Missouri Law Review Missouri Law Review
Volume 41
Issue 1
Winter 1976
Article 18
Winter 1976
Joint and Mutual Wills--Effect of Contract Not to Revoke Joint and Mutual Wills--Effect of Contract Not to Revoke
John M. Mowrer
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Part of the Law Commons
Recommended Citation Recommended Citation
John M. Mowrer,
Joint and Mutual Wills--Effect of Contract Not to Revoke
, 41 MO. L. REV. (1976)
Available at: https://scholarship.law.missouri.edu/mlr/vol41/iss1/18
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RECENT
CASES
.
JOINT
AND
MUTUAL
WILLS-
"EFFECT
OF
CONTRACT
NOT
TO
REVOKE
Owens
v.
Savage
1
Samuel
F.
and
Ida
Alice
Jones,
husband
and
wife,
executed
their
joint
and
mutual
last
will
and
testament
on
March
23,
1959
and
a
codicil
thereto
in
1964.
.These
instruments
contained
an
agreement
not
to
revoke
the
testamentary
dispositions.
Ida
Alice
Jones
died
on
June.
6,
1968.
On
Janu-
ary
11,
1969
Samuel
executed
an instrument
declaring
it
to
be
his
last
will
and
testament
and
therein
expressly
revoked
all
former
wills.
In
this
instrument
Samuel
made
several
small
specific
bequests,,
and
devised
and
bequeathed
all
of
his
remaining
property
according
to
a,
dispositive
scheme
different
from
that
contained
in
the
joint
and
mutual
will.
'Samuel
died
on
May
15,
1971
and
probate
proceedings,,
were
initiated.
Subsequent
to,
these proceedings,
the
legatees
and
devisees.
of
the
joint
and
mutual
will
filed
suit
in
,the
circuit
court
for
declaratory
judgment
and
equitable
re-
lief,
naming
as
defendants
Samuel's
personal
representative,
legatees,
and
devisees.
Plaintiffs
based
their
claim
upon
the
existence
of
a
binding
contractual.
obligation
between
Samuel
and Ida.
The
trial court
found
that
there
was
an
agreement
between
Samuel
and
Ida
tomake
a
joint
and
mutual
will
and
that
the
agreed
testamentary
distribution
constituted
an
irrevocable
contract.
Based
upon
these
findings,
the
trial
court
dedared
that
the
1959
joint
and
mutual
will
could
not be
revoked
by
the
surviving
testator
and
ordered
it
admitted
to
probate.
On
appeal,
the
Kansas
City
District
of
the
Missouri
Court
.of
Appeals
af-
firmed
as'to
the
existence
of
a
binding
and
enforceable
contract
inuring
to
the
benefit
of
the
plaintiffs
and
granted
relief
in
the
nature
of
specific
performance,
but
ordered
stricken
that
portion
of
the
decree
admitting
the
1959
will,
to
probate.
2
The
contract
involved
in
Owens
is
one
of
several
types
which
may
be-
come
involved
with
testamentary
dispositions.
Contracts
to
make
a
will,
contracts
not
to
make
a
will,
contracts
to
revoke
a
will,
and
contracts
not
to
revoke
a will,
each
with
variations,
appear
frequently
in
reported
cases.
Many questions
relating
to
contractual
obligations
and
their
effect
on
testamentary
disposition
have
been definitively
answered,
but
the
effect
of
a
contract
not
to
revoke
testamentary
dispositions
contained
in
a
joint
and
mutual
will
3
has
remained
confused.
In part
this confusion
may
Ee'
attributable
to
the
hesitancy
with
which
courts
recognized
the
validity
of
1.
518
S.W.2d
192
(Mo.
App.,
D.K.C.
1974).
2.
Id.
at
199-201.
3.
As
used
herein
the
term
"joint
will"
means
one
where
the
same
instru-
ment
is
made
the
will
of
two
or
more persons
and
is
jointly
signed
by
them.
The
term
"mutual
wills"
means the
separate
wills
of
two
persons
-which
are
reciprocal
in
their
provisions.
See
Curry
v.
Cotton,
356
111.
538,
543,
191
N.E.
307,
309
(1934);
American
Trust
and
Safe
Deposit
Co.
v.
Eckhardt,
331
Ill.
261,
-264,
162
N.
843,
845
(1928).
