of the giftover of their claim to "all our property."

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In reaching its decision the court made itrather clear that it was relying upon thepresence of a contract rather than anydoctrine of estoppel when it declared, "Atthe heart of a mutual will lies a contractof the parties. It would be manifestly un-just to permit the surviving party to thecontract to disavow it and its obligations,as those obligations are incorporated intheir will. . . ."" The importance of thewords "as those obligations are incorpo-rated in their will" as used in this connec-tion has been emphasized by subsequentdevelopments. Standing alone these wordswould seem to indicate that in the absenceof any words of contract on the face ofthe joint will, the will would not be con-sidered evidence of an enforceable obliga-tion. Such is not the case. The words ap-parently mean nothing more than that thetestamentary provisions of the will mustbe construed and interpreted to ascertainspecifically what was promised. The onlyelement essential to establish that some-thing was promised is that there be ex-press words or gift to take effect upon thedeath of the survivor without regard towho the survivor might be. This was suf-ficient proof of a contract in the Weidnercase. It is out of harmony with the lawgenerally"0 but it appears to be the law inTexas. And the fact that the survivingjoint maker is given broad or even unlim-ited power of inter vivos disposition doesnot defeat the presumption that the pro-vision in the joint will for a gift over ofwhat remains at the survivor's death isthe result of an enforceable contract thatit be there. 1 But the inter vivos powermight be stated in such broad terms thatit will enable the surviving joint maker toeffectively defeat the beneficiaries of thegift over by making a complete inter vivosdisposition, and, if the power is sufficient-ly broad, the fact that it is exercised inbad faith will make no difference."

Once it is assumed that the provisionfor a gift over upon the death of the sur-viving party to a joint will is ipso factoevidence that it is the fruit of a contractbetween the joint makers, it is inevitablethat the testamentary provision itselfmust be construed in order to ascertainthe subject matter of the contract. In theWeidner case the provision was for a giftover of "all our property" and this washeld to impose a contractual obligationupon the survivor to leave all his property,including property acquired subsequent to

the death of the first maker to die, in ac-cordance with the joint will. But for thispurpose a gift of "all our property" is notnecessarily synonymous with a gift of aresidue or remaining part. In Kirk v.Beard" two brothers who owned certainproperty as tenants in common each ex-ecuted a will giving the other his undi-vided share of the commonly-held proper-ty and leaving the residue to certain namednieces, the two groups of nieces beingidentical. Upon the death of the firstbrother to die his will was admitted toprobate and his estate was distributed ac-cordingly. Upon the death of the survivingbrother the nieces claimed his entire es-tate under an alleged contract between thetwo brothers. Certain extrinsic evidenceof the contract was introduced but it wasof a somewhat nebulous character andwas apparently not relied upon by thecourt. The court considered the willsthemselves sufficient to prove a contractand then construed the contract as not in-cluding the commonly held property, thusleaving the surviving brother free to makea different disposition of that part of hisestate.

It should be noted that the Kirk caseinvolved, not a joint will, but two sep-arate writings having reciprocal provi-sions and being in such form as to indicateon their faces that they were executed inconjunction with each other. Such willsare usually referred to as "mutual wills."The court apparently assumed that theyshould not be distinguished from jointwills so far as their tendency to prove theexistence of a contract is concerned.

There is scarcely any end to the unusualconstruction problems created by relianceupon either joint wills or mutual wills asevidence of a contract when no contractuallanguage is used. It necessitates the ex-amination of testamentary language to as-certain the terms of a contract no part ofwhich was ever stated expressly in anyform. In Murphy v. Slaton5 a husband andwife executed a joint will leaving theirrespective estates to the survivor of themfor life and providing that upon the deathof the survivor the "estate then remain-ing" was to be disposed of in a certainmanner. The husband died first and thewill was admitted to probate as his will.Thereafter the wife executed codicils pur-porting to make a different disposition. Itwas held that the joint will was sufficient

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evidence of a contract which applied toall property, whether separate or commu-nity, held by either party at the time ofthe husband's death but did not apply toany subsequently acquired property of thewife. Under this ruling the wife's afteracquired property was distributed in ac-cordance with the codicils and all otherproperty distributed to the beneficiariesof the joint will. The court gave no indi-cation of what disposition would havebeen made of the after acquired propertyif no codicils had been executed. At leasttwo possibilities present themselves forconsideration. It could have passed underthe joint will as part of the wife's "estatethen remaining," which would have beenproper if the phrase "estate then remain-ing" had been given its normal and nat-ural testamentary meaning, or it couldhave passed as intestate property, whichwould have been the necessary result ifthe quoted phrase had been given the samemeaning in its testamentary capacity asthe court attributed to it in its contractualcapacity. The Fort Worth Court of CivilAppeals has held in a similar case that itshould have passed under the joint will."Of course, if a joint will makes no provi-sion for any kind of gift over at the deathof the surviving joint maker, it is not evi-dence of any kind of contract concerningthe survivor's estate." The result reachedin the Fort Worth case is probably theproper one but it does create something ofa paradox to hold that a given phraseused only one time on one piece of paperidentifies one item of property for testa-mentary purposes and an entirely differ-ent item of property for contractual pur-poses. It is submitted that the error liesin the mistaken assumption of the Texascourts that the writing had any contrac-tual purpose in the first place.

