CITIZENS & SOUTHERN NATIONAL BANK, Executor, et al. v. LEAPTROT et al.; and vice versa., 225 Ga. 783, 171 S.E.2.d 555 (1969)
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Melton, McKenna & House, Andrew McKenna for appellees.Jones, Cork, Miller & Benton, Wallace Miller, Jr., for appellants.
The mutual wills in this case were based on a contract between the parties and such contract is enforceable in equity.
On June 6, 1947, Clarence A. Leaptrot and Minnie G. Leaptrot, husband and wife, executed separate wills with identical provisions. They devised life estates in all their property to each other. Upon the death of the survivor, they devised their respective one-half interests in a parcel of property known as 100 Hardeman Avenue, Macon, Georgia, to the wife's brother Lawrence Self and one-half of the remaining estate to the husband's brothers and sisters and one-half to the wife's named brother.
Items six of the wills recite: "This will is executed as a part of the same transaction by which my wife [husband] is executing her [his] will and the two wills are expressly executed as mutual wills and the provisions of this will with reference to the disposition of my property after my wife's [husband's] death shall not be operative unless her [his] will with reference to the remainder interest in her [his] property is also operative. It is the common desire of my said wife [husband] and of me that such properties as remain from both of our estates after the death of the last survivor shall pass as follows: the fee simple title to the real estate, including the building at 100 Hardeman Avenue, Macon, Georgia, to go to Lawrence Self, the brother of my said wife [my brother] and the remainder for equal division, one-half to my brothers and sisters and one-half to the said Lawrence Self [one-half to the brothers and sisters of my said husband and one-half to my said brother, Lawrence Self]."
Items nine of the wills recite: "If for any reason one-half of the remainder interest in my wife's [husband's] estate, but excepting therefrom the property known as 100 Hardeman Avenue, Macon, Georgia, as provided in her [his] said will does not pass to my brothers and sisters [my brother], then it is my will and desire that the remainder interest in my estate shall pass to my brothers and sisters in equal shares [my brother] and to the exclusion of my wife's brother, Lawrence Self [to the exclusion of my husband's brothers and sisters]."
Clarence A. Leaptrot died on December 27, 1948. His will was probated, and Minnie G. Leaptrot, his executrix, was discharged on June 4, 1951. On September 7, 1961, Minnie G. Leaptrot executed a new and different will in which she devised all of her property to her niece Shirley Ann Self, the daughter of Lawrence Self. Minnie G. Leaptrot died on September 12, 1968. Under Minnie G. Leaptrot's last will of September 7, 1961, the Citizens & Southern National Bank of Macon (hereinafter called Bank) was appointed executor of her estate.
Lawrence Self died testate on March 30, 1959, leaving all his property to his wife Annie Pearl Sumner Self.
A quitclaim deed dated April 30, 1960, was given by Mrs. Annie Pearl S. Self and Shirley Ann Self to Minnie G. Leaptrot for the property located at 100 Hardeman Avenue, Macon, Georgia, the grantors therein being the widow and daughter of Lawrence Self. The property was thereafter sold by Mrs. Minnie G. Leaptrot.
Shirley Ann Self was appointed guardian of Minnie G. Leaptrot on August 8, 1968, by the Court of Ordinary of Bibb County, Georgia, and was discharged on December 2, 1968.
The brother and sister of Clarence A. Leaptrot and the heirs of a deceased brother and sister brought this action against the Bank, as executor of the estate of Minnie G. Leaptrot, as executor de son tort of the estate of Clarence A. Leaptrot, and against Shirley Ann Self. The petition sought: (1) an accounting by the defendant Bank as executor of the estate of Minnie G. Leaptrot, (2) an accounting by the Bank as executor de son tort of the estate of Clarence A. Leaptrot, (3) judgment against the Bank as executor de son tort of the estate of Clarence A. Leaptrot in double the value of one-half of the property and other assets belonging to the estate of Clarence A. Leaptrot as disclosed by said accounting, (4) judgment against the Bank as executor of the estate of Minnie G. Leaptrot for one-half of the value of the remainder estate, and (5) temporary and permanent injunction against the Bank in its representative capacity and Shirley Ann Self restraining the defendants from turning over any of the assets belonging to either estate to Shirley Ann Self prior to a final determination of the issues involved in this case.