See
generally
Eagleton,
Joint
and
Mutual
Willy,
Mutual
Promises
to Devise
as
a
Means
of
Conveyancing,
15
CoRNrm
L.Q.
358
(1930);
Partridge,
The
Revocability
of
Mutual
or
Reciprocal
Wills,
77
U.
PA.
L.
Rnv.
357
(1929).
1976]
1
Mowrer: Mowrer: oint and Mutual Wills--Effect of Contract Not to Revoke
Published by University of Missouri School of Law Scholarship Repository, 1976
MISSOURI
LAW.REVIEW
a
testamentary
instrument
purporting
to
be
the
will
of
two
or
more
per-
sons.
4
The.
more
persuasive
reason
for
the
confusion
is
that a
testamentary
instrument
executed
pursuant
to,
or
embodying,
a
contract
not
to revoke
gives
rise
to
a
conflict
of
legal
concepts.
The
conceptual
nature
of
wills
is
that
they
are
ambulatory
until
the
death
of
the testator.
5
An
equally
strong
hallmark
of
contract
law
is
that
enforceable
rights'are
created
at
the
making
of a
contract.
6
It
is
in
dealing
with
the
"hybrid" relationship,
resulting
from combining the
elements of
contracts
and
wills,
that
confusion
was
created
and
remains.
Contractual'and
testamentary
principles
are
brought
sharply
into
c6nflict
when
a
joint
and
mutual
will
embodying
a
contract
not
to
revoke
is
unilaterally
revoked
by
the
surviving
testator.
7
In
dealing
with
this
con-
flict
some
courts
have
given preference
to
the
contractual
principles
by
holding
a
contract
not
to
revoke
is
not
only
enforceable,
but
operates
to
deprive
the
will
of
its
ambulatory
nature.
8
The
will
is
thus
deemed
ir-
revocable
after
the
death
of
one
of
the
testators
and
an
attempted
revoca-
tion
by
the
sftrviving
testator
is
without
effect.
Cases
so
holding
often
Missouri
courts,
while
not
totally
consistent
in
the
use
of
terms,
seem
to
have
settled
upon
the-use
of
.the
term
"joint
and
mutual"
to
denote
a
single
document
containing
testamentary dispositions
of
two
testators,
with
the
dispositions being
reciprocal
in
nature.
This
terminology
may
not
be
semanticall
pure,
but
in
light
of
its
use
in Owens'and
other
cases
it
will
be
used
in
this
note.
4.
See,
e.g.,.
Darlington
v.
Pulteney,
1
Cowp.
260,
98
Eng.
Rep.
1075
(K.B.
1775)
(Lord
Mansfield
stated
"there
cannot
be a
joint
will");
Hobson
v.
Black-
burn,
1
Add.
274,
162
Eng. Rep.
96
(Ecci. 1822)
(mutual
or "conjoint"
will
is
an
instrument
"unknown
to
the testamentary
law
of
this
country").
For
American
cases
refusing
to
probate
joint
wills,
see
Shackleford
v. Edwards,
278
S.W.2d
775
(Mo.
1955);
Clayton
v.
Liverman,
2
N.C.
558
(1837);
Walker
v.
Walker,
14
Ohio
St.
157
(1862).
See
also
B.
SPAmus,
COr
TRAcrs
To
MAar
WiLLs
3
(1956)
[herein-
after
cited
as
SPARKS].
5.
See,
e.g.,
Owens
v.
Savage,
518
S.W.2d
192,
200
(Mo.
App.,
D.K.C.
1974);
Starks
v.
Lincoln,
316
Mo.
483,
488,
291
S.W.
132,
134
(1927);
Edson
v.
Parsons,
155
N.Y.
555, 568,
50
N.E.
265,
268
(1898).
6.
See
1
S.'WILLISToN,
CorrraAcrs
1
-(rev.
ed.
1938).
7.
The
contract
involved
may
arise
in
several
ways.
A
minority
of
jurisdic-
tions
adhere to
the
view
that
the
mere
execution of
a
joint
will
with
reciprocal
provisions
gives
rise
to
a
contract
not
to
revoke.
See,
e.g.,
Frazier
v.
Patterson,
243
IIl.
80,
90
"N.E.
216
(1909),
cf.
Tutunjian
v.
Vetzigian,
299
N.Y.
315,
87
N.E.2d
275
(1949),
Missouri
joins
the majority
holding
that
mere execution
of
such
a
will
does
not
per
se
create
such
a
contract.
