Kessler v. Olen

• Citation: 228 Wis. 662,280 N.W. 352
• Parties: KESSLER v. OLEN.
• Decision Date: 21 June 1938
• Court: Wisconsin Supreme Court

228 Wis. 662

280 N.W. 352

KESSLER

v.OLEN.

Supreme Court of Wisconsin.

June 21, 1938.

Appeal from a judgment of the Circuit Court for Waupaca County; Byron B. Park, Judge.

Proceeding in the matter of the estate of Henry Luebke, deceased, wherein Lydia Luebke Kessler filed a claim based upon alleged oral agreement between the claimant and the deceased, that if claimant would live with and care for the deceased the latter would make a will giving the claimant all of his property, which claim was opposed by Otto Olen, executor of the estate of Henry Luebke, deceased. From an adverse judgment, the executor appeals.-[By Editorial Staff.]

Reversed and remanded for proceedings in accordance with opinion.

Claim of Lydia Luebke Kessler against the estate of Henry Luebke, deceased, filed July 27, 1936. Objection to allowance was filed by the executor. The case was transferred to the circuit court for trial pursuant to sec. 324.17, Stats., on demand of the claimant for a jury trial and such transfer. From a judgment entered November 19, 1937, the executor appeals.

The claim filed was for the entire estate of the decedent on hand for distribution on settlement of the executor's final account. It was based on an alleged oral agreement between claimant and the decedent that if claimant would come and live with him and take care of him and his house he would make a will giving to her all his property. The jury found (1) that such agreement was made; (2) claimant entered on performance of her part of the agreement and continued to perform her part until August 1, 1935; (3) that the decedent pursuant to said agreement executed a will which did by its terms give to claimant all his property; (4) that the decedent terminated the agreement on August 1, 1935, by ordering claimant to leave the house and cease performance of the agreement; (5) that there was no breach of the agreement by claimant that justified termination of the agreement by decedent. The court expressly approved and adopted the findings of the jury and made additional findings of fact, mostly of an evidentiary nature, upon which judgment was entered. The judgment decreed that the entire estate was impressed with a trust in favor of the claimant and directed that the executor convey and assign to the claimant all the property on hand for distribution upon settlement of the executor's final account.

The gist of the evidentiary findings of the trial judge are as follows: The deceased was a widower living at Clintonville and died March 19, 1936, leaving a homestead worth $4,000 and personal property worth approximately $5,000. He owned the homestead when the oral agreement was made. Claimant was his daughter and only heir at law. When the agreement relied on was made she was living in Chicago and had children whom she was supporting. The decedent orally agreed that if she would come home from Chicago and take care of him as long as he lived he would support her and her children and her household and make a will giving her all his property. Claimant had a position in Chicago and from her earnings was supporting her children. In reliance on the agreement she gave up her position, went to Clintonville and assumed performance of the contract. She completely performed the things on her part to be performed until the decedent wrongfully evicted her and her children from his house. On February 6, 1935, the day the claimant began performance, the decedent “did carry out the agreement on his part and did cause to be executed a will in proper form” by which he “did give all his property” to the claimant. This will did not refer to the agreement or express the consideration for making the will. On said day the deceased delivered the will to claimant, and gave her a key to a safety deposit box wherein were all his securities including certificates of deposit, put his savings account and cash in bank in her name jointly with his own, provided her with a check book and authorized the bank to permit her to handle all his funds and draw upon the same, and directed the bank to honor her checks. After driving claimant from his house decedent, without her approval, knowledge or consent, took possession of said securities, caused said joint funds to be taken out of said “joint ownership and again placed in his sole name.” Thereafter the decedent executed a will giving claimant nothing. This will was admitted to probate over claimant's objections. Claimant at all times after being driven from decedent's home was ready, willing and able to carry out her part of said contract and was prevented from so doing by decedent. At the time claimant was driven by decedent from his home, decedent was “a feeble old man, easily influenced and said condition continued to get progressively worse until he died.” When the oral agreement was made decedent was “old and feeble” and had but a short expectancy, “all which he well understood, and willingly and understandinly entered into the contract expecting that his life tenure would be short and that while he lived the family group would be kept together.”

