## Facts

- Bessie T. Pruss and Albert Pruss had nine children and owned a residence and approximately 130 acres of farmland in Dodge County, Nebraska (originally titled in Bessie’s name), along with other anticipated family assets.
- In September 1980, Bessie and Albert executed a document described as a joint contractual will after consulting counsel, addressing lifetime gifts to certain sons and dispositions of the farmland.
- In November 1980, Bessie and Albert executed mutual and reciprocal wills drafted by their son Francis (an attorney), stating they were contractual and irrevocable except by joint consent, and that after the death of either spouse the wills would become irrevocable.
- The November 1980 wills recited consideration tied to cross-conveyances of each spouse’s undivided one-half interest in the farmland.
- Albert died about two months after the November 1980 wills; his will was probated.
- In 1983, after conflict with three sons (Albert J. Pruss, Francis, and Richard) stemming from an unsuccessful guardianship effort concerning her, Bessie executed a new will reducing those sons’ shares.
- Bessie died in 1990, and the 1983 will was offered for probate.
- Three sons sued in equity to impose a constructive trust on Bessie’s estate, asserting the November 1980 mutual wills formed a binding contract that controlled distribution despite the 1983 will.

## Issues

1. Whether the November 1980 mutual and reciprocal wills constituted an enforceable contract to devise property, supported by sufficient consideration, that became irrevocable after Albert’s death and probate of his will.
2. Whether Bessie’s 1983 will, though effective to revoke the earlier will as a testamentary instrument, breached contractual obligations arising from the November 1980 mutual wills such that equity could impose a constructive trust.
3. Whether alleged undue influence in procuring the November 1980 wills defeated enforcement of the contractual arrangement.

## Decision

- The Nebraska Supreme Court reversed the district court’s judgment denying a constructive trust and remanded for further proceedings.
- The court held the November 1980 wills reflected a binding contractual arrangement supported by consideration and became irrevocable as to Bessie upon Albert’s death and probate of his will.
- The court held Bessie’s 1983 will could not defeat the contractual rights created by the November 1980 agreement; equity could enforce the contract through a constructive trust against Bessie’s estate.
- The court rejected the undue influence challenge for failure to meet the clear and convincing evidence standard.

## Legal Principles

- Actions seeking a constructive trust and an accounting are equitable; appellate review is de novo on the record, giving weight to the trial court on disputed evidence.
- A party seeking a constructive trust must prove the factual basis by clear and convincing evidence.
- An agreement to devise property is valid and enforceable when supported by consideration.
- A mutual will executed pursuant to an agreement based on sufficient consideration is both contractual and testamentary; the contract becomes irrevocable as to the surviving spouse upon the other spouse’s death and probate of the deceased spouse’s contractual will.
- Execution of a later will revokes a prior will, including a mutual or joint will, but revocation does not extinguish contractual rights; breach may be pursued against the survivor’s estate.
- In construing a will, courts consider the will’s language in light of circumstances surrounding its execution.
- Partial failure of stated consideration does not defeat a contract if other stated consideration is sufficient.
- Undue influence requires proof (by clear and convincing evidence in equity) of susceptibility, opportunity, intent to influence for an improper purpose, and a result clearly produced by the influence.

## Conclusion

The court enforced the November 1980 mutual contractual wills as an irrevocable contract after Albert’s death and probate, held that Bessie’s later 1983 will could not alter the agreed distribution, and ordered further proceedings to impose equitable relief—including a constructive trust—to carry out the contractual plan.


Pruss v. Pruss, 514 N.W.2d 335 (Neb. 1994)