WALTER E. BETTENCOURT & others vs. EDNA O. BETTENCOURT.

CUTTER, J. The plaintiffs, who are all children or stepchildren of Edna O. Bettencourt, [Note 1] by this bill seek to require her to convey to them certain parcels of real estate in Edgartown in accordance with undertakings which the plaintiffs assert Edna made or confirmed in a will executed by her substantially in the same form, and on the same day (February 14, 1967), as a will made by Anthony. A demurrer [Note 2] was overruled.

A Superior Court judge made a report of material facts. He concluded that the wills of the widow and her late husband in fact "were wills" which (as to her will) Edna "could revoke . . . at her pleasure." By final decree, the bill was dismissed. The children appealed. Designated evidence is reported. See S. J. C. Rule 1:02, 351 Mass. 732 -734; 353 Mass. 804 . The facts are stated (except as otherwise indicated) on the basis of the report of material facts.

Edna married Anthony in 1947. Including their children by earlier marriages, they had five children in all (fn. 1). Anthony and Edna made several trips to California. On a trip in 1966 they had narrowly escaped several automobile accidents. They planned to go to California again in 1967. They decided to provide

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for the children by will "in case they were both killed during the trip."

A lawyer (who had done earlier work for Anthony and Edna) made a draft will for each of them and then met with them. He told them "that they could change the will at any time." The lawyer "did not inform . . . [them] that he intended to draw a trust, or an agreement." The instruments were signed simultaneously. Edna's will was placed on deposit (G. L. c. 191, Section 10, as amended by St. 1960, c. 118; and Sections 11 and 12) with the register of probate.

On the next day Anthony and Edna left for California. While there they separated. Edna returned in the spring to Martha's Vineyard. She consulted a lawyer and began divorce proceedings in April, 1968. In November, 1968, Edna went to the court house, took her will there on deposit, "put several crosses through" it, and wrote "Revoked" on each page.

In December, 1968, a hearing was held on Edna's libel. "[N]o decree was ever issued." [Note 3] Anthony died on March 27, 1970.

Edna's will contained the following language which gives rise to the present controversy: "My husband, Anthony . . . and I own as joint tenants the real estate and personal property described in the paragraphs below . . . A, B, C, D, E and F. We have agreed with one another, in consideration of identical promises of each to the other, that following the death of the first of us to die the survivor will dispose of said jointly owned property in the manner stated in said paragraphs. By this will, and by an identical will made today by my husband, each of us confirms the agreement and provides for the disposition of said property and of our respective interests therein as joint tenants and as a survivor in the manner stated in said paragraphs; and each of us agrees to execute whatever additional

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deeds or other instruments may be necessary to accomplish the agreed results."

After the passage just quoted follow five paragraphs marked A to E, inclusive. Each paragraph describes a parcel of land in Edgartown and gives it to one or more of the children (in one instance subject to a life interest in the survivor of Anthony and Edna). [Note 4] The provisions of pars. A to E, inclusive, indicate that all or most of the parcels of real estate referred to in those paragraphs were owned by Anthony and Edna as tenants by the entirety. [Note 5]

The judge admitted, without any exception being saved (or any objection being made except on the ground of materiality), Edna's testimony about what the lawyer told Anthony and her before the will was signed. She testified that "when we were making the will up . . . [the lawyer] said that we could have this will added to or changed in any way whatsoever whenever each one of us wanted to do it -- we didn't have to do it together, or anything like that. Each one could change it according to his own will." She denied that the lawyer ever told her "that the will could not be revoked" or that he ever used the word "trust" or "agreement." Also without exception (and over only

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general objections) she gave testimony that she "believed that . . . [she] could change the will or do as . . . [she] pleased with it at any time," and that her husband never told her or (to her knowledge) anyone else that "his understanding was any different from" hers. She further testified that the "will was made up specifically for our trip to California, with the understanding that I could change or do anything that I wanted to with it at any time if I was able to get back." [Note 6]

The lawyer testified that he had been asked "to prepare a document which would provide that the survivor [of Anthony and Edna] would not have an uncontrolled and absolute ownership of the properties which are involved in the agreement, to do with as the survivor saw fit." Such an arrangement "they did not want . . . ." Instead, he said, they wanted "a provision . . . allocating the properties to the children . . . upon the death of the first one of them to die." The lawyer denied that he ever told Edna "that she could change this document at any time."

