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Probate of will. Gordon Superior Court. Before Judge Davis.
JORDAN, Justice.
1. A will executed pursuant to a valid contract between the testator and his former wife may be revoked by the testator in a subsequent will, while the contract itself may remain binding upon the parties.
2. The rights and liabilities of the parties to such a contract are not before us in this litigation.
C. M. Jones and his wife Mary Norton Jones entered into a separation agreement in writing on February 18, 1942, under which C. M. Jones agreed, among other things, to execute a will providing that Mary Norton Jones and their daughter Betty Anne Jones "would each receive a child's part, sharing and sharing alike with any other children or heirs" of said C. M. Jones at his death, it being understood and agreed that "said provision in such will is to be irrevocable and binding" on C. M. Jones.
Pursuant to this agreement on February 19, 1942, C. M. Jones executed a will, Item 2 of said will reading as follows: "To my estranged wife, Mrs. Mary Norton Jones, I give and bequeath a child's part in my estate." Item 3 of said will was as follows: "To my daughter Betty Anne Jones and any child or children that may be in the future born to me, the rest and residue of my estate, share and share alike."
C. M. and Mary Norton Jones were divorced on August 24, 1942, said contract of February 18, 1942, being incorporated in said decree and made a part of the judgment of the court.
C. M. Jones married Helen B. Jones on September 4, 1943, and they lived together as man and wife until the death of C. M. Jones on April 30, 1971. On January 18, 1956, C. M. Jones executed another will in which he expressly revoked any prior will and named his wife Helen B. Jones as the principal legatee and executrix. Certain stock bequeathed to Betty Anne Jones appeared to be worthless at the time of his death. No mention was made of his former wife Mary Norton Jones.
Mary Norton Jones died March 30, 1971, and her daughter Betty Anne Jones was named the executrix of her estate.
Upon the death of C. M. Jones on April 30, 1971, Helen B. Jones submitted the 1956 will to the Court of Ordinary for probate. Betty Anne Jones, in her individual capacity and as the executrix of her mother's estate, filed a caveat thereto and by subsequent amendment submitted the 1942 will of C. M. Jones for probate. After hearing extensive evidence as to the circumstances surrounding the execution of the two purported wills, the Ordinary of Gordon County entered an order establishing the 1942 will as the last will and testament of said C. M. Jones and admitted the same to record as such. Upon appeal to the Superior Court of Gordon County the parties stipulated that the entire transcript of the proceedings in the Court of Ordinary would comprise the record in the Superior Court. On March 21, 1973, the trial judge entered an order reversing the decision of the Court of Ordinary and ordered that the 1956 will be established as the last will and testament of C. M. Jones. From such order the appellant Betty Anne Jones filed her appeal to. this court.
1. The question presented here is whether a will made pursuant to an agreement between a husband and wife, said agreement being incorporated into the divorce decree between them, can be revoked by a subsequent will or by operation of law. We have concluded that such a will can be revoked by a subsequent will and that the trial court was correct in so holding in this case.
Our statutes amply provide for the revocation of a will, expressly providing that a will, having no effect until death, is necessarily revocable "at any time before . . . death"; even a mutual will with a covenant against revocation (Code 113-401). Revocation may be express or implied (Code 113-402); by destruction or obliteration (Code 113-404); by inconsistent provisions of a will (Code 113-407); by marriage of the testator, total divorce, or birth of a child (Code Ann. 113-408). We know of no exceptions to these statutory methods of revocation and none are embedded in the statutes.
In Simpson v. Dodge, 220 Ga. 705 (141 SE2d 532), this court had for decision the question of whether a will made pursuant to a fully executed valid contract would be revoked by the marriage of the testator subsequent to the making of the will in which no provision was made in contemplation of the marriage. The question was answered in the affirmative, citing Code Ann. 113-408, and saying, "The Code makes no exception to the rule. The parties to the contract are charged with knowledge of the law. Thus the stepchildren knew or are charged with knowing at the time they entered into the contract with their stepfather, that if the will made pursuant to their contract contained no provision made in contemplation of his remarriage, his marriage would revoke the will. They knew further that he was free to remarry. Their contract simply did not protect them in case their stepfather remarried." Simpson v. Dodge, supra, p. 706. Likewise in this case the parties were charged with knowledge of Code 113-401 providing that a will is of no effect until the death of the testator and that any will is revocable at any time before death. A will does not confer any present right or estate at the time of its execution and has been compared to an undelivered deed. Payne v. Payne, 213 Ga. 613, 614 (100 SE2d 450).