See,
e.g.,
Plemmons
v.
Pember.
ton,
346
Mo.
45,
"139
'S.W.2d
910
(1940),
citing
the
"general
rule"
of
Clements
v. Jones,
166
Gb-
738,
742,
144
S.E.
319, 322
(1928);
Wanger
v.
Marr,
257
Mo.
482,
165
S.W.
1027
(1914).
In
jurisdictions
following
the
majority
view
a
contract
not
to revoke may be
oral,
contained
within the
testamentary
instrument, or
set
forth
in
a
separate
document.
See
Comment,
Contracts
to
Make
Joint
or
Muttial
Wills,
55
MARQ.
L.
REv.
103,
108-33
(1972).
.
As
to
revocation
of
a
contract
not
to
revoke
prior
to
the
death
of
either
of
the
contracting
parties, the
weight of
authority
reaches
the
conclusion
that
the
contract
is
irrevocable
except
by
mutual
consent
of
both
parties
to the
contract.
See
SpAmns,
supra
note
4,
at
111.
See
generally,
Note,
Contracts
Not
to
Revoke
joint
or Mutual
Wills,
15
WM.
&
MARY
L.
Rxv.
144
(1973).
8.
See,
e.g.,
Frazier
v.
Patterson
243
Ill.
80,
84-86,
90
N.E.
216, 218
(1909);
Stewart
v.
Shelton,
•356
Mo.
258,
201
S.W.2d
395
(1947).
See
also
SPAnxS,
supra
note
4, at
111-15.
[Vol;
41
2
Missouri Law Review, Vol. 41, Iss. 1 [1976], Art. 18
https://scholarship.law.missouri.edu/mlr/vol41/iss1/18
RECENT
CASES
appear
to
treat
the
rights
under
the
will
and
the
preexisting
contract
rights
as
being
identical.
This
deprivation
of
the ambulatory
qualities
of
a
will'has
been
widely
criticized
as
violating
basic
testamentary
law.
9
The
better
reasoned
view
would
seem
to
be
that,
notwithstanding
a
contract
not
to
revoke,
the
survivor
may subsequently
revoke
the
will
thereby
rendering
it
ineligible
for
probate
as
his
last
will
and
testament.'
0
By
adhering
to
this
approach,
a court
is
not
put
in
the
undesirable
position
of
probating
an
instrument
it
knows
the testator
did
not
intend
as
his
last
will
and
testament.
This
approach
also
avoids
what
the
Owens
court
referred
to
as
"[a]
miscegenation
of
the
law
of
contracts
and
law
of
wills
..
.
when
courts
state
wills
are
irrevocable.""l
The
Missouri
courts'
position
with
respect
to
the
effect
of
a
contract
not
to
revoke
testamentary
dispositions
contained
in
a
joint
and
mutual
will
has
not
been
clear
or
consistent.
Through
loose
and
sometimes
con-
tradictory
language,
two
lines
of
cases
emerge.
Some
cases,
failing
to
de-
lineate
between
contractual
and
testamentary
principles,
have
held
a
later
revoking
will
"void'
21
or
the
joint
and
mutual
will
"irrevocable."'
1
The
second
line
of
cases,
which
Owens joins,
holds
that,
notwithstanding
a
contract
not
to
revoke,
the
joint
and
mutual
will
retains
its
ambulatory
nature
and
is
denied
probate
as
the
last
will
and
testament.'
4
Cases
upholding
the
revocable
nature
of
joint
and
mutual
wills,
even
in
the
presence
of
a
contract
not
to
revoke,
do
not
necessarily
deny
relief
to
the
devisees
and
legatees
of
the
revoked
will.
These
cases
grant
relief
relying
upon
the
third
party
beneficiary
doctrine of
contract
law
rather
than
the
probate
of
a revoked
will,
and
indicate
that
the
aggrieved
con-
tract
beneficiary
may
have
a
remedy
at
law
or
in
equity.'
6
While
cases
and
commentators
indicate
the
availability
of
either
legal
or
equitable
relief,
the
vast
majority
of
the
cases
involve
equitable
relief.
The
preponderance
of
equitable
proceedings
is
partially
explainable
be-
cause
of
the
operation
of
the
Statute
of
Frauds'
6
and
the
equitable
doc-
9.
See
generally
T.
ATKINSON,
ATKINSON
ON
WILLs
224
(2d
ed.