The arbitrariness of the Texas positionis illustrated by the holding in Graser v.Graser, a holding that has since beenfollowed in an almost identical case bythe Dallas Court of Civil Appeals." Awriting purporting to be the joint will ofa husband and wife was entirely in thehandwriting of the husband, was signedby both husband and wife, and was alsosigned by a third person. It had no attes-tation clause. The husband died first andthe instrument was admitted to probateas his holographic will. Upon the death ofthe wife the writing was offered for pro-

bate as her will but probate was deniedbecause it was not properly attested. Noappeal was taken from this denial of pro-bate but the would-be beneficiaries of theill-starred document brought action to es-tablish their claim as third party bene-ficiaries of a contract between husbandand wife. The writing was offered as evi-deiice of the contract but relief was deniedon the rather peculiar theory that it couldnot be evidence of a contract unless it wasvalidly executed as the will of both partiesto it. The reasoning back of this conclu-sion is difficult to comprehend. Althoughthe document was ineffective as the willof the wife, it was signed by her as wellas by her husband, and each of them in-tended it to be their respective wills. Itsbeing signed by attesting witnesses (al-though necessary to its validity as a will)could not have added anything to its valueas evidence that there was also a contract.The court's conclusion seemed to rest inpart at least upon the notion that unlessthe writing was properly executed as awill by both parties it would show on itsface that there was a failure of considera-tion, in which case there could be no con-tract. But this overlooks the fact that theconsideration in most cases of this kindconsists of the mutual promises to makewills."° If the writing signed by both par-ties did not evidence such mutual prom-ises, how could the signing of attestingwitnesses be of any help?

A question involved but apparently noteffectively presented in the Graser case isthat of whether or not one of two. jointmakers can serve as an attesting witnessto the will of the, other and the furtherquestion of whether or not he automatical-ly becomes, such a witness when he signsas a joint maker. As to the first question,there appears no logical reason why onejoint maker could not so act. The problemmight be that it would invalidate the giftto that witness but it should not affect thevalidity of the remaining portions of thewill." The second question raises problemsconcerning order of signing, whether ornot the joint maker intended to become awitness, whether there was publication,request by the testator, etc. All these prob-lems were considered satisfied and a jointmaker's signature upheld as being that ofan attesting witness by a Californiacourt. " In the Graser case no appeal wastaken from the denial of probate by the

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probate court, and the Supreme Court in-dicated that if an appeal had been taken,the decree denying probate would havebeen upheld.3 But there was nothing inthe Supreme Court's opinion to indicatethat the point had been argued; therefore,the question might be considered an openone. The cases rejecting efforts to curedefective execution by attaching a subse-quently executed self-proving affidavitsigned by the appropriate number of wit-nesses" would not be in point.

The Statute of Frauds

A contract to make a will, whether itbe for a joint will, an individual will, orseparate wills, is a contract for the trans-fer of property at death. As such it is sub-ject to the same Statute of Frauds prob-lems as any other kind of contract for aproperty transfer. The fact that it can-not be performed until the death of thepromisor does not bring it within theStatute of Frauds as a contract not to beperformed within a year since there is apossibility of its being performed withinthat time." On the same theory an agree-ment to render personal services to thepromisor for his life is not a promise notto be performed within a year. But anagreement to render personal services fora designated number of years, if morethan one, is within the ban of the Stat-ute." And if the subject matter is realestate, the contract is within the Statuteof Frauds provision covering a "contractfor the sale of lands.""3 If the subjectmatter is personalty, it is within the stat-utory provision concerning contracts forthe sale of personal property of morethan a certain amount." However, sincepart payment is as effective as a writingto satisfy the Statute of Frauds require-ment concerning contracts for the sale ofgoods and since in the usual contract-to-make-a-will case the promisee has ren-dered full performance by the time actionis brought, the Statute is usually satis-fied."

Contracts to make wills involve con-tracts for entire estates or for fractionalparts of estates more often than they doeither specific personalty or specific real-ty. In such cases if the estate consistsentirely of personalty, there is usually noproblem for the reason given above. If

any part of the estate is realty, the con-tract is likely to be held indivisible andtherefore entirely within the ban of thestatute."

In all the instances noted above theStatute of Frauds problems are no differ-ent from what they would have beenif a contract for a inter vivos prop-erty transfer rather than a contractto make a will had been involved. Forthis purpose there is nothing peculiaror unique about the fact that the transfercontemplated is to take place by will. Hereas elsewhere the cases dealing with ques-tions of part performance tend to dividethemselves into two categories. First,there are those that require a type of per-formance that is unequivocally referableto the contract, or in the words of JudgeCardozo, the acts of performance them-selves must "supply the framework of thepromise.""2 Second, there are cases plac-ing emphasis upon what is called the"hardship" or "virtual fraud" of thepromisee."