When a testator executes a valid will containing a clause expressly revoking all former wills made by him, such revocation takes effect immediately. Cash v. Cash, 212 Ga. 416 (93 SE2d 346).
We must keep in mind that a "contract" to make a will and an executed "will" are two separate and distinct instruments. They do not merge into one; each stands upon and is governed by different principles of law. For instance, a contract is binding upon the parties at the time it is executed. A will, though fully executed, is not effective or binding upon the testator until death.
There is no serious question here but that the agreement entered into between C. M. Jones and his former wife in 1942 is a valid and binding contract. "Contracts under which one of the contracting parties agrees with the other, for a valuable consideration, that he will make a will giving to the other property, either real or personal, have been enforced in America from the earliest times, and the validity of such contracts seems now to be beyond all doubt." Harp v. McGehee, 179 Ga. 836 (1a) (177 SE 244). Such an agreement will be enforced even though oral. Napier v. Trimmer, 56 Ga. 300; Zachos v. C & S Nat. Bank, 213 Ga. 619 (100 SE2d 418). Where a will is made pursuant to such an agreement, even if revoked, such revocation does not avoid the agreement which is binding on the parties. Cagle v. Justus, 196 Ga. 826 (28 SE2d 255).
"Under the foregoing rule, if there is a breach of any agreement, whether to devise or not to devise, an aggrieved party, or his representative, is not without a remedy. He or his representative, in a proper case, may recover upon quantum meruit, or for damages, or for specific performance, with tracing of funds, whichever remedy is appropriate." Thomas v. Roughton, 227 Ga. 127, 131 (179 SE2d 62).
While no Georgia case has been found with the precise facts of this case, the result we reach is in accord with the general rule. In In re Higgins' Will, 264 N. Y. 226 (190 NE 417) it was held that though a testator may have bound himself by contract to a different disposition of property, such would not permit withholding a subsequent will to probate and that the prior joint will was revoked by the later will. In In re Lieurance's Estate, 181 Ore. 646, 668 (182 P2d 969) it was said that it is no objection to the probate of a will that it violates such an agreement or revokes a former will made in pursuance of it, and that while the former will is revoked as a will it still stands as evidence of the contract. The Oregon Court concluded "In short, a contract to make a will, when based upon sufficient consideration, is irrevocable, although the will which was executed pursuant to it remains revocable." See also, 94 CJS 884-887, Wills, 122.
The appellant strongly and mainly relies on the case of Lowe v. Bryant, 30 Ga. 528 (76 AD 673). There the deceased entered into an oral pre-nuptial agreement with his fiancee that the property which he received from her on the marriage he would give to her and the children of the marriage by will; that after marriage he executed such a will and immediately afterwards, by a codicil, changed the disposition of the property so as to give his wife only a life estate in the property. The court held that upon the execution of the will, the agreement became fully executed (thus taking the parol agreement out of the statute of frauds), and "excluded him from making any subsequent disposition by codicil or otherwise, that would defeat the agreement, and it [the agreement] must be enforced." (Emphasis supplied). The holding in that case does not infer that the will itself could not be revoked, but does hold that once an agreement to devise becomes fully executed that it cannot be defeated by a codicil or subsequent will. See 1 Redfearn, Wills and Administration in Georgia, p. 40, 15.
Thus we conclude that the 1942 will, though executed pursuant to a valid contract, was revoked by the revocation clause in the 1956 will.
2. In view of what is said above, we need not consider the effect of the divorce and subsequent remarriage of the testator on the 1942 will.
3. Neither do we consider the rights and liabilities of the parties resulting from the 1942 agreement between the testator and his first wife.
James Beverly Langford, Robt. Thomas Pope, for appellee.
Houston White, for appellant.
Friday May 22 14:16 EDT

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