Munz v. Leuchtenberger

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtDOERFLER
PartiesMUNZ v. LEUCHTENBERGER ET AL.
Decision Date06 March 1923

180 Wis. 56
192 N.W. 475

MUNZ
v.
LEUCHTENBERGER ET AL.

Supreme Court of Wisconsin.

March 6, 1923.


Appeal from Waukesha County Court; David W. Agnew, Judge.

Action by Herman Munz against Minnie Leuchtenberger, Oscar Munz, and others. From an interlocutory judgment in partition of lands, defendant Oscar Munz appeals. Affirmed.

In 1913 one George Munz, being the owner of the real estate described in the complaint, consisting of 80 acres of farm lands and appurtenances, died testate, leaving him surviving

[192 N.W. 476]

his widow, Albertena Munz, and eleven children, among whom are the plaintiff and the defendant Oscar; and under and pursuant to the terms of the will, the widow took a life estate in said real estate, and after her death, upon payment of certain legacies, the residue was devised to the eleven children of the testator, in equal parts. Edward A. Munz, under the will and upon the probate thereof, was appointed the executor, and, in due course of legal proceedings in the county court, a final decree was entered in the year 1915, assigning the real estate in accordance with the will, while a certain amount of cash on hand was retained by said Edward and held by him in trust substantially in the same manner as though he continued in his official capacity as executor.

In the fall of the year 1917, the widow and children met and considered the advisability of leasing the farm to the defendant Oscar, upon such terms and conditions as would afford the widow a proper home and an income so as to provide for her future welfare. All of the children except the plaintiff, Herman, apparently co-operated to bring about this result, and Oscar thereupon had drafted a certain lease of the farm for a period of six years, containing the terms and conditions above referred to, which lease was submitted to all of the children, and signed by all excepting the plaintiff, and was also signed by Edward as executor.

The lease also, among other provisions, provided as follows:

“First parties (in which the widow and all of the children and the executor were named), for and in consideration of the sum of one dollar ($1) to them in hand paid, * * * do hereby grant to second party (meaning the defendant Oscar) an option for the purchase of said premises at any time during the period hereof or at the end thereof at the fixed price of one hundred forty dollars ($140) per acre, terms and conditions as to the manner and method of payment to be at said time agreed upon.”

From the record it appears that all of the children excepting George Oscar, and Edward testified that it was expressly understood that the lease and option were not to become effective unless all of the children and the widow joined in its execution.

The following, among other findings, was made by the trial court in its findings of fact:

“That at the time the said written instrument dated November 27, 1917, was signed by those of the defendants who signed the same, it was distinctly and expressly understood, covenanted and agreed by and between each, all and every of them that the said written instrument should not take effect as a contract between them, or any of them, and should not be delivered as a contract, and should not be in any way binding, operative or effective upon any of those who signed it, unless and until, and only in the event that said written instrument should be signed by all of the children and residuary...

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3 practice notes
  • Port Wash. State Bank v. Polonia Phonograph Co.
    • United States
    • United States State Supreme Court of Wisconsin
    • March 6, 1923
    ...Mengel v. Steber, 158 Wis. 309, 311, 149 N. W. 32. [4] From the time the note was taken by the plaintiff bank and an appropriate credit [192 N.W. 475]made upon the deposit account of the Laboratories, and up to and after the commencement of this action that account was constantly in excess ......
  • George F. Russell, Inc. v. Hickcox
    • United States
    • United States State Supreme Court of Wisconsin
    • January 8, 1929
    ...Rep. 935;Paulson v. Boyd, 137 Wis. 241, 118 N. W. 841;Union Investment Co. v. Epley, 164 Wis. 438, 160 N. W. 175;Munz v. Leuchtenberger, 180 Wis. 56, 192 N. W. 475. The admission of the testimony was proper. But we do not concur in the conclusion of the trial court that the corporation coul......
  • Kryl v. Mechalson
    • United States
    • United States State Supreme Court of Wisconsin
    • May 8, 1951
    ...happening of which was necessary before it became a binding contract. Paulson v. Boyd, 137 Wis. 241, 118 N.W. 841; Munz v. Leuchtenberger, 180 Wis. 56, 192 N.W. 475. 'Parol evidence is always admissible to show that a written contract not under seal was not to become effective until some fu......
3 cases
  • Port Wash. State Bank v. Polonia Phonograph Co.
    • United States
    • United States State Supreme Court of Wisconsin
    • March 6, 1923
    ...Mengel v. Steber, 158 Wis. 309, 311, 149 N. W. 32. [4] From the time the note was taken by the plaintiff bank and an appropriate credit [192 N.W. 475]made upon the deposit account of the Laboratories, and up to and after the commencement of this action that account was constantly in excess ......
  • George F. Russell, Inc. v. Hickcox
    • United States
    • United States State Supreme Court of Wisconsin
    • January 8, 1929
    ...Rep. 935;Paulson v. Boyd, 137 Wis. 241, 118 N. W. 841;Union Investment Co. v. Epley, 164 Wis. 438, 160 N. W. 175;Munz v. Leuchtenberger, 180 Wis. 56, 192 N. W. 475. The admission of the testimony was proper. But we do not concur in the conclusion of the trial court that the corporation coul......
  • Kryl v. Mechalson
    • United States
    • United States State Supreme Court of Wisconsin
    • May 8, 1951
    ...happening of which was necessary before it became a binding contract. Paulson v. Boyd, 137 Wis. 241, 118 N.W. 841; Munz v. Leuchtenberger, 180 Wis. 56, 192 N.W. 475. 'Parol evidence is always admissible to show that a written contract not under seal was not to become effective until some fu......

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