In case of a contract to make a willthe promisee is usually not entitled topossession and therefore not in a positionto make valuable improvements or do oth-er acts upon the property prior to thedeath of the promisor; therefore, if theunequivocally referable test is strictly ad-hered to, the part performance renderedwill usually be insufficient to give reliefagainst the Statute. " This position wastaken in 1921 in Texas in the case ofHooks v. Bridgewater" and was reaf-firmed in 1937." In the Hooks case anoral contract was entered into wherebya parent released custody of a child toa promisor who agreed to rear the childand to leave his entire estate to the childat his death. Both parent and child 7 fullyperformed their part of the bargain butthe promisor died without leaving thepromised will. Enforcement of the oralcontract was refused on the ground thatthere had not been sufficient part perform-ance to remove the case from the opera-tion of the Statute of Frauds. The courtdeclared that in order to justify such re-lief there must be payment of considera-tion, possession, and valuable improve-ments. "

If the Texas court had been favorablydisposed toward the "hardship" or "vir-tual fraud" doctrine, a different resultmight have been reached. Courts taking

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this position have recognized that filialdevotion, society and companionship, care,nursing, or other personal service mightbe valuable consideration but incapableof monetary valuation and therefore in-capable of being recovered in quantummeruit. This has been accepted as groundfor granting relief against the Statuteof Frauds, and enforcing oral contractsto devise." The Texas court consideredbut expressly rejected this position." Thecourt did indicate, however, that the oralcontract would have been enforced if fail-ure to do so would have perpetrated "anactual fraud as distinguished from a merewrong. ' ' Then in 1961 in Kirk v. Beard,12

while purporting to follow the Hookscase, the court seized upon the earlierdictum to enforce a contract under cir-cumstances which might amount to an ac-ceptance of the "virtual fraud" or "hard-ship" doctrine. Two brothers had exe-cuted their separate wills devising certainproperty to each other with their remain-ing property going to third persons. Onebrother died with his will in effect andhis property was distributed in accord-ance with the will. Upon the death of thesurviving brother the third persons, asthird party beneficiaries, brought actionto enforce an alleged contract between thetwo brothers. In upholding the contractagainst a plea of the Statute of Frauds,the court apparently believed it wasmerely applying the fraud exception re-ferred to in the Hooks case. However, noactual fraud was shown and all that couldhave been meant by the term "fraud" inthis connection was that the death of oneparty to the contract with his will in effectconstituted such an irretrievable change ofposition that it would be unconscionableto permit the Statute of Frauds to be usedto enable the survivor to avoid his prom-ised performance. If this is the doctrineof the case, Texas may be said to haveaccepted the "hardship" or "virtualfraud" theory and to have impliedly over-ruled the Hooks case. But since the courtpurported to be following Hooks, addi-tional litigation will be necessary beforethe position can be clarified.

The confusion presently existing is il-lustrated by Haynes v. Henderson3 wherea husband and wife executed their sep-arate wills by which each gave his or herproperty to the other. Although not ex-pressly indicated in the court's opinion,

it did not appear that there was any pro-vision in either will for any alternativebeneficiary. The husband died first. Hiswill was admitted to probate and his es-tate distributed accordingly. The wifesubsequently executed a new will andupon her death an action was brought toenforce an alleged oral contract betweenthe husband and wife by which it wasagreed that upon the death of the survivorof them the property was to be dividedequally between the husband's relativesand the wife's relatives. The Austin Courtof Civil Appeals held that recovery on thecontract was barred by the Statute ofFrauds but failed to even discuss thequestion of part performance. A con-curring justice did consider the matterand took the position that the death of thehusband with his will in effect could notbe considered such performance as wouldremove the case from the operation of theStatute because it was not an act "un-equivocally referable" to a contract."This result would appear to be dictatedby the decision in Hooks v. Bridgewater.A dissenting justice would have enforcedthe contract on the ground that the hus-band's death with his will in effect wassufficient performance to justify reliefagainst the Statute of Frauds. This resultwould seem to be the proper one underthe authority of Kirk v. Beard which wascited in the dissenting opinion as being"directly in point."" Thus the concurringand dissenting justices took opposite posi-tions but each appears to be correct underthe authorities upon which they respec-tively relied.

