
    WILLS — JOINT TESTAMENTARY DISPOSITION.
    [Lucas (6th) Circuit Court,
    January 25, 1904.]
    Parker, Hull and Haynes, JJ.
    Amedius M. Coghlin v. John T. Coghlin et al.
    1. Husband and Wife May Make Same Testamentary Disposition.
    Husband and wife may make the same testamentary disposition of their property, so that their respective estates may take the same course and be distributed in the same way after death; and where each, by separate will, undertakes to create the same trust in their respective estates for a certain number of years, the validity of the trust so created by the husband is not affecjted by, nor will it be terminated by reason of, the invalidity of the wife’s will which is invalid on account of its defective execution, the wife dying before the husband and probate of her will- being refused.
    2. Execution of Separate and Distinct Wills at Different Times Does not create Joint Will, When.
    A joint will is not created by the execution of separate and distinct wills at different times, and the making of separate and distinct codicils to-such wills at the same time, by husband and wife wherein disposition is made of the separate property and estate of each (it not appearing that the wills were in the nature of a compact), notwithstanding the will of each refers to the will and to the property and estate of the other, and that the disposition in both is practically identical.
    Appeal from Lucas commAn pleas court.
    Smith & Beckwith and Cole, Whitlock & Milroy, for plaintiffs..
    Hamilton & Kirby, for defendants:
    A ■ codicil or will when attacked must stand or fall as a whole. Walker v. Walker, 14 Ohio St. 157, 166 [82 Am. Dec. 474].
    Joint wills by the gréat weight of authority, are not invalid. I Underhill, Wills 18, 19, 20; Page, Wills Secs. 65 to 69; Walker v. Walker, 14 Ohio St. 157, 167 [82 Am. Dec.-474].
    Holding -joint wills invalid in Ohio, has been weakened as an' authority by Betts v. Harper, 39 Ohio St. 639, 641 [48 Am. Rep. 477]; Reformed Church (Tr.) v. Wise, 6 Circ. Dec. 653 (17 R. 659).
    The question whether there was a joint will should have been raised at time of probate or by contest under Sec. 5858 Rev. Stat. et seq.. Walker v. Walker, supra.
    
   HULL, J.

This action was brought in the court of common pleas to set aside certain portions of the will of Dennis Coghlin, especially the part of the will creating a trust and putting all of his real estate in trust for a certain period of time and to partition such real estate among- his legaE heirs. The action was brought by certain of the legal heirs of Dennis Coghlin, making all of the other heirs and their representatives defendants, and also The Ohio Savings Bank & Trust Company, defendant, as administrator with, the will annexed, the bank acting'as administrator with the executor, John T. Coghlin, who is named in the will as such executor. A demurrer to the petition was filed in the court- below by the bank, the administrator with the will annexed, and that demurrer was sustained by the court of common pleas, and the plaintiffs not desiring to plead further, judgment was entered in favor of the defendants dismissing the petition. Thereupon the case was appealed to this court and was argued here upon the demurrer to the petition.

The claim made by the plaintiffs in substance, is, that about the same time that Mr. Coghlin made his will — about a year later — Mrs. Coghlin ma’de a will, which is in effect a counterpart or duplicate of the will of Dennis Coghlin, for the disposition of her estate, and subsequently, in June, 1896^ a codicil was added to each of these wills, these codicils being identical with each other except so far as it was necessary to change them to make them applicable to the wills and property of these two persons, and the claim is that the result is, in effect, a joint will — an attempt to dispose of the estates of Dennis Coghlin and of Ella Coghlin as one estate as a joint fund .and joint property — and that although they are written separately and executed separately, the effect is, it is claimed, the same as though they had been written upon the same paper and executed and attested together, and that they, therefore, fall within the inhibition of the law of this state as laid down by the Supreme Court against joint wills, and that this objection is especially applicable to the trust which is created for the disposition of the property named in these two wills, and was to continue before final distribution was made until the year 1910.