1953);
SPAMES,
supra
note
4,
at
111;
Eagleton,
Joint
and
Mutual
Wills:
Mutual
Promises
to
Devise
as
a
Means
of
Conveyancing,
15
CORNELL
L.Q.
358,
367
(1930).
10.
See,
e.g.,
Menke
v. Duwe,
117
Kan.
207,
230
P.
1065 (1924);
Irwin
v.
First
Nat'1
Bank,
212
Or.
534,
321
P.2d
299
(1958);
Owens
v.
Savage,
518
S.W.2d
192
(Mo.
App.,
D.K.C.
1974);
Church
of
Christ
Home for
Aged,
Inc.
v.
Nashville
Trust
Co.,
184
Tenn.
629,
202
S.W.2d
178
(1947);
Shawver
v.
Parks,
239
S.W.2d
188
(Tex.
Civ.
App.
1951);
Hobson
v.
Blackburn,
1
Add.
274,
162
Eng.
Rep.
96
(1822).
11.
518 S.W.2d
at
200.
12.
Ragsdale
v.
Achuff,
324
Mo.
1159,
1175,
27
S.W.2d
6,
13
(1930).
13.
See,
e.g.,
Wimp
v.
Collett,
414
S.W.2d
65,
75
(Mo.
1967);
Stewart
v.
Shelton,
356
Mo.
258,
201
S.W.2d
395,
399
(1947).
14.
Owens
v.
Savage,
518 S.W.2d
192
(Mo.
App.,
D.K.C.
1974);
Plemmons
v.
Pemberton,
346
Mo.
45,
139
S.W.2d
910
(1940);
Starks
v.
Lincoln,
316
Mo.
483,
291
S.W.
132
(1927);
Green
v.
Whaley,
271
Mo.
636,
197
S.W.
355
(1917).
15.
See, e.g.,
Curry
v.
Cotton,
356
Ill.
538,
191
N.E.
307
(1934);
In
re
Farley's
Estate,
237
Iowa
1069,
24
N.W.2d
453 (1946);
Clark
v.
Cordry,
69
Mo.
App.
6
(K.C.
Ct.
App.,
1897).
16.
§
432.010,
RSMo
1969.
1976]
3
Mowrer: Mowrer: oint and Mutual Wills--Effect of Contract Not to Revoke
Published by University of Missouri School of Law Scholarship Repository, 1976
MISSOURI
LAW
REVIEW[
trine of
part
performance.
A
large
number
of
the
reported
decisions
in-
volve
either
oral
agreements
or
vague
agreements
contained
within
the
testamentary
instrument.
17
As
a
result,
in
an
action
at
law
the
plaintiff
faces
the
risk of
the
Statute
of
Frauds
acting
to
make
the
agreement
un-
enforceable.'
s
This
risk
is
largely
negated
at
equity
through
the
doctrine
of
part
performance.'
9
Additionally,
due
to
the
nature
of
the
property
in-
volved,
the
plaintiff
often finds
it
difficult
to
ascertain
damages
and
pre-
fers
to
receive
title
to
the
property
as
opposed
to
the
monetary
equivalent.
20
One
advantage
an
action
at
law may have
over
the
equitable
remedy
is
a
lesser
degree
of
proof
required
with
respect
to
the
existence
of
a
con-
tract.
2
1
17.
See,
e.g.,
Wimp
v.
Collett,
414
S.W.2d
65
(Mo.
1967);
Plemmons v.
Pember-
ton,
886
Mo.
45,
189
S.W.2d
910
(1940).
Section
2-107
of
the
Uniform
Probate
Code
lessens
some
problems
in
this
area
by
providing
three
exclusive
methods
of
establishing
a
contract
not
to
revoke
a
will,
all
of
which
require
a
signed
writing.
The
Uniform
Probate
Code
section,
now
in
force
in
a
number
of
states,
has
been
recommended
for
enactment
by
the
Board
of
Governors
of
the
Missouri
Bar
and
has
been
introduced
in
the
1976
Missouri
General
Assembly.
18.
The
Missouri
Statute
of Frauds,
which
is
based
on
section
4
of
the
English
Statute
of
Frauds
of
1676,
29
Car.
2,
c.
8,
requires
a
signed
writing
to
support
an
action
"upon
any
contract
made
for
the
sale
of
lands,
tenements,
hereditaments,
or
an interest
in
or
concerning
them....
