Applebaum v. Wechsler, 41

• Decision Date: 24 December 1957
• Docket Number: O,No. 41,41
• Citation: 350 Mich. 636,87 N.W.2d 322
• Parties: Bertha APPLEBAUM, Plaintiff-Appellee, v. Louis WECHSLER, Administrator of the Estate of Sidney C. Applebaum, deceased, Defendant-Appellant. ct. Term.
• Court: Michigan Supreme Court

Page 322

87 N.W.2d 322

350 Mich. 636

Bertha APPLEBAUM, Plaintiff-Appellee, v. Louis WECHSLER, Administrator of the Estate of Sidney C Applebaum, deceased, Defendant-Appellant.

No. 41, Oct. Term.

Supreme Court of Michigan.

Dec. 24, 1957.

Robbins, Wechsler & Lebenbom, Detroit, for defendant and appellant.

Max E. Klayman, George Stone, Detroit, for plaintiff and appellee.

Before the Entire Bench.

SMITH, Justice.

This case involves a fact situation viewed by courts with suspicion: An asserted oral contract to leave one's property to another at death. The trial chancellor was not insensitive to this breath of hostility ('you cannot,' he observed on the first day of trial, 'help but view this type of case with a little bit of suspicion at the outset'). Nevertheless he decreed specific performance. The case is before us on a general appeal.

Bertha Applebaum is the plaintiff. She and deceased Sidney Applebaum were married some 22 years prior to his death. Their beginnings were humble. 'I come to her with nothing,' he is reported to have said. Mrs. Applebaum, in fact, gave him the money for the ring. They lived for a time with relatives. His father-in-law made him a loan, 'and then he was in stock buying.' Having made a purchase of stock he would take it home in his car. There his wife would help him with it, 'you know, to fix it, you know--some buttons to sew; she used to help him right along' and he would then resell. He remained in the business of brokerage of merchandise until his death. So passed the years.

Although there were no children born to this couple, Mr. Applebaum was the father of two children by a previous marriage. We cannot avoid some description of the situation with respect to them for it is material to the case. It is clear from the record, and from the findings of the trial court, that his relationship with his daughters was far from close, that, in truth, it was lacking in warmth and affection. One of them testified in the case. She had not known during his lifetime that he had been divorced from his wife, Bertha. Upon one occasion, bearing a holiday gift for his grandchildren, he was ordered off the premises. The trial chancellor characterized his relationship with the two daughters as 'cold and distant.' We cannot conclude otherwise. Fault therefor we do not assess.

The divorce referred to occurred in May of 1954. In the bill of complaint Mr. Applebaum charged that his wife Bertha had become indifferent to him, and that she did not care to live with him as his wife. The record is not completely clear as to how and why the critical situation had arisen. Certain of the witnesses testified not only that they did not know the reason for the divorce but that Mr. Applebaum had told them that he 'didn't know himself.' There is, on the other hand, somewhat more than an intimation that it was because of the situation with respect to his children and grandchildren. His children were estranged from him, as we have noted, and he was not permitted to share the lives of his grandchildren. He had wanted children of his own, in fact he had wanted to adopt children, 'but it was too late.' According to his sister (and his nephew) Mr. Applebaum felt that if he were to divorce his wife Bertha he would then be permitted by his daughters to see the grandchildren. The nephew put it in these terms: 'Maybe he thought he could win back his children, his so-called children. I don't know.' If, in fact, this was his purpose it was unavailing. After getting the divorce 'he went to the daughter, and he said, 'I would like to see the children.' In fact, he left $20 apiece. She said, 'You can't see my children."

At any rate, whatever the reasons for the divorce, and these we mention only for the light they may cast upon the controverted question of an asserted meeting of the minds between Sidney Applebaum and his ex-wife with respect to his post-divorce care, it is clear that, once having obtained the divorce, Mr. Applebaum's unhappiness only increased. (He eventually committed suicide, states the trial chancellor, and although plaintiff asserts this is not properly proved, we will accept it, arguendo throughout.) Within a few days he was expressing sorrow over the divorce. He entreated his nephew, Harry Nelson, to intercede for him. 'Call up your Aunt Bertha,' he asked his nephew. 'Call her up and get us back together again. * * * I made a very, very bad mistake. * * * She is the only one that helped me, fed me and took care of me.' As a result, arrangements were ultimately made resulting in a reconciliation. He then was, testified Mr. Nelson, 'the happiest man in the world.' The testimony of his niece, Mrs. Polly Applebaum, was similar. In March of 1955, she testified, he came to her house, 'and those are the exact words that he said: 'Mazultov,* Bertha and I are getting married.'' The date of the marriage was not set. As subsequently explained '* * * he wasn't definite; he says within the near future, but there was no definite--he never told me no definite date.' As to why he wanted to get remarried, 'He was lonesome. He hated to stay by himself in a big flat like that. He had nobody to take care of him. Right after the divorce he used to do his own laundering and cooking. He couldn't do that.'