Schmitt & Schnabel, of Merrill, for appellant.

Eberlein & McCarthy, of Shawano, for respondent.

FOWLER, Justice.

We assume that the findings of both jury and trial judge recited in the statement of facts preceding the opinion are supported by the evidence. The crucial point of the case is not whether the facts are as found, but whether the facts found constitute a valid contract. If they do the judgment was correct.

[1] The appellant's principal assignment of error is that, as the decedent's property consisted partly of real estate, the oral agreement to give it to the claimant by will is void. It is void as to the real estate for want of a writing expressing the consideration signed by the party charged as required by sec. 240.08, Stats., and being void as to the real estate and being indivisible, it is void in its entirety and of no force except to rebut the presumption that the services to be performed by the daughter were gratuitous. A long line of cases support this contention. Ellis v. Cary, 74 Wis. 176, 42 N.W. 252, 4 L.R.A. 55, 17 Am.St.Rep. 125;Martin v. Martin's Estate, 108 Wis. 284, 84 N.W. 439, 81 Am.St.Rep. 895;Loper v. Sheldon's Estate, 120 Wis. 26, 97 N.W. 524;Dixon v. Sheridan, 125 Wis. 60, 103 N.W. 239;Laughnan v. Laughnan's Estate, 165 Wis. 348, 162 N.W. 169;Estate of Leu, 172 Wis. 530, 179 N.W. 796;Estate of Brill, 183 Wis. 282, 197 N.W. 802;Murphy v. Burns, 216 Wis. 248, 257 N.W. 136;Estate of Goyk, 216 Wis. 462, 257 N.W. 448. The rule of these cases has been so firmly established in this jurisdiction by the decisions of this court that there is no need to consider cases to the contrary in other jurisdictions if there be such.

The trial judge in a short written opinion filed, states that he considered the case ruled by Estate of McLean, 219 Wis. 222, 262 N.W. 707, and Torgerson v. Hauge, 34 N.D. 646, 159 N.W. 6, with a note in connection reported in 3 A.L.R. 172. The McLean Case is not in point because the oral contract there made did not involve the statute of frauds. The testator there did not agree by his will to give the legatee any real property. His agreement would be fully met by a bequest of personal property. Moreover, the agreement there made was fully executed on both sides. The legatee released his claim for damages and the testator executed the will. The one was the consideration for the other. The case involved no performance of service by the legatee.

In the Torgerson Case, while it involved on the one hand an oral agreement to will a particular farm and on the other an agreement to perform the kind of service here involved, the agreement was followed by the one who was to perform the service taking possession of the farm, making improvements thereon, and performing the service promised for fifteen years. The ruling in that case was based upon the doctrine of specific performance which takes a case out of the statute of frauds. That case is like that of Estate of Powell, 206 Wis. 513, 240 N.W. 122, where an oral contract to will or convey a farm in consideration of performance of service similar to that here involved, was enforced because of specific performance by the promisor of the service by taking possession of the farm, making improvements thereon and continuance of the service up to the time of the death of the other party to the contract.

Counsel for respondent cites several other Wisconsin cases which he contends support the instant judgment to which we will briefly refer. Dilger v. McQuade's Estate, 158 Wis. 328, 148 N.W. 1085, and Estate of Soles, Kelly v. Bowen, 215 Wis. 129, 253 N.W. 801, both involved contracts in writing, established by letters, which expressed the consideration for the transfer of the property, i. e., the services to be performed. Estate of Powell, supra, has already been referred to. Estate of Getchell, 211 Wis. 644, 247 N.W. 859, is like the Powell Case. In Estate of Lube, 225 Wis. 365, 274 N.W. 276, the contract was made by letters. In this case a will was executed by one who promised to transfer all his property but the will so made pursuant to his promise “expressed the consideration” as services to be performed, and his signature to the will, and the consideration therein expressed satisfied the statute of frauds although the will itself was void for insufficiency of its execution. The instant will did not express such consideration or any other.

Two cases of joint wills are relied on by respondent as supporting the judgment. In the first, Doyle v. Fischer, 183 Wis....