" §
482.010,
RSMo
1969.
It
has been
held
applicable
to contracts
relating
to a
devise
of
land
or of
land
and
chattels.
See,
e.g.,
Shaw
v.
Hamilton,
846
Mo.
866,
141
S.W.2d
817
(1940);
Buxton v.
Huff,
254
S.W.
79
(Mo.
1928);
Ver
Standig
v.
St.
Louis
Union
Trust
Co., 228
Mo. App.
1242,
62
S.W.2d
1094
(St.
L. Ct.
App.
1983).
The
Statute
of
Frauds
has
been
held
inapplicable
to a
contract
relating
to
a
bequest
of
chattels
only.
See
generally
Schnebly,
Contracts
to
Make Testamentary
Dispositions
as
Af-
fected
by
the
Statute
of
Frauds,
24
MIcH.
L.
REv.
749
(1926).
Some
states have
ex-
press
provisions
relating
to
contracts
to
devise
or
bequeath
or
to
refrain
from
doing
so.
MAss.
GEN.
LAws.
ANN.
ch.
259
§
5A
(1965);
N.Y.
GEN.
OBLiG. LAW
§
5-701
(McKinney Supp.
1975);
Omo
Rxv.
CODE
ANN.
§
2107.04
(1968).
19.
See
generally
J.
CALrA.aR,
CONTRArs
§
296
(1970).
For
a
discussion
of
the
history
and
basis
of
the
doctrine
of
part
performance,
see
Moreland,
Statute
of
Frauds
and
Part
Performance,
78
U.
PA.
L.
REV.
51
(1929).
As
to
what
sort
of
part
performance
takes
an
oral
contract to
devise
or
not
to
revoke
a will
out
of
the Statute
of
Frauds,
see
Mills
v.
Bergbauer,
452
S.W.2d
287
(Mo.
1970)
(son's
moving
back
to farm
upon
father's oral
promise
to
devise
held
sufficient);
Shaw
v.
Hamilton,
846
Mo.
866,
141
S.W.2d
817
(1940)
(husband's
execution
of will
to
heirs
of
wife
insufficient
where
there
was
an
alleged
oral
contract
between
husband
and
wife
to
make
wills
in
favor
of
heirs of
other);
Ver
Standig
v.
St.
Louis
Union
Trust
Co.,
844
Mo.
880, 129
S.W.2d
905
(1939)
(alleged
oral contract
to
devise
for
services
rendered,
evidence
of
services
rendered
held
sufficient
per-
formance
for
enforcement
of
contract);
Clark
v.
Cordry,
69
Mo.
App.
6
(K.C.
Ct.
App.
1897)
(oral
agreement
whereby
plaintiff
agreed
to board
and
lodge
de-
fendants
deceased
in
return
for
promise
to
bequeath
$2000,
held
sufficient
per-
formance
to
render
the Statute
of
Frauds inapplicable).
20.
See
Eagleton,
Joint
and
Mutual
Wills:
Mutual
Promises
to
Devise
as
a
Means
of
Conveyancing,
15
CORNELL
L.Q.
858,
868
(1980).
21.
Day
v.
Blackbird,
881
S.W.2d
658
(Mo.
1960),
was
a
suit
in
equity
seek-
ing
specific
performance of
an
alleged
contract
to make a
will.
The
Missouri
Su-
preme
Court
held
that
proof
of
the
existence
of
such
a
contract
must
be
beyond
a
reasonable
doubt.
Within
two
weeks
of
the
above decision
the
St.
Louis
Court
of
Appeals
decided
Reighley
v.
Fabricius' Estate,
832
S.W.2d 76
(St.
L.
Mo. App.
1960),
an
action
at
law
for
breach
of
contract
to
bequeath
a
definite
sum.
The
court
required
the
proof
of
the
contract
to
be
only
by
a
preponderance
of
the
[Vol.
41
4
Missouri Law Review, Vol. 41, Iss. 1 [1976], Art. 18
https://scholarship.law.missouri.edu/mlr/vol41/iss1/18
RECENT
CASES
Statutes
regulating
the
time
within
which
claims
must
be
filed
against
decedents'
estates
may
also
frustrate
the
plaintiff's
action
at
law
for
dam-
ages.
It
would
appear
that
the
type
of
remedy
pursued
by
the
plaintiff
can
be
determinative
of
the
applicability
of
a
nonclaim
statute.