The defendants moved to dismiss so much of the plaintiffs' petition which seeks: (1) an accounting from the Bank as executor de son tort of the estate of Clarence A. Leaptrot, (2) judgment against the Bank as executor de son tort of the estate of Clarence A. Leaptrot in double the value of one-half of the property as disclosed by an accounting, (3) judgment against the Bank as executor of the estate of Minnie G. Leaptrot for one-half of the value of the remainder estate.
1. "Mutual wills may be defined as the separate wills of two persons which are reciprocal in their provisions." Lampkin v. Edwards,
The petition avers that they "had entered into an agreement whereby they had executed mutual wills." In our opinion it is clear that the testator and testatrix in the instant case entered into a contract to make mutual wills. The wills recite, "This will is executed as a part of the same transaction by which my wife [husband] is executing her [his] will and the two wills are expressly executed as mutual wills." Most of the property of the testators was owned jointly. There were no lineal heirs. The bequests of the wills divided the property upon the death of the survivor equally between their respective collateral heirs except for the specific bequest of the Hardeman Avenue property. It was a natural and rational agreement based upon mutual promises to devise their property almost equally between the brothers and sisters of the husband on the one hand and the brother of the wife on the other. "Ample consideration for a husband's promise to devise property to his wife for her life, provision to be made for a third person upon the death of the testator, is found in the promise of the wife to make a similar testamentary distribution on her part, where the proof is ample that the wife had property of her own." 169 ALR 1, 33; Webb v. Smith,
We hold, therefore, that the mutual wills were based on a contract between Clarence A. Leaptrot and Minnie G. Leaptrot, that such contract is enforceable in equity, and that the plaintiffs here are entitled to recover thereon.
The portions of the wills stating that, the provisions of this will with reference to the disposition of my property after my wife's [husband's] death shall not be operative unless her [his] will with reference to the remainder interest in her [his] property is also operative" do not require a different conclusion. The word "operative" means "producing an appropriate or designed effect" or "having the power of acting." Webster, Third New International Dictionary. In our opinion it is apparent that the parties were guarding against the possibility of the provisions of either will failing to effect the agreed upon disposition. They did not intend to authorize the invalidation of the entire will by a deliberate act of revocation by the survivor.
Also, the provisions of the wills reciting that, "If for any reason one-half of the remainder interest in my wife's [husband's] estate . . . as provided in her [his] will does not pass to my brothers and sisters [my brother], then it is my will" do not require a different conclusion. Under our holding herein the remainder interest does pass and this provision has no application. The fact that the interest passes under the contract and not under the will would not alter this finding.
Code 53-504 (effective at the time of the execution of the wills but repealed by Ga. L. 1950, p. 174) providing, "No contract of sale by a wife of her separate estate to her husband or trustee shall be valid, unless the same shall be allowed by order of the superior court of the county of her domicile" has no application here. This case does not involve a contract of sale.
The trial court erred in not granting the plaintiffs' motion for summary judgment decreeing that they were entitled to one-half of the remainder estate of Clarence A. Leaptrot and one-half of the remainder estate of Minnie G. Leaptrot. The trial court did not err in denying defendants' motion to dismiss and the motion for summary judgment on the same issues.
2. The plaintiffs contend that the bank is an executor de son tort of the estate of Clarence A. Leaptrot under Code 113-1102. The record shows that Minnie G. Leaptrot was lawfully appointed and discharged as the executrix of the estate of her husband, Clarence A. Leaptrot. She was entitled to a life interest in the property comprising his estate. She necessarily had to possess the property to enjoy it. The evidence shows she was not acting in bad faith nor holding the property wrongfully. The bank, as executor of the estate of Minnie G. Leaptrot, is not an executor de son tort of the estate of Clarence A. Leaptrot. See Robbins v. Riales,
3. Under our ruling in Division 1, it follows that the plaintiffs are entitled to an accounting of the estate of Minnie G. Leaptrot. The trial court erred in not granting their motion for summary judgment decreeing that the defendants furnish an accounting of the estate of Minnie G. Leaptrot. The trial court did not err in denying defendants' motion for summary judgment on the same issue.
Judgment affirmed in part; reversed in part. All the Justices concur.
1969
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