Stahmer v. Schley

Opinion

FLEMING, J.

Plaintiffs appeal a judgment dismissing their complaint for quasi-specific performance of an agreement to leave property by joint will and for imposition of a constructive trust. The dismissal followed the sustension of defendant’s demurrer to the complaint without leave to amend. We reverse.

Plaintiffs are the children of Irene Stiehl and are two of the named beneficiaries under the joint and mutual will of Irene and her husband George Stiehl. Defendant is the executor and a beneficiary under a subsequent will of George. Plaintiffs commenced the instant action during the probate of this latter will. Plaintiffs’ complaint alleges that in March 1963 Irene and George orally agreed to make a joint will disposing of their respective estates, and that in execution of that agreement they did make a joint will devising each’s estate to the other and devising the combined estate of the survivor to named beneficiaries, among them plaintiffs. The survivor was named as executor of the joint will. Irene died in July 1970, but George, instead of probating the joint will, kept all the property of both, and in March 1976 executed a new will purporting to dispose of his and Irene’s combined estate to defendant and four other beneficiaries.

[203]

After George’s death in April 1977, defendant filed the 1976 will for probate. In November 1977 plaintiffs brought this action, alleging that “by reason of the execution of the joint and mutual will, and the acceptance by [George] of the benefits, the agreement evidenced by the will became irrevocable and enforceable” against George, who had been estopped from making other disposition of the combined estate. Defendant demurred to the complaint on grounds that, (1) it failed to allege a written agreement not to revoke, and (2) it failed to join as defendants the individual beneficiaries against whom the constructive trust was to be imposed. In March 1978 the trial court sustained the demurrer without leave to amend on the ground that there was “no agreement not to change” the will of the survivor. The court specifically noted that its decision was not based on plaintiffs’ failure to join as parties the beneficiaries under the second will.

A joint will may be revoked by either testator (Prob. Code, § 23). However, when the testators have made a written agreement not to revoke, and the agreement is supported by consideration, equity will enforce the agreement by requiring the recipients of the estate to hold the property in constructive trust for the intended beneficiaries.