Pederson v. First Nat. Bank of Superior

• Decision Date: 01 July 1966
• Citation: 31 Wis.2d 648,143 N.W.2d 425
• Parties: Ruth PEDERSON et al., heirs and legatees under the 1957 Will of Bertha Laursen, Deceased, Appellants, v. FIRST NATL. BANK OF SUPERIOR, Exr. of the 1961 Will of Bertha Laursen, decd., et al., Respondents.
• Court: Wisconsin Supreme Court

Page 425

143 N.W.2d 425

31 Wis.2d 648

Ruth PEDERSON et al., heirs and legatees under the 1957 Will

of Bertha Laursen, Deceased, Appellants, v. FIRST NATL. BANK OF SUPERIOR, Exr. of the 1961 Will of

Bertha Laursen, decd., et al., Respondents.

Supreme Court of Wisconsin.

July 1, 1966.

Daniel I. D'Amico, Cumberland, for appellants.

George W. Peterson, Balsam Lake, for Estelle Rasmussen.

E. Nelton, Balsam Lake, for First Nat. Bank.

L. G. Negler, Balsam Lake, for minor heirs under 1961 will.

HEFFERNAN, Justice.

The facts are substantially undisputed. It appears that Anton and Bertha Laursen were in their mid-eighties in 1956 when they requested Attorney D. E. Jensen to prepare wills. Discussions between the Laursens and Attorney Jensen led to the preparation of wills and an agreement which purported to limit the right of the parties to alter these wills. The general effect of the 1956 testamentary transaction was the execution of separate wills that were mutual and reciprocal and identical in that they bequeathed all of the property of each to the surviving spouse and provided, in the event of the predecease of the other spouse, that the residue would go to an agreed and identical group of beneficiaries.

Sometime prior to these proceedings, the 1956 agreement was misplaced or lost.

In 1957, at the request of Mr. and Mrs. Laursen, Attorney Jensen prepared new wills, and on August 21 of that year they were executed. These wills also were reciprocal and mutual and, although not exactly identical to each other, they in general carried out the scheme of distribution set forth in the wills of 1956, that is, the whole of the estate was to be given to the surviving spouse and, in the event the other spouse did not survive, distribution was to be made to blood relatives in the families of both husband and wife. At the time these wills were executed, Mr. Laursen, in the presence of Attorney Jensen, stated that the 1956 agreement should stand for these wills also. Before trial, Jensen did not recall the exact manner in which the parties referred to the 1956 agreement but in a deposition taken in December of 1964 stated that the parties merely said, 'shall we leave it this way?' It is not clear from the record whether the parties were referring to the 1956 agreement or whether this was an expression of satisfaction with the 1957 wills prepared by Mr. Jensen.

After the death of Mr. Laursen in 1958, Mrs. Laursen prepared other wills, the first of which was similar to the wills drawn earlier. However, in 1961, she executed a will which is substantially different from the earlier versions. It eliminated all the blood relatives of Anton Laursen as beneficiaries and made numerous other changes. This will was admitted to probate in the county court of Polk county. This 1961 will is the one that the appellants claim is violative of the earlier contractual agreement.

Subsequent to the commencement of this litigation, Attorney Jensen testified in regard to the contents of the agreement which was executed contemporaneously with the execution of the 1956 wills. There was no doubt that an agreement was entered into between the Laursens in 1956 and the trial court so found, nor have the respondents contended that such an agreement did not exist. The only question concerning the document is its contents and the legal effect to be attributed to it in view of the circumstances. In a deposition given before trial, Attorney Jensen stated that, although he did not recall the specific wording, the wills were to be of a contractual nature and were not to be changed. At the time of trial, Attorney Jensen, although not claiming to know the exact wording of the instrument that he drafted, stated that the contents of the agreement were substantially as follows:

'Whereas the parties have made and executed mutual Wills and whereas they intend them to be of contractual nature, it is hereby agreed by and between the parties hereto that these Wills will not be changed unless it is mutually agreeable to each party.'

One of the persons concerned with the 1956 wills was H. H. Lindgren, a banking associate of Mr. Laursen. The 1956 wills provided that Mr. Lindgren could purchase Mr. Laursen's stock of the local bank at a stipulated price. Mr. Lindgren testified that Mr. Laursen showed him the 1956 wills and the accompanying agreement, which provided: 'Those wills were not to be changed without mutual consent.'

The trial court, though conceding that this testimony sufficiently proved the existence of the 1956 ageement, concluded that the contents were not established by the proper quantum of proof. This court has held that, 'the contents of a lost instrument must be shown with particularity by strong and convincing evidence.' Bohnert v. Radke (1926), 189 Wis. 203, 206, 207 N.W. 284, 285; Heath v. Cuppel (1916), 163 Wis. 62, 67, 157 N.W. 527. See also 54 C.J.S. Lost Instruments § 13 e, p. 814.

In connection with contracts to make a will, we have imposed a similar requirement of proof. As we stated in the Estate of McLean (1935), 219 Wis. 222, 227, 262 N.W. 707, 709:

'The rule is that such contracts must be established, not only by a preponderance of the evidence, but by evidence that is clear and convincing. A mere preponderance of the evidence will not support such a contract. Such a contract must be definite enough in its terms to permit of specific performance or to indicate the damages to be allowed for it breach.'

We conclude that the trial judge was in error in finding that the evidence was not sufficiently clear and convincing to establish the contents of the lost agreement. We note in the first place that Attorney Jensen's testimony left no doubt of the purport of the 1956 agreement. Although his testimony at times varied slightly, there was absolutely no question that the expressed intent of the agreement was to make the wills contractual. Mr. Lindgren also corroborated the contents of that agreement and stated that the wills 'were not to be changed without mutual consent.'

Under these circumstances and in the absence of any evidence to the contrary, we must conclude that...