If both Hooks v. Bridgewater and Kirkv. Beard are to continue as authorities, arationalization for one or both of themthat is different from any that has beenoffered by the court thus far must befound. It is believed that such a differencecan be found by removing the Kirk casefrom the part performance doctrine en-tirely. Inquiry might be made as to whenor under what circumstances a will exe-cuted pursuant to an oral contract mayserve as the written memorandum re-quired to satisfy the Statute of Frauds.A recital of the contract, including all itsessential terms, could be included in thebody of the will. If this is done, thereappears no reason why it could notqualify as a memorandum of the con-tract signed by the party to be charged."5

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In the absence of any such recital, thewill, whether it is a joint will, twowills with reciprocal provisions, or anindividual will without any counter-part executed by the promisee, is not amemorandum of the contract." It is nota sufficient memorandum because it con-tains no words of contract. But in thosefew courts where the mere execution ofjoint or mutual wills having appropriatereciprocal provisions is regarded as suffi-cient evidence of the contract there is noreason why such a will could not serve asa sufficient memorandum. 8 And in viewof the Texas position on the evidentiaryquestion, the Kirk case could have beenplaced squarely on that ground. There isno assurance that this theory will beadopted by the Texas Supreme Court. Itis hoped, however, that at its earliest op-portunity the Court will either adopt thisor some other theory that will harmonizethe two apparently conflicting cases orelse will indicate which of the two is to befollowed in the future.

Conclusion

Joint wills are not suitable instrumentsfor any estate plan and their use is espe-cially unwise in Texas, where there issuch a strong tendency to rely upon theirpresence as evidence of a contract. Nouseful purpose is served by having twopeople execute the same document as thewill of each of them anyway except pos-sibly the sentimental one of permitting ahusband and wife to exercise the appear-ance of unity in the performance of thisparticular chore. The uncertainty sur-rounding their operation is a high priceto pay for such a limited amount ofsentimentality. Any concrete goals thatmight be achieved through the use ofa joint will can be more satisfactorilyachieved with two separate wills hav-ing similar reciprocal provisions. Buteven here the intentions of the respec-tive testators are likely to be frustratedunless the wills are drafted with extremecare. In the normal course of events a hus-band and wife are likely to prepare andexecute their respective wills at or aboutthe same time under the supervision ofthe same attorney. Each of them is likelyto make testamentary provision for theother and the wills often include provi-sions for identical dispositions upon the

death of the last to die. All this might bedone without any binding contractual ar-rangement having entered the mind ofeither party. But there is every indicationthat the Texas courts will look upon thesimilarity between the two wills and thecircumstances surrounding their execu-tion as evidence of an enforceable obliga-tion which might become very distastefulto the surviving party and which wasnever intended by either party.

But reciprocal provisions of the kinddescribed represent the normal and natur-al desires of many testators. No lawyercan avoid drafting such wills, and whenhe does, he should always find out whetheror not the parties really intend to enterinto a contract concerning their testa-mentary arrangements. If they do not, asis probably the case in most instances, heshould include a clause in each of theirwills expressly stating that the testator isaware of the will of the other party butthat the wills are not being executed pur-suant to any contract of any kind andthat each party reserves the right to re-voke his or her will with or without theconsent of the other party. In the un-likely event that a contract is desired,each will should contain a clause expresslystating the terms of the contract. But theinclusion of clauses of this kind should notbe allowed to conceal the fact that theinstruments being drafted are wills."9 Ineach instance the clause concerning thecontract is nothing more than evidenceof a matter outside the will. It is thetestator's own declaration that he has orhas not entered into a collateral trans-action. Such a unilateral declaration isnot conclusive evidence of the truth of thething declared. And if the declaration isaffirmative, that is to say, if there ac-tually is a contract, the contract itself

Law Brief LibraryPersons who would like a copy of an

appellate brief may get it through theState Bar Law Brief Library. Requestsshould be sent to: State Bar Law BriefLibrary, University of Texas Law School,2500 Red River St., Austin, Texas 78705.

Requests should include the name of thecase, the citation, and if possible, the docketnumber. The charge is $2.00 plus 100 a page.

APRIL 1968

should be reduced to writing as a separatedocument and signed by both parties. Pre-cautions of this kind should help to avoidexpensive litigation and should go a longway toward protecting testators fromhaving thrust upon them bargains theynever intended to make. In the meantimeit is to be hoped that the Texas SupremeCourt will re-examine its position con-cerning the evidence necessary to provethe existence of a contract to make a will.

1. Darlington v. Pulteney, 1 Cowp. 260, 268,98 Eng. Rep. 1075, 1079 (1775).

2. The case before the court did not have anydirect relationship to a joint will. The quotedstatement was offered as an obvious truth whichtended to give analogical support to the questionthat was being decided.

3. Probably the best illustration of the com-plete separateness of the two wills written injoint form is a case holding that although eachmaker signed the writing only once, and that asmaker, the signature could serve the dual pur-poses of maker of his or her own will and attest-ing witness to the will of the other. In re Estateof Lee, 225 Cal. App.2d 578, 37 Cal. Rptr. 572(1964). See also Hill v. Godwin, 120 Miss. 83, 89,81 So. 790, 791 (1919) (declaring that, "Whiletwo or more persons may jointly execute a singletestimentary document, sometimes spoken of as ajoint, double, mutual, or reciprocal will, it is wellsettled in America that this document constitutesthe valid separate will of each of those executingit, and that on the death of each it may be pro-bated as a will") ; Graser v. Graser, 147 Tex. 404,215 S.W.2d 867 (1948) (admitting the documentto probate as the will of one joint maker butdenying probate as to the other joint maker onthe ground that as to her there has not been anadequate execution).

