Schefe's Estate, In re

• Decision Date: 04 March 1952
• Citation: 52 N.W.2d 375,261 Wis. 113
• Parties: In re SCHEFE'S ESTATE. SCHEFE et al. v. CROWLEY et al.
• Court: Wisconsin Supreme Court

Page 375

52 N.W.2d 375

261 Wis. 113

In re SCHEFE'S ESTATE SCHEFE et al. v. CROWLEY et al.

Supreme Court of Wisconsin.

March 4, 1952.

On April 11, 1938 George Schefe and Anna, his wife, executed a joint will, parts of which are as follows:

'Second. All our property being held or intended to be held by us jointly, share and share alike, both real and personal, we have mutually promised and agreed with each other by separate contract in writing of even date to make this joint disposition of our property effective upon the death of the survivor of us, and that neither of us will revoke or destroy this will or make any other will or codicil without the full consent and agreement of both, and after the death of one of us to make no change of any kind as to disposition or otherwise, except as limited in said written contract.

'Third. To the end that the survivor shall have the full ownership of our estate, and in case any doubt shall arise as to the joint interest of any of our property, we mutually give, devise and bequeath to each other all and any of our property which may be questioned as not held in joint tenancy at the time of death of either of us. * * *'

By its Fourth paragraph it devises and bequeaths to their son Elmer upon the death of the surviving testator their homestead farm, their farm personal property and household furnishings, subject to the payment charged upon the real estate of $1,000 to each of the three daughters, Irma, Florence and Evelyn. By the terms of the Fourth paragraph it is provided that in the event that it should become necessary during the lifetime of the survivor to dispose of this property the son Elmer should receive $6,000 as an equivalent. This paragraph contains the recital: 'This provision for Elmer Schefe is made in consideration of his working for us without pay, and to compensate him for the injury to his hand, and shall take absolute priority over all provisions for our other children, but in such case each of our said daughters shall next out of the residue receive One Thousand Dollars ($1,000.00) as hereinbefore bequeathed to each.'

Specific legacies are contained in paragraph Fifth.

By the terms of paragraph Sixth the residue of the estate is devised and bequeathed in equal shares to the three daughters.

On the day of the execution of the will the testators executed an agreement as follows:

'Whereas, the first party and the second party, are husband and wife, and are the owners in joint tenancy of a certain farm located in Winnebago County described as: 'The North half of the Northeast quarter (N 1/2 NE 1/4) of Section One (1) Township Twenty (20) Range Sixteen (16) containing eighty (80) acres of land, more or less, according to government survey,' and personal property located therein; and the parties also hold and have agreed to hold as joint owners all other property which they now own or may hereafter acquire while both parties are living, so that upon the death of one their entire estate becomes the sole and exclusive property of the survivor, and,

'Whereas, the parties are now 73 years of age and being uncertain as to who shall be the survivor and having considered the ultimate disposition of their joint property after the death of the survivor, and having in consideration of the promises each to the other mutually agreed to a joint disposition thereof effective upon the death of the survivor to the children of the parties and as to what each shall equitably receive, especially in regard to their son, Elmer Schefe, who for many years worked on their farm without pay, and was permanently injured while doing such work for which he was not compensated;

'Now, Therefore, It is mutually agreed in consideration of the promises one to the other made as herein specified:

'1. That immediately upon the execution and delivery of this agreement the parties shall make, publish and declare the last will and testament in the joint form set forth in Exhibit 'A' hereto annexed and hereby made a part hereof, as their joint last will and testament.

'2. That each party hereto expressly covenants with the other hereto not to revoke, cancel, annul, modify, amend or change such last will and testament, either in whole or in part, during the life of either party at any time, and covenants that he or she will permit such will to stand irrevocably up to the time of his or her death.

'Provided, that nothing herein shall be construed to prevent the parties from making a disposition of any of the joint property by joint action of the parties while both are living, and the survivor may make a sale or transfer (other than by will) of the property, other than said farm and personalty thereon, for his own use and maintenance, and may convert the farm and personalty thereon into cash when in good faith necessary for the maintenance and support of the survivor, or to preserve or prevent loss thereon. In case of such sale, the survivor shall keep and preserve the balance so that the dispositions of said last will and testament may be as nearly as possible carried out as intended by the parties.'

