O’Connor v. Immele, 77 N.D 346, 43 N.W.2d 649 (1950)
Author: Anonymous

Facts: It was alleged that the Sweeneys executed reciprocal wills in pursuance of an agreement to do so; each were identical in their material provisions–leaving to the survivor spouse his or her entire estate–and bequeathed and devised the residue on the death of the survivor to Oconnor and Immele in equal shares. In 1945 Ms. Sweeney died leaving $20K, which Mr S succeeded.  Shortly after he revoked his reciprocal will and executed a new will designating Immele as his sole beneficiary.  A year later he died.   

Issue: Whether the reciprocal wills of Mr. and Mrs. Sweeney were made in accordance with an agreement or K to make such a will?

Holding: Yes, but that K was not in writing, not subject to St of Frauds(partial performance of requirements), and b/c the proceeds have been distributed, Pl’s right to recover is dependent on creation of a trust on the distributed property in the possession of the Df.

Procedure: Immele presented the new will for probate and that will was admitted. Immele qualified for possession of the property, and as executor she refused to recognize the K to devise and bequeath to the Pl one half interest in the property.  Pl O’Connor, requested accounting, declaration that Immele be made a trustee, and that she make conveyance.  Df’s Answ listed numerous affirmative Defenses.  Tr. Ct concluded that the Sweeneys had entered into a K to dispose of their estates, that Mr. S breach the K after he received his wife’s estate and became liable to the Pl, but b/c Pl failed to present a proper proof of claim for damages w/i the time allowed by law her claim was barred.  Judgment Reversed for Pl and Remanded.

Rule: Deadman Statue--Testimony regarding any transaction whatever with or statements by the testator or intestate, by either party against executors, administrators or next of kin is prohibited .

Rationale: None of the witnesses who testified were parties, although they were relatives of the PL, their interest does not raise the bar of the statute.  The testimony of witnesses supported the claim that Ella and Dan had declared that the reciprocal wills were made as the result of a mutual agreement.  The trial judge considered their testimony credible, there was nothing to impeach them.  The wills were mutual as well as reciprocal.  By Ella’s action executing her will in accordance with the agreement, which remained unrevoked, and by Daniel’s action in presenting the will for probate and accepting its benefits, sufficient performance was accomplished to remove the K from the operation of the Statute of Frauds.

It is a K and not a will which is irrevocable.  A will may be revoked, but a K stands, and a K will be enforced by equity if it be a valid K.  If the K to make a will is given effect, the Pl upon Mr. S’s death, became vested with a one half interest in all the property.  Equity will grant relief equivalent to specific performance and fasten a trust on the property for the benefit of the heirs of the beneficiary under the K, against any transferee or devisee.