4. Ibid.5. Lynch v. Lichtenthaler, 85 Cal. App.2d 437,

193 P.2d 77 (1948); Elmer v. Elmer, 271 Mich.517, 260 N.W. 759 (1935); Paull v. Earlywine,195 Okla. 486, 159 P.2d 556 (1945).

6. The validity of a contract to leave propertyat the death of the promisor was accepted withoutquestion at least as early as 1682. Goilmere v.Battison, 1 Vern. 48, 23 Eng. Rep. 301 (1682).Similar cases decided in the early part of theeighteenth century include Gregor v. Kemp, 3Swanst. 482, note, 36 Eng. Rep. 926 (1722);Webster & Milford's Case, 2 Eq. Cas. Abr. 362,22 Eng. Rep. 308 (1708). But a joint will wassufficiently unique as late as 1769 to lead LordCamden to say he was struck "more from thenovelty of the thing than its difficulty." Dufourv. Pereira, 1 Dick. 419, 420, 21 Eng. Rep. 332, 333(1769).

7. Allen v. First National Bank of Batesville,230 Ark. 201, 321 S.W.2d 750 (1959); In re Car-pentier's Estate, 104 Cal. App. 33, 285 Pac. 348(1930); In re Rolls Estate, 193 Cal. 594, 226 Pac.608 (1924); Manrow v. Deveney, 109 Ind. App.264, 33 N.E.2d 371 (1941) ; Matter of the Estate

of Adkins, 161 Kan.. 239, 167 P.2d 618 (1946);Morgan v. Sanborn, 225 N.Y. 454, 122 N.E. 696(1919); Van Vlack v. Van Vlack, 181 Ore. 646,182 P.2d 969, rehearing denied, 185 P.2d 575(1947); Shawver v. Parks, 239 S.W.2d 188 (Tex.Civ. App. 1951); Pullen v. Russ, 209 S.W.2d 630(Tex. Civ. App. 1948).

8. For an outline of the remedies available forbreach of contract to make a will see Sparks,Contracts to Wills 124-161 (N.Y.U. Press, 1956).Sparks, Enforcement of Contracts to Devise orBequeath After the Death of the Promisor, 39Minn. L. Rev. 1 (1954).

9. Trindle v. Zimmerman, 115 Cal. 323, 172P.2d 676 (1946); Curry v. Cotton, 356 Ill. 538,191 N.E. 307 (1934) (giving considerable atten-tion to the lack of notice to the survivor prior tothe death of the deceased but also emphasizingthat where the wills are made pursuant to a con-tract neither can withdraw "with or without no-tice, without the consent of the other testator") ;Stewart v. Todd, 190 Iowa 283, 291, 173 N.W. 619,622 (1919), modified, 190 Iowa 296, 180 N.W. 146(1920) (pointing out that, "As it takes the mu-tual consent of both to make a contract, so ittakes the mutual consent of both to rescind" it) ;St. Denis v. Johnson, 143 Kan. 955, 57 P.2d 70(1936) (enforcing the contract without any dis-cussion of a possible right of rescission) ; Brownv. Webster, 90 Neb. 591, 134 N.W. 185 (1912);Tiggelbeck v. Russell, 187 Ore. 554, 213 P.2d 156(1949) ; In re Fischer's Estate, 196 Wash. 41, 81P.2d 836 (1938) (enforcing the contract againstthe estate of the first to die without even sug-gesting a right of rescission).

10. Kingsbury v. Kingsbury, 120 Misc. Rep.362, 198 N.Y. Supp. 512 (Sup. Ct. 1923) is a caseof this kind and one that well illustrates theerronenous interpretation often placed upon con-tracts to make mutual wills. The action reallyfailed for lack of sufficient evidence to prove thecontract. The court then discussed the questionon the assumption that there was a contract andfound that the contract, if it ever existed, hadbeen revoked. The evidence of revocation consist-ed of discussions between the parties indicating amutual rescission. (See 198 N.Y.Supp. at 515-516.) The case has been cited for the propositionthat "either party to a contract to make joint ormutual wills may withdraw from the contractduring the lives of both parties." Hirsch, Con-tracts to Devise or Bequeath, 9 Wis. L. Rev. 267,274, note 50 (1934). See also Phelps v. Pipher,320 Mich. 663, 31 N.W.2d 836 (1948) (involvinga modification of the original contract).

11. Sherman v. Goodson's Heirs, 219 S.W. 839(Tex. Civ. App. 1920).

12. Texas Prob. Code sec. 59 (Vernon Supp.1966), sec. 63 Vernon 1956).

13. The result more generally reached is thatthe most recent will should be admitted to probateeven though its effect is to revoke a prior willmade pursuant to contract. See cases cited in note6 supra.