Anna Schefe did on October 31, 1940 leaving no separate estate. Shortly thereafter George left the farm to reside for a time with the daughter, Evelyn, and then with the daughters, Irma and Florence. In July, 1948 Florence was adjudged an incompetent which she still is. Irma died intestate on February 7, 1949, leaving an estate consisting of about $10,000 in savings account and her father her sole heir at law. In proceedings had upon the administration of her estate the balance, $8,186.12 was assigned to her father.

On May 12, 1949 George made another will which provides in substance that one-third of the property affected thereby should be held in trust and administered for the benefit of the incompetent daughter, Florence. The remainder over upon her death was to go to the grandchildren, Arthur Borchardt, Jr., and Darlene Ann Borchardt, and the balance of two-thirds was to go outright to the daughter, Evelyn Borchardt. It ackowledges the existence of the joint will and states, 'I have been advised that I have the right to make and publish this to be my last Will and Testament,' and, further, 'All former wills by me singularly made, are hereby revoked.'

Upon the death of George on May 26, 1950 the son, Elmer, made petition for the probate of the joint will. A petition was also filed by the daughter, Evelyn, for the probate of the second will. Both wills were admitted to probate. Elmer and Florence, the latter by her guardian ad litem, each made claim 'under express contract for the right, title and interest in and to the estate of said decedent, real and personal, to which he became entitled by virtue of and as provided for him in the Last Will and Testament of said decedent dated April 11, 1938.' Objection to the allowance of each of the claims was filed. Judgment was entered on July 23, 1951, as follows:

'It is Adjudged and Decreed:

'1. That the joint will of George Schefe and Anna Schefe, his wife, dated April 11, 1938 was irrevocable only as to any property owned by the said George Schefe and Anna Schefe at the time of the death of Anna Schefe on October 31, 1940.

'2. That the agreement dated April 11, 1938 signed by George Schefe and Anna Schefe related only to property that they both owned at the time of the death of the first of them, namely, as of October 31st, 1940.

'3. That the beneficiaries mentioned in the joint will and agreement both dated April 11th, 1938 between George Schefe and Anna Schefe had a vested interest upon the death of Anna Schefe on October 31st, 1940 in the property mentioned in said joint will and agreement, subject only to being divested by the survivor of said George Schefe and Anna Schefe during his or her lifetime.

'4. That upon the death of Irma Schefe on February 7, 1949, her interest in the estate of George Schefe and Anna Schefe went to her heirs-at-law free and clear of any and all claims of any of the beneficiaries under the joint will of George Schefe and Anna Schefe.

'5. That George Schefe, as the father and sole heir-at-law of Irma Schefe, inherited the said Irma Schefe's interest under the joint will of George Schefe and Anna Schefe.

'6. That George Schefe had a right to dispose of all property and estate which he received and inherited from the estate of Irma Schefe, including any interest of the said Irma Schefe under the joint will of George Schefe and Anna Schefe.

'7. That the legacy of $1,000.00 under the joint will of George Schefe and Anna Schefe bequeathed to Irma Schefe did not lapse and was not divested by George Schefe during his lifetime.

'8. That the claims of Elmer Schefe and the Guardian ad Litem of Florence Schefe, incompetent, be and the same are hereby disallowed.'

The claimants appeal.

Benton, Bosser, Becker, Parnell & Fulton, Appleton, Williams, Williams & Meyer, Oshkosh, for Eugene G. Williams, guardian ad litem for Florence Schefe.

O'Leary, Joyce & Remley, and Cooke & Loehning, Neenah, for Gaylord C. Loehning, guardian ad litem for minors.

GEHL, Justice.

Do the provisions of the joint will and the agreement apply to the property acquired by the husband after the death of the wife?

While we may not overlook nor agnore the terms of the will in considering the question, the important instrument is the agreement; it is essentially the terms of the latter which control. The rights and obligations of the parties are determined by its terms. Indeed, it has been held that despite the contract the will may be revoked or modified, but if it is equity will interpose and permit specific enforcement of the agreement and prevent the perpetration of fraud which would result from its breach.

'It should be borne in mind that it is the contract and not the will that is irrevocable. The authorities generally hold that the will may be revoked, but the contract stands, and will be enforced by equity if it be a...