Carlson v. Carlson, 32933.

• Decision Date: 28 November 1941
• Docket Number: No. 32933.,32933.
• Parties: CARLSON v. CARLSON et al.
• Court: Minnesota Supreme Court

300 N.W. 900 211 Minn. 297 CARLSON
v.
CARLSON et al. No. 32933. Supreme Court of Minnesota. November 28, 1941.

Appeal from District Court, Washington County; Alfred P. Stolberg, Judge.

Suit to compel specific performance of an oral contract to make a will by Edmund T. Carlson against Harry W. Carlson, executor of the estate of John A. Carlson, deceased, and others. From a judgment for the defendants, plaintiff appeals.

Affirmed.

Fred N. Peterson, of St. Paul, for appellant.

Wilson & Lehmicke, and Reuben G. Thoreen, all of Stillwater, for respondents.

JULIUS J. OLSON, Justice.

In a suit to compel specific performance of an oral contract to make a will, the court found "that plaintiff has failed to prove the agreement alleged in * * * his complaint or any other enforceable

211 Minn. 298

agreement by the kind and character of evidence which is required by law," and hence that "there was no such agreement" made. Judgment of dismissal was directed, later entered, and plaintiff appeals.

The parties to this suit are the children of John A. and Mary Carlson. The mother died intestate in 1919 possessed of an 80-acre homestead, appraised value $10,000. She was survived by her husband and the five children named in the title of this suit, On March 22, 1920, the probate court entered its decree assigning a life estate to the husband, remainder to the children in equal shares. On January 14, 1920, after Mary's death but before entry of decree, plaintiff and the other children, their spouses joining, conveyed their interests to their father, thereby vesting in him sole ownership. The present suit arises out of a claimed oral agreement made between plaintiff and his father, "on or about the 14th day of January, 1920, * * * whereby," so it is alleged, decedent "agreed to testamentarily dispose of his property in an equal share to the plaintiff with his other surviving children and further agreed to testamentarily pay to plaintiff the one-fifth interest" of his mother's estate, "in consideration that plaintiff would execute a deed and convey" his interest in his mother's estate to his father.

The father died testate March 8, 1940. By his will, dated June 25, 1923, when he was 68 years of age, he gave to plaintiff and his brother Richard each $1,000. To the daughter was given $2,000, and to each of the other two sons, Harry and Ernest, he gave a like amount, and also made them residuary beneficiaries. The appraised value of the estate is $15,400, consisting of personal property only. The will was duly admitted to probate without objection by anyone and is now being administered there. What plaintiff seeks is to have his father's will "declared null and void," and that all of decedent's property "be held in trust for the benefit" of plaintiff "in such sum as shall be found due" him.

While Richard and Mable are both made parties defendant, neither answered, for the obvious reason that each had commenced

211 Minn. 299

a similar suit seeking the same relief as that

300 N.W. 901

asked by plaintiff. All three cases were on the calendar for trial. The answering defendants moved to consolidate the three cases, but plaintiff objected because "these actions are predicated upon a conversation with a deceased person * * * and I figured on making three suits out of it and to call the defendants under cross-examination under the statute"; if...