1. The instrument, stating that it is Edna's last will (found by the judge to be identical to that of Anthony), is (with respect to the recital of an agreement with Anthony about disposal of the Edgartown real estate) somewhat unusual in Massachusetts. See Newhall, Settlement of Estates (4th ed.) Section 342, p. 397 ("There is no law or practice in Massachusetts as to either joint or mutual wills"). See also Lombard, Probate Law and Practice, Sections 1621, 1628. Compare, however, Young v. Young, 251 Mass. 218, 220-222. Elsewhere the law is by no means uniform, but there is substantial authority that mutual or reciprocal wills, particularly those of a husband and wife, may be based upon, reflect, or express a prior or simultaneous contract (not unilaterally

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revocable) to dispose of property in a specified manner. [Note 7] The mere execution of simultaneous and reciprocal wills, however, "does not, of itself, show that the parties had entered into a contract to make such wills" or other disposition. See Page, Wills (Bowe-Parker ed.) Section 10.4; [Note 8] Sparks, Contracts to Make Wills, 29-30. See also Gary v. Perpetual Trustee Co. Ltd. [1928] A. C. 391, 400-401; Re Oldham, [1924] 1 Ch. 75, 87-89. On the other hand, some cases elsewhere allow enforcement of adequately proved agreements (sometimes set out or referred to in wills) to make dispositions of particular property. See e.g. Brewer v. Simpson, 53 Cal. 2d 567, 587-589; Helms v. Darmstatter, 56 Ill. App. 2d 176, 182-187; Estate of Wade, 202 Kans. 380, 385-390 (will held contractual despite absence from it of language to that effect); Wimp v. Collett, 414 S. W. 2d 65, 70-77 (Mo.); Geiger v. Geiger, 185 Neb. 700, 702 (agreement in wills); Tutunjian v. Vetzigian, 299 N. Y. 315, 319-321 ("resulting trust" held to result from contract); Rubenstein v. Mueller, 19 N. Y. 2d 228, 231-234; Godwin v. Wachovia Bank & Trust Co. 259 N. C. 520, 529-530 (simultaneously executed wills, incorporating an invalidly executed trust agreement, held evidence of a contract); Olive v. Biggs, 276 N. C. 445, 464-465. Cf.

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Foley v. Elliot Community Hosp. 98 N. H. 186, 190. [Note 9]

The uncertainties concerning the effect, interpretation, and consequences of joint, mutual, or reciprocal wills are strong reason for strictly construing such instruments, in effect, as presumptively not intended to make or reflect a contract for a particular disposition of property. In the absence of explicit language compelling such a construction, simultaneously made wills with reciprocal provisions, we think, should not be interpreted as expressing a contractual obligation. [Note 10] Even if a contractual obligation in fact is intended in such circumstances as here appear, we are of opinion that the desired result is likely to be accomplished more clearly (and with more complete understanding by the parties) by the use of a carefully expressed trust instrument rather than by the use of wills.

The asserted agreement (at least apart from par. F, fn. 5, supra) is not one to make a devise at Edna's death or to make a will (see G. L. c. 259, Section 5, as appearing in St. 1965, c. 560, Section 1, and Section 5A, inserted by St. 1965, c. 560, Section 2), [Note 11] but is one to make the inter vivos dispositions which each will stipulates. See c. 259, Section 1.

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The disposition in Edna's will, if it determined that a contract was intended, in terms is specific enough to constitute a memorandum. It is signed by Edna, the party to be charged. It states the terms of the "agreement" between her and Anthony, and indicates the consideration. It proposes inter vivos transfers of specifically described parcels. The statute of frauds thus can be satisfied by the writing contained in the will. See Herr Estate, 400 Pa. 90, 96; Corbin, Contracts, Section 509. See also Tzitzon Realty Co. Inc. v. Mustonen, 352 Mass. 648, 651-654; Potter v. Bland, 136 Cal. App. 2d 125, 129-132.

We recognize that the references in Edna's will to the existence of an agreement are somewhat unusual in Massachusetts, and that there exists uncertainty whether (a) they reflect a binding contract or trust rather than (b) an informal intra-family understanding subject to alteration at the will of the parties. These doubts arise primarily because of parol testimony. [Note 12]

The cases elsewhere (see fn. 9 and related text of this opinion) have employed, with considerable freedom, parol evidence to resolve ambiguities implicit in similar language in or affecting wills. The references to a contract, however, in the simultaneous wills before us may be more definite than those upheld as reflecting a contract in most of the cases in other jurisdictions already cited. Not only is the language adequate to meet the requirements of the statute of frauds, but it purports definitely to describe a specific agreement. In no respect is the contract described a strange one for a wife (married twice and with children by each marriage) to make with a husband with a similar family background, for the appropriate treatment of all of the children. Neither the instruments nor the parol evidence suggest

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that any contract between the parties was based on an express or implied condition that the agreement be dependent upon the continuance of an amicable marriage relationship.

