Abbott v. Abbott

• Court: Nebraska Supreme Court
• Writing for the Court: Heard before White; SMITH; CLINTON; BOSLAUGH; WHITE
• Citation: Abbott v. Abbott, 188 Neb. 61, 195 N.W.2d 204 (Neb. 1972)
• Decision Date: 03 March 1972
• Docket Number: No. 38010,38010
• Parties: Arthur J. ABBOTT, Appellee, Cross-Appellant, v. Ethel S. ABBOTT, Appellant, Cross-Appellee.

Page 204

195 N.W.2d 204

188 Neb. 61

Arthur J. ABBOTT, Appellee, Cross-Appellant, v. Ethel S. ABBOTT, Appellant, Cross-Appellee.

No. 38010.

Supreme Court of Nebraska.

March 3, 1972.

Syllabus by the Court

1. The parol evidence rule does not prevent reception or consideration of evidence to prove promissory fraud.

2. A disclaimer clause in a bargain is relevant to the issue whether the claimant in fact relied on the false representation disclaimed in the clause.

3. Where the amount of a claim is liquidated, compensation in the form of prejudgment interest is allowed as a matter of right.

4. A claim is liquidated if the evidence furnishes data which, if believed, makes it possible to compute the amount, without reliance upon opinion or discretion.

Lester A. Danielson, Scottsbluff, Finlayson, McKie & Fisk, Omaha, for appellant.

Wright & Simmons, Scottsbluff, for appellee.

Heard before White, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON and CLINTON, JJ.

SMITH, Justice.

Damages for promissory fraud in settlement of objections to probate a will were sought by Arthur J. Abbott from Ethel Abbott, his stepmother. On remand after Abbott v. Abbott, 185 Neb. 177, 174 N.W.2d 335 (1970), a jury found for Arthur. The district court awarded him prejudgment interest on the amount of the verdict from February 9, 1960, the date of final distribution of the assets of the estate.

Ethel appeals. She assigns for error (1) the denial of her motion for judgment notwithstanding the verdict and (2) the award of interest. Arthur cross-appeals. He asserts error in the court's denying him prejudgment interest compounded annually.

SUMMARY OF EVIDENCE

Christopher J. Abbott at the time of his marriage to Ethel in 1933 was the father of Arthur, age 18, Glaideth, and Phyllis. On January 10, 1954, Christopher died, leaving a form of will. It gave one-half the estate to Ethel and out of the other half, specific legacies to Christopher's brother, LeRoy Abbott, Arthur, and Glaideth. It provided for distribution of the remainder to Arthur and his sisters in equal shares. The subscribing witnesses were LeRoy, Ethel, Arthur, and Miles Lee, a lawyer and nonbeneficiary.

Arthur and his sisters, accepting an invitation that excluded any counsel for them, attended a meeting of named beneficiaries. Other beneficiaries were present with counsel. In the confusion and with pressure on them the sisters departed to seek legal advice. They subsequently threatened to contest probate of the will. One objection was defective attestation argued as follows: In event of a will contest Ethel, a subscribing witness, would be compelled to testify. Upon doing so, regardless of the outcome of the contest, she would receive only one-fourth, her intestate share, instead of one-half. The difference between the one-fourth and the one-half was $1,250,000. In the absence of a contest the will would be admissible without her testimony, and she would receive a one-half share. Everyone conceded that the objection was sound.

On March 29, 1954, at a meeting in Omaha of all beneficiaries, except the sisters Arthur alone was not represented by counsel. There he suddenly offered to give up enough property to equalize the childrens' shares. Equalization was acceptable to the sisters provided Ethel made up the difference. During the meeting but only in the presence of Arthur and Lee, the promise in suit was given orally by Ethel. She would pay Arthur the difference in value between the property covered in the will provisions for him and the property distributed to him from the estate. The difference would be payable upon final distribution of the assets of the estate. Ethel subsequently repeated the promise, attaching conditions that Arthur would assist in winning his sisters and in gaining admission of the will to probate. Arthur performed.

Counsel negotiating terms of a settlement, prepared several drafts without consulting Arthur, who had not engaged counsel. The final draft was to be approved in writing by counsel for each party. Upon advice then given by Ethel, Arthur engaged Lee to represent him and the estate. Lee subsequently advised Arthur that the offer of settlement which did not express Ethel's prior oral promise was grossly unfair and unacceptable. Arthur agreed, but he subsequently informed Lee that he intended to sign anyway, and he requested Lee's written approval. Lee approved the settlement but only after Arthur signed a letter setting out Lee's actual advice and in effect exonerating Lee from malpractice.

