Allen v. Bromberg , 147 Ala. 317 ( 1906 )

DENSON, J.

The bill in this case was filed to enjoin the probate of a will in the probate court of Mobile county, upon the allegation that its execution was in violation of a contract, made between the testatrix, and her husband, to execute similar wills, with the same executors, each in favor of the other for life, with remainder to certain public charities. The bill avers that the contract was performed upon the part of the husband who died first, and that the testatrix, his wife, accepted the benefits therefrom. It further avers that the testatrix in 1902 made a will in conformity with her contract with her husband, .-but in 1905 had executed the will containing different dispositions, the probate of which is opposed. The persons named as executors in the will of 1905, and the beneficiaries therein, are made parties defendant. The injunction prayed for in the bill was granted. This appeal is from the refusal to dissolve the injunction and to dismiss the bill for want of equity.

It cannot be doubted that a person may make a valid agreement to dispose of his property by will in a particular way, and that a court of equity will require its performance. — Bolman v. Overall, 80 Ala. 451, 2 South. 624, 60 Am. Rep. 107. In the case cited it is said: “It is not claimed, of course; that any court has the power to compel a person to execute a last will and testament carrying out-his agreement to bequeath a legacy; for this can be done only in the lifetime of the testator, and no breach of the agreement can be assumed as long as he lives, and after death he is no longer capable of doing the thing agreed by him. But the theory on which the courts proceed is to construe such agreement, unless void under the. statute of frauds or for other reason, to bind the property of the testator or intestate so far as to fasten a trust on it in favor of the promisees, and to enforce such trust against the. heirs and personal representatives of the deceased or others holding under them charged with notice of the, trust. The courts do not set aside the will in such cases, but the executor, heir, or devisee is made, a trustee to perform the contract.”

' As. a contract for the execution of a will with particular provisions can be specifically enforced only by fastening a trust on the property of the testator in favor of the promisee and enforcing such trust against the personal representatives and others claiming under the will violating the terms of the contract, it is necessary that the will be first probated, “for it cannot be recognized in any forum until admitted to probate.” — Describes v. Wilmer, 69 Ala. 25, 44 Am. Rep. 501. Nor does the fact that the agreement embraced the appointment of the same executors in both wills give equity to the bill. As stated, no breach of the; agreement in any of its parts can be assumed as long as the testator lives, and after his death he is no longer capable of doing the thing agreed upon. Such agreement could be .specifically enforced only by setting aside the latter will and probating the former. This could not be done. A will is in its very nature ambulatory, subject to revocation during the life of him who signed it, and is revoked by the execution of another will. — Code 1896, § 4264. After such revocation it can be revived only by the expressed intention of the testator himself. — Code 1896, § 4266.

For the. reasons above given, a decree will be here rendered dissolving the injunction and dismissing the bill for want of equity.

Haralson, Dowdell, and Anderson, JJ., concur.