It is claimed by counsel for the demurrer that the two wills do not constitute a joint will, and that under the law of this state as announced by the Supreme Court, in the more recent decisions at least, there is no legal objection to these dispositions of this property and that, therefore, the demurrer to the petition should be sustained. The petition discloses that Mr. Coghlin’s will was made in the year 1893 and Mrs. Coghlin’s will was made in the following year, and in June, 1896,. a codicil to each will was made and executed. Mrs. Coghlin died May 6, 1900, three months before her husband’s death, which occurred August 6, 1900, he having survived her about three months. Upon her death (presumably immediately upon her death), as stated in the petition, her will was offered for probate; but probate was refused, on the ground that it had not been properly attested, so that the paper writing signed and executed by her never in fact took effect as a testamentary disposition of-her property, and her property .was .disposed ol according to the laws of descent., and distribution,, and when Dennis Coghlin died, op August :6, 1900, there was. no legal will of his wife in. existence. The estate comprised both real and. personal property,, the estate of each being - large,- the . personal, estate, of Mr. . Coghlin amounting to about $300,000, and his real estate to something over $600,000, making o,ver $900,000 in all. The personal property of Mrs. Coghlin amounted to about $33,000. and her .real estate to about $700,000. Mr. Coghlin in his will, after giving, to his wife, the household property about the homestead, which belonged .to her,. disposed of all his property through the trust to which-I have .referred. It-provided that all of the property, real and personal, should be held in trust by his .executors until the year 1910; if both he and his wife were-dead at that time, and if either survived later than .that, then the trust was-to continue until the survivor died. The will also provided • that the .executor...should give to Mrs. Coghlin whatever, was .necessary, to her support, if she- needed anything in addition .to her own estate, during this period. At the expiration of the trust -the property w.as. to be divided among the children of Mr. and Mrs. Coghlin per stirpes, the. children of any child dead to receive the same share that the child would have received .had it been living, and was thus to be divided among the children and . grandchildren.

In .the. codicil,. to which reference has been made, which was executed on June 17, 1896, the. provisions ■ as to the trust were altered in some respects. It w.as provided in the codicil, that instead of a division being made by the executors, as provided under the will, the division of-the estate should be- made at .the expiration of the trust.by three “friends,” as they were.called, of Mr.. Coghlin, John S. Kountz, Charles F. Adams and Lawrence Newman, if they should.be living,, and in case any one of them was dead, the probate court should appoint a man to serve.- They were to report their division of. the estate and that, should be binding upon the executors, who should make the division according to the report of-these three persons. The codicil provided further that in the final, distribution of his estate they should take into consideration the,estate, of his-,wife, Ella, Coghlin,,.apd the amount which, each ,of the beneficiaries received from her estate, and .the two estates were, to be treated as one estate, and, the property, divided so that the diyisipn would be equal among, .the various beneficiaries, taking into consideration the property which they, got from the estate of -their mother, Mrs. Qoghlin. The codicil-to-the will, of Mrs..Coghlin, executed upon the,same day, maderthe same provision-as. to,her estate. In. the. will of Mrs. Coghlin there, was.-the-..same;',provision in.regard-.to a trus^ (after making certain special bequests,and,.-devises), the.-same^proyisions .as,those contained ip the will- of Mr. Coghlin, providing that the property be retained in trust until 1910, and the codicil provided in terms identical’with those used by her husband in’ his codicil, that what her children received from, the estate of her husband was to be taken into considération and the two estates were to be treated as one estate. With these two wills thus made- and executed and the codicils thereto, Mrs. Coghlin died three months' before her husband, and her will, with the codicil, was tendered for probate and probate was refused, and it never went info effect ancL never had any legal existence as a will.

It is claimed that considering the two wills together, they must be’ regarded as a joint will and the will of Mr. Coghlin must be regarded as a part of the testamentary disposition of the property under a joint will, and that a trust so created is invalid.

It was held in Walker v. Walker, 14 Ohio St. 157 [82 Am. Dec. 474] :

“A joint will is unknown to the testamentary law of this state, and is inconsistent with the policy of its legislation. And where a husband and wife, each being the separate owner of property, join m the execution of an instrument in the form of a will, and treating the separate property of each as a joint fund, bequeathed legacies and devised lands to divers persons, the same cannot be admitted to probate as the joint will of both parties, nor as the separate will of either.
“Although some of the provisions contained in the body of such will may be, in form and effect, several; yet, inasmuch as the provisions of such will partake of the nature’ of a compact, in which such provision is influenced by all the rest, all the provisions of the will must stand or fall together.

