Predmore v. Brill's Estate (In re Brill's Estate)

• Decision Date: 11 March 1924
• Citation: 197 N.W. 802,183 Wis. 282
• Parties: IN RE BRILL'S ESTATE. PREDMORE v. BRILL'S ESTATE.
• Court: Wisconsin Supreme Court

183 Wis. 282

197 N.W. 802

IN RE BRILL'S ESTATE.PREDMORE

v.BRILL'S ESTATE.

Supreme Court of Wisconsin.

March 11, 1924.

Appeal from Fond du Lac County Court; A. E. Richter, Judge.

In the matter of the estate of Charles E. Brill, deceased. Claim by Harriet E. Predmore. From a judgment, the claimant appeals, and the estate files a cross-appeal. Affirmed.

Charles Brill died intestate on March 29, 1922. A claim was filed against his estate based upon services rendered between 1904 and 1922; the claimant being a cousin of the deceased.

Deceased had resided on a farm near Rosendale, Wis. The claimant lived with her husband in Simpson, Minn. During the period of years between the dates mentioned, claimant visited at the home of deceased about three weeks every year, and while there, according to her testimony, she did all the housework and at times took care of deceased when he was sick.

The services rendered by claimant consisted housework, nursing, and preparing meals. The expenditures listed by her included items for railroad fare to and from Rosendale, and also for livery hire.

The estate of deceased consisted of a farm inventoried at $10,600, and about $500 worth of personal property. It was alleged by claimant that deceased had expressly agreed in consideration of services furnished, and to be furnished, that he would pay her by a provision in his will 25 per cent. of all the property of which he should die possessed.

The trial court found that in the summer of 1909 a verbal agreement was entered into between deceased and the claimant, whereby deceased promised to will to the claimant 25 per cent. of all the property of which he might die possessed, in consideration of the care and board which she had furnished him in the past and was to furnish in the future up to the time of his death, and that for such consideration the claimant agreed to take care of deceased as she had been doing in the past, namely, to visit him at his home in Rosendale, and help in the care of his home and himself, and to take care of deceased in her own home in Minnesota, annually, as he might wish; and, in case he died first, she agreed to care for his wife during the remainder of her life, and, in case the wife died first, she agreed to take care of him during the remainder of his life.

It was further found by the court that deceased consulted his lawyer and instructed him to draw up an agreement as above outlined; that this agreement was so drawn up and left with the attorney; that it was never delivered to Harriet Predmore, the claimant; that in the following year he told the husband and son of claimant that he had fixed up the agreement so solid that it could never be broken, and that claimant would get 25 per cent. of his property upon his death.

It is also found that the deceased learned that the agreement above mentioned had been lost; that thereafter he went to another attorney and instructed him to draw up agreement like the lost one and retain it in his possession; that the agreement was so drawn, and was later destroyed by a fire which occurred in the office of the attorney; that claimant was informed of the first agreement which had been drawn up; and that thereafter she performed services and made expenditures in reliance upon this agreement.

The trial court found that the services rendered to deceased and the expenditures made during the six years immediately preceeding his death were of the value of $556.90. He found as conclusions of law that by reason of the nondelivery of the agreements above mentioned they were void and gave claimant no right, except to furnish evidence of the intention of deceased concerning the matters referred to in the agreements; that by reason of the statute of limitations, compensation for services furnished prior to the six years before the death of deceased could not be recovered for.

Judgment was ordered accordingly.Sutherland, Hughes & Sutherland, of Fond du Lac, for claimant.

Samuel M. Pedrick, of Ripon, for cross-appellant.

JONES, J. (after stating the facts as above).

In this case both parties appeal from the judgment. The plaintiff claims that judgment should have been rendered in the way of specific performance, giving to her one-fourth of the estate according to the alleged agreement. The defendant appeals, urging that the plaintiff was entitled to no recovery whatever.

[1] Both parties are agreed that the verbal contract was rendered void because it was an attempted contract for the transfer of land or an interest therein which must be in writing. Section 2304, Stats.; Estate of Leu, 172 Wis. 530, 179 N. W. 796;Martin v. Estate of Martin, 108 Wis. 284, 84 N. W. 439, 81 Am. St. Rep. 895;Loper v. Estate of Sheldon, 120 Wis. 26, 97 N. W. 524;Taylor v. Thieman, 132 Wis. 38, 111 N. W. 229, 122 Am. St. Rep. 943;Nelson v. Christenson, 169 Wis. 373, 172 N. W. 741. It is now well settled in this state by these cases that a void agreement of this character can be resorted to for no purpose except to rebut the presumption, where it exists, that the services were gratuitously rendered.

Counsel for defendant contend that under such cases as Estate of Kessler, 87 Wis. 660, 59 N. W. 129, 41 Am. St. Rep. 74, and Schultz v. Andrus' Estate, 178 Wis. 358, 190 N. W. 83, it must be presumed that, since the parties were relatives by blood, neither party intended to receive or pay compensation for services, but that they were rendered gratuitously.

It was further argued that there was no sufficient testimony to rebut this presumption, since the only testimony was that of the husband and son of the plaintiff, who were deeply interested parties.

[2] The trial court saw and heard the witnesses and found that the oral agreement alleged was entered into. There was no contradictory testimony. The finding of the court on that subject cannot be disturbed.

Defendant's counsel also contend that there was no sufficient proof to sustain the finding as to the value of the services and the liability for the expenses incurred by the claimant. There was considerable testimony on these subjects. That of defendant's witnesses tended to show that while the plaintiff was at the home of the deceased the relation was that of visitor. On the other hand, there was quite convincing testimony that during the latter part of the life of decedent, and in his last illness, quite important and valuable service was rendered. We do not consider that the finding of the trial court on this branch of the case should be set aside.

[3] We now come to the consideration of plaintiff's appeal. It is clear that an agreement to execute a last will and testament cannot be specifically enforced, since such an action could only be brought in the life of the promisor, and no breach of the agreement can be assumed so long as he lives.

[4] But is seems well settled that if such a contract is sufficiently proved and the conditions relating to specific performance have been complied with, equity will enforce the contract by seizing the property agreed to be devised and imposing on it a trust in favor of the promisee.

[5][6] The contract must have a consideration, and there must be mutuality. It must be fair and just, and the proof of the contract must be definite and certain. These requisites are necessary under general rules relating to specific performance of contracts, and the general rule that specific performance rests in the sound discretion of the court applies.

There have been many decisions holding that contracts of this character for the performance of services, when fair and equal, could be specifically enforced, on the theory that it is entirely competent for a party to stipulate for the disposition of his property at the time of his...