14. Sherman v. Goodson's Heirs, 219 S.W. 839,841 (Tex. Civ. App. 1920).

15. Rolls v. Allen, 204 Cal. 604, 269 Pac. 450(1928) (the court declaring that the execution ofjoint wills with reciprocal provisions had no tend-ency to show the existence of a contractual obli-gation) ; Jacoby v. Jacoby, 342 Ill. App. 277, 96

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N.E.2d 362 (1950) ; Menke v. Duwe, 117 Kan. 207,230 Pac. 1065 (1924) ; Glidewell v. Glidewell, 360Mo. 713, 230 S.W.2d 752 (1950); Ginn v. Ed-mundson, 173 N.C. 85, 91 S.E. 696 (1917) ; In reGudewiez' Will, 72 N.Y.S.2d 838 (Surr. Ct. 1947);Loflin v. Capps, 327 P.2d 443 (Okla. 1958); In reRhodes' Estate, 277 Pa. 450, 121 Atl. 327 (1923) ;Hoffert's Estate, 65 Pa. Super. 515 (1917) (notinfluenced by a provision in the will that, "Where-as we have agreed to and with each other . . .").Contra: Frazier v. Patterson, 243 ill. 80, 90 N.E.216 (1909) ; Culver v. Hess, 234 Iowa 877, 14N.W.2d 692 (1944); Lewis v. Lewis, 104 Kan.269, 178 Pac. 421 (1919).

16. For another case using the language ofestoppel in similar circumstances see Campbell v.Dunkelberger, 172 Iowa 385, 153 N.W. 56 (1915).

17. Although the contractual will, not the mostrecent will, was actually admitted to probate inthe Sherman case, that procedure has not beenfollowed in the more recent decisions. This is par-ticularly emphasized by two Supreme Court casesrecognizing the enforceability of the contract.Kirk v. Beard, 162 Tex. 144, 152, 345 S.W.2d 267,272 (1961) (stating in the opinion that "it is thecontractual portion of the will and not the willitself which is irrevocable") ; Murphy v. Slaton,154 Tex. 35, 43, 273 S.W.2d 588, 593 (1954) (de-claring that the surviving joint maker "technical-ly could have revoked her will, but the benefi-ciaries under the joint will . . . would have had acause of action" had she done so).

18. 157 Texas 240, 301 S.W.2d 621 (1957).19. Id. at 245, 301 S.W.2d at 624.20. Note 14 supra.

21. Scales v. Scales, 297 F.2d 219 (5th Cir.1961) ; Murphy v. Slaton, 154 Texas 35, 273 S.W.2d 588 (1954) (holding that a joint will providingfor a gift over of the "estate then remaining" atthe death of the surviving joint maker was evi-dence of a contract which did not include propertyacquired after the death of the first to die) ; Mc-Kamey v. McKamey, 332 S.W.2d 801 (Tex. Civ.App. 1960).

22. Scales v. Scales, 297 F.2d 219 (5th Cir.1961).

23. 162 Texas 144, 345 S.W. 2d 267 (1961).

24. This position with regard to separate but"mutual" wills is even harder to justify than it iswith reference to joint wills. The view taken bythe better reasoned cases on the subject is thatwills drawn in identical language and containingreciprocal provisions indicate a common under-standing but do not show a contract. Lynch v.Lichtenthaler, 85 Cal. App.2d 437, 193 P.2d 77(1948); Johansen v. Davenport Bank & TrustCo., 242, Iowa 172, 46 N.W.2d 48 (1951) ; Eicholtzv. Grunewald, 313 Mich. 666, 21 N.W.2d 914(1946); Wallace v. Wallace, 216 N.Y. 28, 109N.E. 872 (1915); Edson v. Parsons, 155 N.Y.555, 50 N.E. 265 (1898) ; Paull v. Earlywine, 195Okla. 486, 159 P.2d 556 (1945); Williams v.Rhode Island Hospital Trust Co., 88 R.I. 23, 143A.2d 324 (1958) ; In Matter of Werkman's Will,122 W. Va. 583, 13 S.E.2d 73 (1940). Employmentof a common draftsman and common attestersdoes not strengthen the case in favor of a con-tract. National Bank of Austin v. Emerson, 335Ill. App. 494, 82 N.E.2d 382 (1948); Knox v.Perkins, 86 N.H. 66, 163 Atl. 497 (1932); In re

Strong's Will, 171 Misc. Rep. 445, 12 N.Y.S.2d544 (Surr. Ct. 1939); Kingsbury v. Kingsbury,120 Misc. Rep. 362, 198 N.Y.Supp. 512 (Sup. Ct.1923) ; Ridders v. Ridders, 156 Ore. 165, 65 P.2d1424 (1937). The fact that the testators executethe wills simultaneously and in the presence ofeach other makes no difference. Klussman v.Wessling, 238 Ill. 568, 87 N.E. 544 (1909) ; Elmerv. Elmer, 271 Mich. 517, 260 N.W. 759 (1935);Sommers v. Zuck, 139 N.J.Eq. 245, 50 A.2d 648(1947) ; Wiley v. Trustees of Masonic Hall andAsylum Fund, 9 N.Y.S.2d 836 (Sup. Ct. 1939).