2
2
If
the
beneficiary
of
a
contract
not
to
revoke
is
seeking
damages
at
law, then
the
nonclaim
statute
applies.
23
However,
if
the
remedy
sought
is
specific
performance,
then
the
plaintiff
is
not
making
a
claim against
the
estate
so
as
to
be
within
the
scope
of
the
nonclaim
statute;
he
is
claiming
title
to
the
property,
and
in
fact,
the
property
he
is
claiming
is
itself
subject
to
claims
against
the
estate.
2
4
If
the
decedent's
dispositive
scheme,
either
that
contained
in
a
later
revoking
will
or
provided
by the
intestate
succession
laws,
is
inconsistent
with
the
terms
of
the
contract,
specific
performance
of
the
contract
may
be
granted.
g
It
is
the
contract
that
creates
the
right
upon
which
the
con-
tract
beneficiary's
action
is
based;
the
revoked
joint
and
mutual
will
is
relevant
only
in
establishing
the
terms
of
the
contract.
26
In
an
action
for
specific
performance
the
contract
beneficiary
should
name
as
defendants
the
surviving
testator's
personal
representative,
legatees
and
devisees,
or
distributees
and
heirs-at-law.
27
A
decree
of
specific
performance
does
not
affect
the
administration
of
the
estate
as
to the
payment
of claims
and
ex-
penses;
28
it
merely
acts
at
the
time
of
distribution
to
transfer
title
to
the
contract
beneficiary.
2 9
evidence.
See
Fratcher,
Trusts
and
Succession
in Missouri,
25
Mo.
L.
REv.
417,
425
(1960).
22.
SPARms,
supra
note
4,
at
184.
The
Missouri
nonclaim
statute
provides
that
a
claim
is
lost
if
the
claim
or
notice
of
action
is
not
filed
in
the
probate
court
within
six
months
after
first
publication.
§
473.360,
RSMo
1969.
23.
Abrams
v.
Schlar,
27
Ill.
App.
2d
237,
169
N.E.2d
583
(1960)
(plain-
tiff
beneficiaries
of
promise
to
leave
them
share
of
decedent's
estate
had
remedy
at
law
in
the
nature
of
a
claim
against
the
estate
and
should
have
filed
claim
in
the
probate
court
within
the
time
set
out in
the
nonclaim
statute);
contra,
O'Connor
v.
Immele,
77
N.D.
346,
43
N.W.2d
649
(1950)
(claim
of
a
beneficiary
under
a
revoked
will
is
not
a
claim
against
the
estate).
24.
The
decree
in
Owens
supports
this
view.
518
S.W.2d
at
201.
In
Mills
v.
Bergbauer,
452
S.W.2d 237
(Mo.
1970),
the
Missouri
Supreme
Court
held
that
the
title
decreed
to
be
in
the
beneficiary
of
a
contract
to
devise
shall
be
subject
to
claims
properly
allowed
by
the
probate
court
and
costs
incurred
in
the
adminis-
tration
of
the
estate.
25.
See,
e.g.,
Wimp
v.
Collett,
414
S.W.2d
65
(Mo.
1967);
Bennington v.
McClintick,
253
S.W.2d
132
(Mo.
1952);
Plemmons
v.
Pemberton,
346
Mo.
45,
139
S.W.2d 910
(En
Banc
1940).
See
generally
SPARs,
supra
note
4,
at
22-38.
26.
The
most
vigorously
litigated
aspect
of
such
contracts
has
been
the
proof
requirements
to
establish
the
existence,
rather
than
the
validity,
of
the
contract.
The
proof
requirements
and
cases
are
considered
in
Wimp
v.
Collett,
414
S.W.2d
65,
76
(Mo.
1967).
See
also
note
21
supra;
Eagleton,
Joint
and
Mutual
Wills:
Mutual
Promises
to
Devise
as
a
Means
of
Conveyancing,
15
CoRNEM
L.Q.
358,
367
(1930).
27.
See
Silvester's
Case,
79
Eng.
Rep.
1248
(1619).
28.
See
note
24
and
accompanying
text
supra.
See
also
SPAmus,
supra
note
4,
at
152.
29.
See
Adams
v.
Moberg,
356
Mo.
1175,
205
S.W.2d
553
(1947)
(detailing
the
proper
form
of
decree
to
transfer
legal
title to
the
beneficiaries).