The will of these two parties] Mr. Walker and his wife, was jointly executed and attested and undertook to make a joint disposition of their property, some of their property being joint property and some owned in severalty. The Supreme Court held that this could not be done. The court say, on page 166 of the opinion:

“And the ease is one in which two parties, husband and wife, attempt to make a will which is not joint in form merely, and capable only of a several operation and effect; but one which is joint in substance; where the parties to it are severally owners of property in their individual right; where they attempt jointly to dispose of the property of each, and to treat it as a joint fund, jointly devising the real property of the wife, and jointly bequeathing legacies out of the personalty of both, without designating the proportion in which the personalty of each or either shall contribute for their payment; and from which it is evident that the provisions of the instrument must have been a matter of negotiation between the parties, and in which the disposition which each of the parties would be willing to make of his or her property would, of course,' be influenced and modified by the dispositions which would affect the property of the other. In short, if there can be such a, thing as a joint will, this is a joint will.”

After Mrs. Walker’s death, Mr. Walker, disregarding this will', disposed of some of the property, thus indicating, so far as that property was concerned, his intention not to abide by this will. The great objection that is made to joint wills by the courts, so far as I can discover, is (especially where property held in severalty'is undertaken to be disposed of by two or more) that such a will is irrevocable by either, without the consent of the other, and this, the courts say is foreign and contrary to the very essence o,f a testamentary disposition of property. It is said a will, to be valid, must always be the last will of the person; it is called his “last will and testament;” and that a testamentary disposition of property which binds a man. to stand irrevocably by it takes away from him the power to revoke it or alter it in any respect and «annot be upheld as a testamentary disposition of property; that the nature of a will, some of the authorities say, is always, and must be ambulatory, following the changing moods, likes and dislikes of the author of the will who becomes the testator at deatl}. It is said changes may occur, children may die, or become unfilial, or a son may become crippled, as one case says, and the testator must be left free to change and alter a disposition that he has made of his property by will, and that a document which is of such a nature as to take unto itself the character of a compact, which is irrevocable by either party without the consent of the other, cannot be sustained. That is the doctrine of this case and the doctrine of some other cases. The weight of authority, however, is that joint wills, if they are not changed or revoked during the life of either (each abiding by the will), will be sustained, although the will is executed and attested jointly in one paper; and in Betts v. Harper, 39 Ohio St. 639 [48 Am. Rep. 477], the doctrine of Walker v. Walker, 14 Ohio St. 157 [82 Am. Dec. 474], is somewhat limited. The Supreme Court say in this case, in the syllabus:

“Tenants in common of real estate who are also owners, severally, of personal property, may dispose of the same by will by uniting in a single instrument, where the bequests are severable and the instrument is not in the nature of a compact, but is, in effect, the will of each, revocable by him, and subject to probate as such several will; and where the instrument is not offered for probate until the death of all executing it, the same may then be admitted to probate as the will of each and all such.persons. Walker v. Walker, 14 Ohio St. 157, limited.”

This will which was sustained by the Supreme Court is in one short paragraph:

“We, Agnes Harper and Penrose Harper, of the county of Hocking, in the state of Ohio, do make and publish this our last will and testament, in manner and form following, that is to say: First, it is our will that our funeral expenses and all our just debts be first fully paid; secondly, that all of our property, both real and personal, go to James Betts and John Drue Betts and their heirs forever; lastly, we hereby •constitute and appoint James Betts to be executor of this our last will and .testament, revoking and annulling all former wills by us made and ratifying and confirming this, and no other, to be our last will and testament. ’ ’

The court say, on page 641 of the opinion, delivered by Judge Okey, referring to Walker v. Walker, supra:

“The ease before us is unlike Walker v. Walker. Agnes Harper and Penrose Harper were each the owner of personal property, and they were owners, as tenants in common, of real estate. Bach desired to bequeath her personal property to James Bétts and John D. Betts, and each desired to devise to them her undivided share of the real estate. They eould unquestionably have done this by two instruments, but they could do it as effectually by one. This instrument was, in effect, the •separate will of each. Either could have revoked it, so far as it was her will. On the death of Agnes, in 1872, the instrument might have been admitted to probate as her will; and in 1874 it might have been admitted to probate as the will of Penrose; but in 1875 it was properly admitted to probate as the will of both. The authorities, it will be seen, are in some conflict, but the view we' have stated is supported by reason and the manifest weight of authority.”