25. 154 Texas 35, 273 S.W.2d 588 (1954).26. Thrash v. Boggs, 346 S.W.2d 660 (Tex. Civ.

App. 1961).27. Martinez v. Pearson, 373 S.W.2d 76 (Tex.

Civ. App. 1963).28. 147 Tex. 404, 215 S.W.2d 867 (1948).29. Roberts v. Drake, 380 S.W.2d 657 (Tex.

Civ. App. 1964).30. For cases holding that such mutual prom-

ises are sufficient consideration for each other seeAshbauth v. Davis, 71 Idaho 150, 227 P.2d 954(1951) ; Brown v. Webster, 90 Neb. 591, 134 N.W.185 (1912) ; Auger v. Shideler, 23 Wash.2d 505,161 P.2d 200 (1945). Even though the contract isthat the first to die will leave his entire estate tothe survivor and there is no obligation placed up-on the survivor concerning his testamentary dis-position, the mutual promises are neverthelessadequate consideration. Turnipseed v. Sirrine, 57S.C. 559, 35 S.E. 757 (1900) And the adequacyof the consideration is not affected by the factthat one of the parties promising to leave hisentire estate in a certain manner actually ownsno property when the contract is made and hasno great likelihood of ever acquiring any. Rosen-berg v. Equitable Trust Co., 68 F. Supp. 991 (D.Del. 1946).

31. Tex. Prob. Code sec. 61 (Vernon, 1956).32. In re Estate of Lee, 225 Cal. App.2d 578,

37 Cal. Rptr. 572 (1964).33. See Graser v. Graser, 147 Tex. 404, 408,

215 S.W.2d 867, 870 (1948).

34. Boren v. Boren, Tex. - , 402 S.W.2d728 (1966); McGrew v. Bartlett, 387 S.W.2d 702(Tex. Civ. App. 1965).

35. Appleby v. Noble, 101 Conn. 54, 124 Atl.717 (1924) ; Berger v. Jackson, 156 Fla. 251, 23So.2d 265 (1945) ; Heery v. Reed, 80 Kan. 380,102 Pac. 846 (1909) ; Story v. Story, 22 Ky. L.Rep. 1714, 61 S.W. 279 (1901); Fenton v. Em-blers, 3 Burr. 1278, 97 Eng. Rep. 831 (1762) ; 1Page, Wills sec. 10.11 (Bowe-Parker Rev. 1960).

36. Boggan v. Scruggs, 200 Miss. 747, 29 So.2d86 (1947).

37. Heine v. The First Trust Company ofWichita, 141 Kan. 370, 41 P.2d 767 (1935).

38. Fred v. Asbury, 105 Ark. 494, 152 S.W.155 (1912) ; Miller v. Carr, 137 Fla. 114, 188 So.103 (1939) ; Rudd v. Planters Bank & Trust Co.,283 Ky. 351, 141 S.W.2d 299 (1940); Brickley v.Leonard, 129 Me. 94, 149 Atl. 833 (1930) ; Dono-van v. Walsh, 238 Mass. 356, 130 N.E. 841 (1921).

39. Wallace v. Long, 105 Ind. 522, 5 N.E. 666(1886); Maloney v. Maloney, 258 Ky. 567, 80S.W.2d 611 (1935) ; Boyle v. Dudley, 87 N.H. 282,179 Atl. 11 (1935).

40. Turnipseed v. Sirrine, 57 S.C. 559, 35 S.E.757 (1900).

TEXAS BAR JOURNAL

41. Cheatham's Ex'r v. Parr, 308 Ky. 175, 214S.W.2d 91 (1948) ; Lemire v. Haley, 91 N.H. 357,19 A.2d 436 (1941); Foster v. Barton, 365 P.2d714 (Okla. 1961); In re Byrne's Estate, 122 Pa.Super. 413, 186 Atl. 187 (1936) (applying therule even though the estate included personalproperty valued at about $70,000 and real estateof only about $3,000); Kessler v. Olen, 228 Wis.662, 280 N.W. 352, rehearing denied, 228 Wis. 662,281 N.W. 691 (1938). The same rule is appliedeven though the contract is for something lessthan the entire estate and could be completelysatisfied out of personalty if the court were will-ing to make an election. Quirk v. Bank of Com-merce & Trust Co., 244 Fed. 682 (6th Cir. 1917) ;Upson v. Fitzgerald, 129 Tex. 211, 103 S.W.2d 147(1937) ; In re Rosenthal's Estate, 247 Wis. 555,20 N.W.2d 643 (1945).

42. Burns v. McCormick, 233 N.Y. 230, 234,135 N.E. 273, 274 (1922).

43. This type of relief is illustrated by the caseof Bryson v. McShane, 48 W. Va. 126, 35 S.E. 848(1900). See also 2 Corbin, Contracts sec. 435(1950) ; Pomeroy, Specific Performance sec. 114(3rd ed. 1926).

