Muhlhauser v. Becker, 7077.

CourtUnited States State Supreme Court of North Dakota
Citation37 N.W.2d 352,76 N.D. 402
Docket Number7077.
Decision Date27 December 1948

37 N.W.2d 352

76 N.D. 402

BECKER et al.

No. 7077.

Supreme Court of North Dakota

December 27, 1948

Rehearing Denied March 23, 1949. [37 N.W.2d 353] [Copyrighted Material Omitted] [37 N.W.2d 354]

Syllabus by the Court.

1. The trial court has power in a pending action (RC 1943, Sec. 28-1806) to enlarge the time for settlement of a statement of the case, or to allow a settlement after the time granted for settlement has expired.

2. On an appeal in a case triable de novo in the Supreme Court under RC 1943, Sec. 28-2732, which requires that the appellant must specify in the statement of case either that he desires a retrial of the entire case or of certain designated questions of fact, the failure of the appellant to include such specification in the statement of case does not deprive the [76 N.D. 403] Supreme Court of jurisdiction of the appeal. In such case the court has power upon application of the appellant to remand the record and afford the appellant opportunity to apply to the trial court to have the statement of case amended by having a specification of the question or questions of fact that appellant desires to have the Supreme Court review embodied in the statement of the case.

3. A compromise of doubtful rights by claimants to the property of a decedent is a sufficient consideration to support an agreement of settlement adjusting the rights of the claimants.

4. 'The subject matter of litigation is at all times under the exclusive control of the parties, and the parties to an action have a right to settle their case independently of their attorneys.' Hauser et al. v. Security Credit Co., 66 N.D. 399, 266 N.W. 104.

5. Where a compromise agreement is executed without the presence of the attorney for some of the parties, this circumstance does not, in itself, invalidate the agreement, but it may be taken into consideration where there is competent evidence of undue influence, intimidation, misrepresentation, fraud or coercion.

6. Where the terms of a written agreement are clear and simple, a party to such agreement will not be heard to say that he misunderstood such agreement.

7. The law looks with favor upon compromise agreements.

8. Specific performance is a proper remedy to enforce a compromise agreement.

9. Courts will enforce family settlement agreements of estates when free from fraud and creditors are not involved even though the terms of the agreements do not follow the laws of descent and distribution.

10. Performance is not necessary to sustain a valid compromise agreement.

[76 N.D. 404] [37 N.W.2d 355]

11. The county court is not a court of general equity jurisdiction and is therefore without authority to try or determine any question of fraud or coercion raised in connection with a compromise agreement.

Sullivan, Fleck, Kelsch & Lord, of Mandan, Milton K. Higgins, of Washburn, and Floyd B. Sperry, of Golden Valley, for appellants.

Murray & Murray, of Bismark, for respondents.

WM. H. HUTCHINSON, District Judge.

One, Fritz Gappert, a resident of Morton County, died March 11, 1938, intestate, leaving real and personal property. The above named plaintiff, Augusta Borner, is the sister of the decedent, Fritz Gappert. On April 5, 1938, she filed a petition in the county court of Morton County for letters of administration. Since that date there has been continuous litigation. Several appeals have been heretofore made to this court. Borner et al. v. Larson et al., 70 N.D. 313, 293 N.W. 836; Muhlhauser et al., v. Becker et al., 74 N.D. 103, 20 N.W.2d 353; Muhlhauser et al. v. Becker et al., 74 N.D. 35, 20 N.W.2d 363; Muhlhauser et al. v. Becker et al., 74 N.D. 90, 20 N.W.2d 364. A reference to these cases will disclose the history of the litigation.

In the petition for letters of administration filed by Augusta Borner it was alleged that the above named Selma Gappert Becker and George Gappert (who were named as respondents in the petition) 'claim to be the adopted children of the decedent; that your petitioner has no information relative to such adoption and denies that they are the legally adopted children and heirs at law of the decedent.' Selma Gappert Becker and George Gappert filed an answer and cross petition 'Wherein they set forth that they are the adopted children of the decedent, 'and consequently had and have the prior right of selecting an administrator.'' The county court granted the petition of Augusta Borner and letters of administration were issued to [76 N.D. 405] F. C. McCagherty, the person nominated by her in the petition. Selma Gappert Becker and George Gappert appealed to the district court. The matter was tried in the district court pursuant to such appeal, and the district court held that Selma Gappert Becker and George Gappert were the adopted children of the decedent and consequently had the prior right in selecting an administrator. The plaintiffs appealed to this court from the decision of the district court. This court reversed the decision of the district court and held that the evidence did not establish that Selma Gappert Becker and George Gappert were the adopted children of the decedent and that the district court was in error in so holding and that consequently Selma Gappert Becker and George Gappert were 'not entitled to administration' and were 'not entitled to nominate an administrator.' Borner v. Larson, 70 N.D. 313, 293 N.W. 836, 840.