With this factual background we approach the principal issue in the case. The plaintiff contends that she and Sidney Applebaum entered into an oral agreement that in return for her taking care of him, until they remarried, he would leave all his property to her. The trial chancellor so found, in the following terms:

'That thereafter said Harry Applebaum (sic) regretted having obtained the divorce and made persistent efforts to have plaintiff remarry him and that finally on or about the 1st day of March, 1955, the parties agreed to remarry in the near future.

'That thereafter said Sidney C. Applebaum did persuade and implore plaintiff, because he was lonesome and unhappy, to care for him and comfort him as she had done during his marriage to her, and did during the latter part of the month of March, 1955, agree with and promise her that if she would commence immediately, even prior to their forthcoming marriage, to care for and comfort him he would leave all of his property to her and would made a will to such effect. That he also told her he would do this because he felt he had wronged her by the divorce, that she was the only person who was truly interested in his wellbeing, and that he had long been estranged from his children.'

The appellant attacks the decree upon various fronts. It is argued at length that plaintiff did not sustain her burden of proof, specifically that there was no meeting of the minds, that the acts done (by Mrs. Applebaum) in fulfillment of the asserted contract were trivial, and that the whole case is simply 'a sordid effort by plaintiff to divert the estate of Sidney Applebaum from his daughters.' We agree with the appellant that the law must scrutinize closely and with great caution oral contracts to leave to another, upon the promisor's death, the estate of the latter. There have been, however, many cases involving such agreements and the decisions are clear that the contract will not be defeated, if genuine, by the informal circumstances of its making. What we require is an actual agreement, a contract, a meeting of the minds, not a mere intention. Yet a contract may be expressed in many ways, ranging from the precision of skilled and suspicious counsel dealing at arm's length, to the inartistic agreements of those in domestic and filial relationship, evidenced not so much by the language of Williston as by opportunities forsaken and devotion bestowed beyond the normal conduct of similar parties so situated. In other words, the close relationship of the parties will not in itself defeat recovery merely because the agreements of such parties are expressed in the imperfect language of the home rather than the words of the scrivener. Such is our problem.

We turn, then, to the testimony presented and the acts of the parties involved. There can be no doubt of certain matters, primarily that Sidney Applebaum was a lonely and distraught man following his divorce. It is clear that he was desirous of remarriage, but it is equally clear that Bertha Applebaum was not willing to agree to an immediate resumption of the marriage relation. She had been divorced by him after many years of life together. Her thoughts we do not know, but her reluctance is understandable. The trial chancellor phrased it well:

'Here the woman gave up her home and left, didn't she? Whether it was disappointment over the divorce or what, she went out from the home when he started the divorce suit. Now why should she rush back into the home just because he changed his mind? Hasn't she a right to contemplate what the circumstances will be? Associate with him and find out? Did they make certain provises to each other? Was she still contemplating going back, and he suddenly died?'

Marriage, then, it would some day be. But Mr. Applebaum was concerned with the present as well as the future. Plaintiff asserts that at this point a solemn agreement was reached with her ex-husband: on her part that she would forthwith take care of him and furnish him companionship, cook his meals (he 'hated,' we are told, eating in restaurants), do his laundry, accompany him as necessary or desirable, and he, in turn, would leave everything to her. The agreement, then, in substance and effect, was that in return for her ministrations she would obtain the same economic security in this interim period as she had had in their previous marriage and would, presumably, have after the marriage to come. The agreement so reached was carried out. Bertha, in fact, took care of him. 'He didn't move into the same house, did he?' Bertha's sister (with whom Bertha lived subsequent to the dovorce) was asked. 'No,' was the reply, nor did Bertha move...