Daniels v. Bridges

VALLEE, J.

Appeal by plaintiff from an adverse judgment in a suit for declaratory relief, to establish a constructive trust, and for an injunction.

On May 16, 1946, Eddie and Sarah Robinson, husband and wife, made a joint will by which each of them bequeathed and devised all of his and her property “after the death of the two of us” to plaintiff, Howard C. Daniels. There was no evidence of the making of a written contract by Eddie and Sarah to execute the joint will. Sarah died on August 21, 1946. The joint will had not then been revoked; but it has not been probated. On Sarah’s death, Eddie took possession of all of their property, which included two parcels of realty held by them in joint tenancy. On May 5, 1948, Eddie made a will by which he revoked all former wills and bequeathed and devised all of his property to Mary Louise Webb. On

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May 13, 1948, he married Mary Louise. On August 13, 1950, Eddie died leaving Mary Louise surviving him. Eddie’s will of May 5, 1948, was admitted to probate. His estate has not been distributed. On December 14,1950, Mary Louise died intestate. Defendant is her sole heir and administratrix of her estate.

On the foregoing facts, plaintiff sought a decree (1) declaring his rights under the joint will of May 16, 1946; (2) adjudging that he is the owner of the property bequeathed and devised by that will, subject to administration of Eddie’s estate; (3) adjudging that defendant holds the property in trust for his use and benefit, and that she be required to account for the same; (4) enjoining her from disposing of any of the property; (5) declaring that Eddie’s will of May 5, 1948, is null and void.

The court found that Eddie and Sarah did not make an oral agreement and in performance thereof execute the joint will of May 16, 1946, to the effect that on “their death” all of their property should go to plaintiff, and concluded that Eddie revoked that will by the due execution of the will of May 5, 1948, and that the property became the sole and separate property of Eddie on the death of Sarah. Judgment was entered accordingly. Plaintiff appeals.

Plaintiff’s specifications of error are: 1. The judgment is contrary to law and the evidence, and the findings of fact are not supported by the evidence. 2. The court failed to make findings on material issues. He argues that the will of May 16, 1946, was irrevocable and that the will of May 5, 1948, was of no force or effect. His contentions cannot be sustained.