In February 1941 Selma Gappert Becker and George Gappert filed a petition in the county court that the letters of administration formerly issued to F. C. McCagherty be revoked. The petition came on for hearing on July 23, 1941, but apparently the hearing was continued (74 N.D. 92, 20 N.W.2d 365), in any event no order was made. The evidence discloses that the parties to this litigation conferred on several occasions without the presence of their attorneys for the purpose of trying to settle all matters in difference and to agree upon some equitable division of the property left by Fritz Gappert, deceased. In August 1941 terms of settlement were finally agreed upon, and all the parties went to the office of R. F. Gallagher, the then State's Attorney of Morton County, who had no connection with the litigation and had represented none of the parties, and engaged him to reduce their agreement to [37 N.W.2d 356] writing. Thereupon, Mr. Gallagher did prepare a written agreement. The agreement was not executed by any of the parties but each of the parties was given a copy. Later it was discovered that in the agreement drawn by Mr. Gallagher errors had been made in the names of the parties and that also there had been omitted from the agreement a clause which had been agreed upon providing for the payment out of the personal property of the Gappert Estate of the sum of $250 to Selma Gappert Becker and [76 N.D. 406] $250 to George Gappert to apply upon expenses and attorneys' fees incurred by them in the past litigation.

Nothing further was done to complete the settlement until in April 1942, when a further conference was held without the presence of attorneys, and the parties thereafter met in the offices of Sullivan, Fleck and Higgins, who were the attorneys for the legal heirs of the deceased, and without the presence of J. K. Murray, attorney for Selma Gappert Becker and George Gappert, and there requested the preparation of a written compromise agreement to be executed by all the parties. On April 17, 1942, the following agreement was executed by all the parties:

'This Agreement made and entered into this 17th day of April, 1942, by and between Emilie Muhlhauser, Matilda Muhlhauser, Bertha Ellwein, Henry Gappert, August Gappert Fritz Gappert, Theodore Gappert, Raymond Gappert, Charlotte Gappert, Agustina Borner, Emelie Wolf, Henry C. Holle, heirs at law of Fritz Gappert, also known as Frederick Gappert hereinafter called the first parties, and Selma Becker and George Gappert, hereinafter called the second parties,
'Whereas, Fritz Gappert, also known as Frederick Gappert, late of New Salem, Morton County, North Dakota, died intestate leaving an estate consisting of real and personal property.
'And whereas, the probate of said estate is now pending in the county court of Morton County, North Dakota, and F. C. McCagherty of New Salem, North Dakota is the administrator of said estate,
'And whereas, the parties of the second part have made claim to a share and interest in said estate by reason of their claim that they were adopted as the children of said decedent,
'And whereas, such claim by the said parties of the second part has led to disputes and litigation between the parties of the first part and the said parties of the second part,
'And whereas, the parties hereto are desirous of composing, adjusting, compromising and settling finally such disputes and litigation,
'In consideration of the premises and the sum of $1.00 paid [76 N.D. 407] by the said second parties to the said first parties, the receipt of which is hereby acknowledged, the parties hereto have agreed as follows:
'(1) Out of the moneys in the hands of the administrator, after the expense of administration and costs and expenses of the said first parties, incurred in said litigation in the county, district and supreme court, have been fully paid, and the sum of $250.00 to each of said second parties for their attorneys fees and expenses, the administrator of said estate shall pay to the said second parties one-fourth of all the moneys remaining in his hands.
'(2) The administrator shall deliver to the said George Gappert, one of the second parties herein, the deeds executed by the said decedent, as grantor, to the said George Gappert, now in the possession of said administrator, to the lands therein described, as well as the deed by said Grantor to Gordon, Richard and Clayton

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2 cases
  • Hodous v. Hodous, 7122A.
    • United States
    • United States State Supreme Court of North Dakota
    • 22 d2 Março d2 1949
    ...the defendant be not required to pay said sum in order to purge himself of this contempt. In all other respects the judgment is affirmed. [76 N.D. 402] NUESSLE, C. J., BURKE and CHRISTIANSON, JJ., and A. J. GRONNA, District Judge, concur. BURR, J., did not participate. ...
  • In re Tooz' Estate, 7111.
    • United States
    • United States State Supreme Court of North Dakota
    • 10 d1 Janeiro d1 1949
    ...the hearing of an appeal either in the briefs or in oral argument. Muhlhauser et al. v. Becker et al., currently decided, 76 N.D. ----, 37 N.W.2d 352; Ellison v. City of La Moure, 30 N.D. 43, 151 N.W. 988; McCaull-Webster Elevator Co. v. Adams, 39 N.D. 259, 167 N.W. 330, L.R.A.1918D, 1036; ......

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