The agreement seems intrinsically a fair one. It was drawn by an attorney who seems to have tried to state clearly an integrated and binding contract. Even parol evidence, admitted without exception, cannot be employed to vary an integrated written agreement. See Gethins v. Breeyear, 252 Mass. 326, 327-328; Kerwin v. Donaghy, 317 Mass. 559, 568. See also Frick Co. v. New England Insulation Co. 347 Mass. 461, 467; Pagliarulo v. National Shawmut Bank, 353 Mass. 449, 450. In the present case, however, the parol evidence was properly considered at least to disclose the circumstances attendant upon the execution of the wills and, to that extent, to assist in determining what the parties intended.

The judge's decision was based on meager subsidiary findings and was at best ambiguous. He concluded only that the instruments "in so far as it is . . . [a] question of fact . . . [from Edna's and the attorney's testimony] were wills, and as such . . . Edna . . . could revoke . . . [her] will at her pleasure" (emphasis supplied). Although he made subsidiary findings, which were consistent with parts of Edna's parol testimony, he did not address himself directly to the issue whether the parties intended to make, or had made, a contract. He also did not deal in explicit terms with whether the instruments stated or recorded an integrated agreement, which would preclude variation by parol evidence. He seems to have reached his conclusion solely on the basis that the instruments were wills and hence revocable, an issue not decisive of the case. Much more complete subsidiary findings and a more detailed statement of conclusions would have been appropriate.

Although the evidence is before us, the court concludes that it should not attempt to resolve the ambiguities in the judge's decision. We have had no opportunity to hear

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and appraise the witnesses. Accordingly, we remand the case for a new trial (in the light of this opinion) in which there should be specific findings on all appropriate issues. [Note 13]

2. The remaining question is whether these plaintiffs can maintain the present suit. This is in part a proceeding for declaratory relief under G. L. c. 231A. That chapter (see Section 9) is to be construed broadly. See Sun Oil Co. v. Director of the Div. on the Necessaries of Life, 340 Mass. 235, 239; Norwell v. Hartford Acc. & Ind. Co. 358 Mass. 575, 578. See also Magoun v. Liberty Mut. Ins. Co. 346 Mass. 677, 684, fn. 6. Even if a plaintiff is not entitled to the particular relief sought, he is entitled to a binding declaration of rights under an agreement. See Hannan v. Enterprise Publishing Co. 341 Mass. 363, 365; Provident Coop. Bank v. James Talcott, Inc. 358 Mass. 180, 193.

The plaintiffs are all in an intimate family relationship to Edna. They may well be within the principle allowing enforcement of contracts by beneficiaries, who have furnished no consideration and who are not parties to the contract, but who are closely related by blood or family connection to a promisor or promisee. See Green v. Green, 298 Mass. 19, 20-23, and cases cited; Corbin, Contracts (and 1971 supp.) Sections 826, 1154; Williston, Contracts (3d ed.) Sections 357-360. Cf. Estate of Porter v. Commissioner of Int. Rev. 442 F. 2d 915, 918-919 (1st Cir.). Enforcement of such a beneficiary's interest [Note 14]

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may perhaps be sustained on the theory that a trust has been created in substance (see Henry F. Mitchell Co. v. Fitzgerald, 353 Mass. 318, 320-322) if not in form. See Rugo v. Rugo, 325 Mass. 612, 616. Cf. Young v. Young, 251 Mass. 218, 221.

We need not resolve these procedural problems in the present case. One plaintiff is the executor of Anthony, a party to the contract reflected in Edna's will. He may enforce Edna's obligation under the contract, as Anthony's personal representative. We think this plaintiff now should be allowed to amend the bill, to become also a party plaintiff in his capacity as executor. Margolis v. Margolis, 338 Mass. 416, 418. See also Eaton v. Eaton, 233 Mass. 351, 365.

3. The interlocutory decree overruling the demurrer is affirmed. The final decree is reversed. The case is remanded to the Superior Court for further preliminary proceedings and a new trial in a manner consistent with this opinion.

So ordered.