1976]
5
Mowrer: Mowrer: oint and Mutual Wills--Effect of Contract Not to Revoke
Published by University of Missouri School of Law Scholarship Repository, 1976
MISSOURI
LAW
REVIEW
Relief
predicated
upon
specific
performance
has
not
been
the
ex-
clusive
equitable
remedy
relied
upon
by
Missouri
plaintiffs.
There
is
au-
thority
to
support
granting
injunctive
relief
to
prevent
a
surviving
testator
from
disposing
of
his
property
in
violation
of
the
contractual
rights
of
the
contract
beneficiaries.
3
0
Pleas
invoking
the
declaratory
judgment
act
have
also
been
recognized.
In
Stewart
v.
Shelton
3 l
the
beneficiaries
of
a
joint
and
mutual
will
executed
by
husband
and
wife
sought
to
set aside
deeds
executed
by
the
wife
after
the husband's
death.
The
court
held
that
a
"justiciable
controversy"
within
the
declaratory
judgment
statute
was
presented.
It
would
seem
that
under proper
circumstances
equity
can
also
entertain
an
action
for
an
accounting
32
and
can
award
damages.
33
The
court
in
Owens
held
that
the
joint
and
mutual
will
and
the
codi-
cil
thereto constituted
a
binding
and
enforceable
contract
inuring
to
the
benefit
of
the plaintiffs.
Relief
was
afforded
through
a
decree
in
the
nature
of
specific
performance.
The
defendants
were
ordered
to
"convey,
transfer,
and
deliver"
the
plaintiffs'
shares
under
the
contract
as
set
forth
in
the
joint
and
mutual
will
"subject
only
to
the
payment
of debts,
claims,
taxes,
and
costs
of
administration
according
to
law."
3
4
In
the
final
analysis
the
plaintiffs
received
what
they
would
have
received
but
for
Samuel's
revoca-
tion
of
the
joint
and
mutual
will
and
codicil.
Much
of
the
confusion
with
respect
to
joint
and
mutual
wills
exe-
cuted
pursuant
to
or
embodying
a
contract
not
to
revoke
stems
from
a
failure
to
distinguish
the
testamentary
aspects
of
the
instrument
from
the
contractual
aspects.
Upholding
the ambulatory
nature
of
wills
while
de-
creeing
the contract
specifically
enforceable
retains
intact
fundamental
concepts
in
both
fields
of
law
while
affording
relief
to
the
injured
parties.
Although
the
wise
practitioner
may
continue
to
avoid
drafting
joint
and
mutual
wills,
35
the
Owens
holding
has
removed
some
of
the
confusion
and
added
a
much-needed
degree
of
certainty
as
to
the
effect
of
a
con-
tract
not
to
revoke
testamentary
dispositions.
JOHN
M.
MowRER
30.
See Bower
v.
Daniel,
198
Mo.
289,
95
S.W.
347
(1906),
overruled
on
other
grounds,
Wanger
v.
Marr,
257
Mo.
482,
492-93,
165
S.W.
1027,
1080-31
(1914).
See
generally
Comment,
The
Interim
Nature
of
Property
Passing
Under
Joint
and
Mutual
Wills,
20
BAYLOR
L.
REv.
102,
102-12
(1968).
31.
356
Mo.
258,
201
S.W.2d
395
(1947).
32.
-
Cf.
Von
Wilmowsky
v.
Prindle,
225
App.
Div.
597,
234
N.Y.S.
18
(1929).
33.
In
situations
where
specific
performance
would
be
impossible
equity
may
award
monetary
damages.
This
follows
from
the
fact
that
once
equity
has
taken
jurisdiction,
full
relief
will
be granted.
Elliott
v.
Richter,
496
S.W.2d
860
(Mo,
1973).
34.
518
S.W.2d
at
201.
35.
See
generally
PErrSON
&:
EcKHADT,
Legal
Forms,
7
Mo.
PRACric
SEuEs,
476
(1960);
Fingar,
Joint,
Mutual
and
Reciprocal
Wills,
94
TRusTs
AND
EsrAras
782,
786
(1955);
Sparks,
Contracts
To
Devise
or
Bequeath
As
An
Estate
Planning
Device,
20
Mo.
L.
Rxv.
1,
5
(1958).
[Vol.
41
6
Missouri Law Review, Vol. 41, Iss. 1 [1976], Art. 18
https://scholarship.law.missouri.edu/mlr/vol41/iss1/18