The settlement was signed on May 10, 1954, the day the will was admitted to probate. It generally saved a one-half share for Ethel. Arthur received $303,412.25 less than he would have received under the will without the settlement. The provision for him under the will was less than was the provision for him under the statutes of descent and distribution. Arthur testified to reliance on the oral promises of Ethel.

Prior to June 1, 1954, Lee was discharged as attorney for Arthur and the estate. From that time to April 1962 Arthur acted without the advice of counsel.

A meeting was held in Lincoln on July 10, 1959, relating to final distribution of estate property. There Arthur twice was queried whether any promise other than an unrelated one given at the funeral, had been made to him by Ethel. According to his testimony, Arthur knew that he must take a stand then or never, but he thought Ethel's oral promises were not enforceable. The room was quiet for several minutes. Arthur hung his head. Then, according to two lawyers, and Arthur himself, he twice answered, 'There were no promises.' According to Glaideth and Phyllis, Arthur in a low voice quietly added, 'at least not in writing.'

Christopher orally had promised Arthur some cattle that were undelivered at his death. At the funeral and prior to any inkling of probate objections Ethel promised Arthur that she would deliver the cattle. That promise was the one mentioned at the meeting in Lincoln. It had not been covered in the family settlement agreement or in plans for final distribution of estate property. On December 29, 1959, Arthur signed an instrument acknowledging receipt of the cattle. His signature was witnessed by LeRoy and James C. Quigley, a lawyer, who had represented LeRoy in the family settlement. The instrument, typewritten, was headed 'RECEIPT.' It began: 'RECEIVED of Ethel S. Abbott . . . 250 . . . head of cattle . . . classified as follows . . ..' After listing 11 classes, the value of each, and the total, $37,420, it continued: 'in full and complete payment and satisfaction of the only verbal promise made by . . . Ethel . . . to the undersigned, in the deduction of said cattle from her distributive share of the cattle belonging to the estate of Christopher J. Abbott, deceased, the same to be a part of my inheritable share of cattle belonging to said estate.'

At the time Arthur signed the 'receipt,' according to him, he was under pressure to locate ranch land for his cattle. The lease and the receipt formed a single transaction. He read the receipt hurriedly, and he did not notice the disclaimer clause. Had he noticed it, according to his testimony, he would not have signed the receipt.

Arthur, a college graduate with a degree in business administration, had been managing ranches of Christopher. He also was a director of several banks. A jury, however, might reasonably find the relationship between Arthur and Ethel to have been the one summarized by Lee: 'Well, it seemed obvious, of course, that Arthur . . . was greatly dependent upon someone after his father's death. Ethel . . . took the role of mother as much as a stepmother could. And of course I would say very largely dominated all business matters that affected Arthur and affected the estate. Q In your observation did Ethel . . . have control over Arthur? A In my opinion she very largely did, she very largely did.'

Pleadings and pretrial stipulations established the following facts: Entry of final decree in the estate and final distribution of the assets had occurred February 9, 1960. Arthur received assets with a value of $303,415.25 less than the value of the assets he would have received under the will. Arthur's petition prayed for recovery of $303,415.25, with interest at 6 percent a year from February 9, 1960. The district court found the claim to be liquidated. It allowed Arthur interest in accordance with the prayer, the $303,415.25 set out in the jury verdict being fixed as a matter of law.

MOTION BY ETHEL FOR JUDGMENT

Ethel contends that the clause in the 'receipt' contractually disclaimed promissory fraud on her part, and that it was a release. Several general rules relating to fraud in contract, tort, or both arguably support her contention. A person who offers no explanation to avoid a receipt in which he acknowledged full payment of the amount due under a written agreement not to contest a will in consideration for such payment may not recover. See Knoll v. Knoll, 173 Neb. 602, 114 N.W.2d 40 (1962). Generally in the absence of fraud, one who does not choose to read a contract before signing it cannot later relieve himself of its burdens. General Motors Acceptance Corp. v. Blanco, 181 Neb. 562, 149 N.W.2d 516 (1967). Where ordinary prudence would have prevented the deception, an action for fraud perpetrated by such deception will not lie. Swanson Petroleum Corp. v. Cumberland, 184 Neb. 323, 167 N.W.2d 391 (1969). Generally a mistake of law is one upon which a party cannot rely, as all parti...