44. Grant v. Grant, 63 Conn. 530, 29 Atl. 15(1893) ; Diez v. Rosicky, 145 Neb. 242, 16 N.W.2d155 (1944) (probably not sufficient part perform-ance on any theory).

45. 111 Tex. 122, 229 S.W. 1114 (1921).46. Upson v. Fitzgerald, 129 Tex. 211, 103 S.W.

2d 147 (1937).47. The child was only nine years old when

the contract was entered into. Although he wasnot a formal party to the contract, it was under-stood that he was expected to render to the prom-isee the filial devotion ordinarily expected of anatural child. This he did.

48. Hooks v. Bridgewater, 111 Tex. 122, 128,229 S.W. 1114, 1117 (1921).

49. Fred v. Asbury, 105 Ark. 494, 152 S.W. 155(1912) ; Savannah Bank & Trust Co. v. Wolff, 191Ga. 111, 11 S.E.2d 766 (1940); White v. Smith,43 Idaho 354, 253 Pac. 849 (1926); Nichols v.Reed, 186 Md. 317, 46 A.2d 695 (1946) ; Mathesonv. Gullickson, 222 Minn. 369, 24 N.W.2d 704(1946); McCullom v. Mackrell, 13 S.E. 262, 83N.W. 255 (1900) ; Clark v. Atkins, 188 Va. 668,51 S.E.2d 222 (1949).

50. Hooks v. Bridgewater, 111 Tex. 122, 130-131, 229 S.W. 1114, 1117-1118 (1921).

51. Id. at 128, 229 S.W. at 1116.52. 162 Tex. 144, 345 S.W.2d 267 (1961).53. 345 S.W.2d 857 (Tex. Civ. App. 1961,

R.N.R.E.).54. Id. at 863 (concurring opinion).55. Id. at 864 (dissenting opinion).56. Curry o. Cotton, 356 Ill. 538, 191 N.E. 307

(1934).57. Brought v. Howard, 30 Ariz. 522, 249 Pac.

76 (1926); Gibson v. Crawford, 247 Ky. 228, 56S.W.2d 985 (1932); Busque v. Marcou, 147 Me.289, 86 A.2d 873 (1952) ; Holsz v. Stephen, 36211. 527, 200 N.E. 601 (1936) ; Hathaway v. Jones,48 Ohio App. 447, 194 N.E. 37 (1934); Southernv. Kittredge, 85 N.H. 307, 158 Atl. 132 (1932);Anderson Estate, 348 Pa. 294, 35 A.2d 301(1944) ; White v. McKnight, 146 S.C. 59, 143 S.E.552 (1928) ; Upson v. Fitzgerald, 129 Tex. 211,103 S.W.2d 147 (1937) ; Hale v. Hale, 90 Va. 728,

19 S.E. 739 (1894) ; In re Edwall's Estate, 75Wash. 391, 134 Pac. 1041 (1913) ; Canada v. Ihm-sen, 33 Wyo. 439, 240 Pac. 927 (1925).

58. See Mack v. Swanson, 140 Neb. 295, 299N.W. 543 (1941) ; Brown v. Webster, 90 Neb. 591,134 N.W. 185 (1912).

59. There is always a possibility that contrac-tual language might become so blended with tes-tamentary language as to raise doubt as to wheth-er the instrument is a will or a contract andthereby prevent its being upheld as either. Forillustrations of particularly poor drafting seeCurry v. Cotton, 356 Ill. 538, 191 N.E. 307 (1934) ;Spinks v. Rice, 187 Va. 730, 47 S.E.2d 424 (1948).

Property Management(Continued from Page 280)

V. TAX CONSEQUENCES OF PARTI-TION

(a) Tax consequences must be con-sidered in connection with every partitionagreement but this subject is being treat-ed by another speaker and Will thereforenot be covered in this portion of the pro-gram.

VI. POWERS OF THE COURT IN DIVI-SION OF THE ESTATE OF THEPARTIES AND ITS EFFECT UPONSETTLEMENT

(a) Statutory authority is contained inArticle 4638 which states, "The court pro-nouncing a decree of divorce shall alsodecree and order a division of the estateof the parties in such a way as the courtshall deem just and right, having due re-gard to the rights of each party and theirchildren, if any. Nothing herein shall beconstrued to compel either party to divesthimself or herself of the title of real es-tate." Hailey v. Hailey, 331 S.W. 2d 299(Tex. 1959) now clarifies the last sen-tence of Article 4638 to mean title to sep-arate real estate.

(b) Considerations in determining di-vision of the estate:

1. Relative fault of the parties.2. Respective ages of the parties.3. Health of the parties.4. Earning capacity of each spouse.5. Size of community estate.6. Need of each party for future sup-

port.7. Benefits the innocent spouse would

have received from continuation of themarriage.

APRIL 1968