In the case of Walker v. Walker, supra, the Supreme Court mention the fact that the singular number is used in the wills act instead of the plural, arguing from this that it was not contemplated by the legislature that more than one person should join in a will. The court in Betts v. Harper, supra, criticise this, and say, on page 641 of,the opinion:

“The provisions of the English statutes and the statutes of the 'various states, upon the subject are precisely similar to our own; and the conclusion that they indicate a policy that two or more persons may not unite in the same instrument in making their wills, whatever the form of the instrument may be, is only reached by a rigid, and, as we think, altogether unwarranted adherence to the mere letter of the statute. The provisions of the statute relating to the execution of deeds are similar and yet nobody has ever doubted that any number of persons having an interest in property may join in an instrument conveying it.”

The case of Cawley is Estate, In re, 136 Pa. St. 628 [20 Atl. Rep. 567; 10 L. R. A. 93], is a comparatively recent case and the authorities are collected to sqpie extent in the opinion and discussed. The court say in the syllabus second paragraph:

“If two or more persons own .property., in commop, there is .no-objection,-, on principle, to their joining in,,a testamentary disposition-pf.it, and this..might be called sa .joint .will., Whether,, after the death .of .one or more.of the. makers, =the surviving maker may revoke such a will, as.to his title, or share of the property devised, not decided.
“Brother and sister joined in.executing a paper .in the following form: ‘I, B C, should I be the first to die, and I, M C, should I be the first to die, give, devise and bequeath, and to the survivor of either of us, all the estate , of the decedenj. for life, with remainder over. Throughout the paper, except in the clause. appointing an executor, the operative words were in the -singular number.
‘ ‘ The instrument .was not a contract, in form or effect; nor, there-being, no joint property or joint devise, was it a joint will. It was. properly a double will, and must be construed and treated as the separate .will .of each maker, as ..fully as though.a separate copy had been-executed by each. Wherefore, after the death of one, it was revocable by the other as to his own property. ”

The brother, died, in this case, .and after that the sister .died- This-joint or double will, made March 16, 1886, was offered for probate. Later, on the s.ame day, a will was presented w^ioh had been executed by the sister after the making of the joint or double document, to-wit, on September 5, 1887. The register of .deeds held that this last will could not ,be admitted to probate. The ease was taken to the next court above the register (the name of the court does not appear in the report), and that -court held that by the making of the subsequent and separate-will she .revoked her disposition of the property as made in this joint document. The opinion of the court' is given in .this volume and it is-quite full upon .that question, holding that the testator had the power to revoke the disposition of her property that .she had made in the joint will; and the .supreme court of Pennsylvania sustain this holding and discuss the question on page 638 of the opinion, citing numerous authorities, among which is the case of Walker v. Walker, 14 Ohio St. 157 [82 Am. Dec. 474]., They say:

“Another class of questions is presented, when two or more persons-make reciprocal testamentary provisions in favor of eaeh other, whether they unite in one will, or each, executes a separate one. Such wills may be described as mutual or .reciprocal. Their validity does not,seem, to be doubted, after the death of the respective testators; but the extent of the. power of revocation in .the -survivor, .after the death of-one. or more of the testators, is a question-still in controversy and.upon-which different conclusions'have-been reached. In -Evans v. Smith, 28 G-a. 98, the will was signed by two, and presented by the survivor .-for probate. No revocation -was attempted, - and the.-only question really before the court was the validity of the-paper as the-will of the deceased signer. The court held-it valid, characterizing it as a ‘double will.’ In,.Lewis v. Schofield, 26 Conn. 452,-a similar will-was presented, .and its validity upheld by the court. In Betts v. Harper, 39 Ohio St. 639, the testators were tenants in common. After-the death of both, it was probated as the separate will of each, and the earlier case of Walker v. Walker, 14 Ohio St. 157, which had-denied the validity of such a will, was distinguished and qualified.”

Other eases are referred to on this page of the opinion. The court say, on page 640, referring to this will:

“Both adopted the same written expression of that desire,-and executed it. The will so made must be -regarded, therefore, as the separate will of each testator, as fully as though the will of each had been separately drawn up and signed. There was no joint property or joint devise. It is not, therefore, a joint will. It .is .not a-contract between the makers in form or in effect. No consideration passed from one .to the other, and none is suggested, except -the .affectionate interest which this aged brother-and sister felt for each other.”

