Coffey v. Price , 1963 Okla. LEXIS 341 ( 1963 )

PER CURIAM.

This is an appeal from the findings and decree of the District Court of Beckham County, Oklahoma, finding and decreeing that the mutual and conjoint will made by L. Coffey and Cora Coffey, husband and wife, constituted a binding contract between them, which contract had the effect of severing the joint tenancy title by which they held title to the lands involved in this action, and converted their title to a tenancy in common, effective as of the date of the execution' of the will; and further decreeing that the undivided one-half interest in the land so held by L. Coffey went to his estate at his death.

L. Coffey and Cora Coffey were husband and wife when they acquired title to the following land in Beckham County, Oklahoma :

Northeast Quarter (NEj4) of Section 6, Township 8 North, Range 23, W.I.M., Beckham County, Oklahoma,

and they took title to this land under a joint tenancy with right of survivorship deed dated December 7, 1949.

On March 13, 1957, L. Coffey and Cora Coffey made what is denominated as their mutual and conjoint last will and testament. There are a number of provisions in the will by which Mr. and Mrs. Coffey disposed of all of their property, but Paragraphs Til and IV of the will are the only ones that are pertinent to this case. Paragraph III provides as follows:

“We, and each of us, hereby will, bequeath and devise to the survivor of us the following described properties,, to wit: * * *

“(2) A life estate in and to the Northeast Quarter (NEj4) of Section 6, Township 8 North, Range 23, W.I.M., Beckham County, Oklahoma.”

Paragraph IV provides as follows:

“We, and each of us, agree that the remainder estate in * * * the-Northeast Quarter (NEj4) of Section; 6, Township 8 North, Range 23, W.I. M., Beckham County, Oklahoma, shall go to the children of Isabell Coffey Price, the deceased daughter of L„ Coffey, and their names are as follows:

“Leon Price, Dorothy Waterson, J. L. Price, Betty Buck, and Patricia Lindsey, share and share alike.”

L. Coffey died on the 28th day of August, 1957, and the aforementioned will was-duly probated in the County Court of Beck-ham County, Oklahoma. In these probate proceedings Cora Coffey filed her election not to take under the terms of the will;: and in the decree of distribution, the County Court recognized her election not to take under the will and also her rights as the survivor of the joint tenancy in the above-described lands, and distributed to her the full title to the said Northeast Quarter of Section 6, Township 8 North, Range 23, as such surviving joint tenant.

Leon Price, Dorothy Waterson, J. L„ Price, Betty Buck and Patricia Lindsey, the remaindermen named in said will appealed from the decision and decree of the County Court setting over the full title in the described lands to Cora Coffey. These appellants will hereinafter be referred to as defendants in error and the said Cora Coffey as plaintiff in error.

The assignment of error on appeal to the district court was that the joint and mutual will effected a termination or severance of ihe joint tenancy provision in the deed and that upon the execution of the will each of them became an owner as tenants in common.

On trial de novo in the district court the •court found that the joint tenancy deed to •L. Coffey and Cora Coffey was a valid joint tenancy deed with the right of sur-vivorship, but found “that the will was a •contract between the parties, and was suffi•cient in law to sever the provisions made in the deed with reference to the survivorship •clause.” The court then held that the conjoint will was an agreement and contract between the parties which severed the joint tenancy ownership of the property as of •the date of the will and that thereafter L. Coffey and Cora Coffey each became an •owner of an undivided one-half interest in ■said property. The court then decreed the defendants in error to be the owners of an undivided two-thirds (⅜) interest in the one-half (½) interest in the property which the court found to be in the Estate of L. Coffey, deceased.

The evidence does not disclose any outside agreement or contract leading to the •execution of the will, and the question for •our determination is whether the joint will involved herein, within itself, constitutes a binding contract between Mr. and Mrs. Coffey.

The law is well settled in this jurisdiction that any person executing a conjoint or mutual will with another does so with notice given by 84 O.S.1961 § 52, that such will may be revoked by any of the testators in like manner with any other will. Pauli v. Earlywine, 195 Okl. 486, 159 P.2d 556; Horton v. Cronley, Okl., 270 P.2d 306; Lyons v. Luster, Okl., 359 P.2d 567.

The law is also well settled in this jurisdiction that to attribute to joint will the quality of irrevocability, the burden is upon the beneficiaries claiming thereunder to make affirmative proof of the existence of contract, either by indisputable evidence, or by terms of the will itself. Horton v. Cronley, supra; Lyons v. Luster, supra; Loflin v. Capps, Okl., 327 P.2d 443.

In the present case no evidence of an outside contract, either oral or written, was introduced which led to or pertained to the execution of the conjoint will.

The defendants in error cite and rely on the cases of McDonald v. Morley, 15 Cal.2d 409, 101 P.2d 690, 129 A.L.R. 810; Wardlow v. Pozzi, 170 Cal.App.2d 208, 338 P.2d 564; Carson v. Ellis, 186 Kan. 112, 348 P. 2d 807, and Berry v. Berry’s Estate, 168 Kan. 253, 212 P.2d 283.

These cases are all distinguishable from the present case. The case of McDonald v. Morley, supra, involves a property settlement made before their divorce. The cases of Wardlow v. Pozzi, supra, and Carson v. Ellis, supra, wherein divorce decrees severed joint tenancy by severing unity of possession are not applicable to the facts in the present case.

In the case of Berry v. Berry’s Estate, supra, the Supreme Court of Kansas held the joint and mutual will was contractual. We agree with the opinion in that case because the language in the body of the will clearly shows the will to be contractual and irrevocable. The opinion uses the following language:

“ * * * Here the testators specifically stated: ‘ * ⅜ * it being our desire to jointly dispose of our property in accordance with an agreement reached between us, we, * * * do hereby make, publish and declare this to be our joint and mutual and irrevocable will and we hereby declare it to be contractual. * * * ’ ”

The present will contained no such language.

We are of the opinion and hold that there was no evidence, either oral or written, of sufficient force or effect to constitute a contract such as to prevent the surviving spouse from revoking the conjoint will and taking pursuant to the survivorship provisions of the deed.

The judgment is reversed and the District Court is directed to vacate its judgment and affirm the judgment of the County Court.

HALLEY, V. C. J., and WELCH, DAVISON, JOHNSON, WILLIAMS and JACKSON, JJ., concur. BLACKBIRD, C. J., and IRWIN and BERRY, JJ., dissent.

The court acknowledges the aid of Supernumerary Judge CLYDE M. FOL-LOWELL in the preparation of this opinion. After a tentative opinion was written, the cause was assigned to a Justice of this court. Thereafter, upon report and consideration in conference, the foregoing opinion was adopted by the court.