It seems to us that these two papers (Dennis-Coghlin’s will and the will of his wife) do not constitute a joint will, so -as to bring this will--within the prohibition of any-authority that has. been called to our attention. The property disposed of in the two wills is .separate property. Mr. Coghlin had his estate, amounting to nearly $1,000,000, and Mrs. Coghlin had her estate, amounting to -something more than $700,000. Both desired, apparently, that their property be held in trust until the year 1910, or longer if either survived longer; .the trust was to continue until the death of the survivor,'- and both desired that their property should then be divided among their children, share -and share alike, .and each provided for the same manner of division and each desired that their children in the final disposition of their estates should have the same amount of property in valué, considering the estate .of both and. the share that each child got from the estate of the other. The wills were executed and attested at different times and disposed of different-'property — separate property and- separate estates. They -do - not seem -to have taken the form of a -compact or an agreement, which Is regarded as objectionable by some of the authorities, but they are separate and distinct testamentary dispositions of property although the disposition in each is practically identical with that of the other.

There is nothing that prohibits a husband and wife from disposing of their property by will in the same manner- and so that their estates shall take the same course and be distributed in the same way after their death, or shall be distributed at the same time after their death among their children, looking to the welfare of the children and desiring that each shall have the same share considering the estates of both. This form of a disposition of their property could not have been brought about, of course, without discussion between them; that is clear; the matter must have been talked over and each must have known the manner of will that the other made, but that would not invalidate the disposition, so far as we are able to discover, or make it objectionable on the ground that it was a joint will. But, in any event, in this ease it appears that there never was in fact but one legal will; there never was in fact but one will.

While Mrs. Coghlin had undertaken to make a will, her will was invalid, null and void, and so held when offered for probate; and this was done before the death of Mr. Coghlin, for according to the petition, she died three months before his death, and the petition alleges that upon her death her will was offered for probate and probate refused. So that at the time of his death, with his will standing unrevoked and unaltered, h;s wife’s will having been held null and void, there being no allegation to the contrary, it would be presumed that'Dennis Coghlin knew this to be the fact. At least there is no allegation in the petition that he did not know it, and with no will of his wife in existence at the time of his death, his will is left as the testamentary disposition of his property. But, regardless of that, if his wife’s will had been admitted to probate, or if he had died first leaving her with her will to be afterwards admitted to probate, in our judgment, these two documents, taken together, are not within any rule of law prohibiting such a testamentary disposition of property. We think that while they refer to each other and each refers to his or her estate and to the estate of the other, they are in reality and in fact separate and distinct dispositions of property and separate wills, and that either had the power to revoke his or her will if he or she saw fit to do so. But neither of them attempted to revoke the will so made.

The ultimate object of this action, or its real object, is a partition of the real estate described in the petition; to -set aside the trust and partition the real estate among the legal heirs of Dennis Coghlin. It is said that with Mrs. Coghlin’s -will declared null and void, this estate cannot be divided as provided for in this will. Whether that is true or not, we do not think it necessary to decide at this time; that question will come up properly when the time comes for a distribution of the estate, at the expiration of the trust January, 1910. That does not affect the trust itself; that does not affect the provision of Mr. Cogh-lin ’s will that his estate should be held in trust until January, 1910, the heirs until that time to receive only the income of the estate. What effect the invalidity of Mrs. Coghlin’s will may have upon the distribution, if any, at that time, we shall not now discuss or decide. The main object and purposes of this will, evidently, was that 'the property should be held in trust, the heirs not to receive the property or to have any power to dispose of it in any manner until the expiration of the trust, “they receiving during that time only the income of the estate. This was the main feature of this testamentary disposition of this property. That is not affected in any way by the death of Mrs. Coghlin or hy the fact that her will was not admitted to probate, or the fact that she had made a will of a similar character, so far as the trust was concerned, and it is the trust provision of the will, so far as it relates to the real estate; that is sought to be set aside here in order that it may be partitioned among the heirs of the estate. It is not asked that the trust, so far as the personal property is concerned, shall be set aside or altered in any way. The demurrer to the petition will be sustained and the petition dismissed.

Parker and Haynes, JJ., concur.  