Sipple v. Zimmerman

• Decision Date: 28 June 1968
• Citation: 39 Wis.2d 481,159 N.W.2d 706
• Parties: Aurora SIPPLE, Appellant, v. R. E. ZIMMERMAN, Special Admr. of the Estate of Lena Kraft, Respondent.
• Court: Wisconsin Supreme Court

Page 706

159 N.W.2d 706

39 Wis.2d 481

Aurora SIPPLE, Appellant, v. R. E. ZIMMERMAN, Special Admr. of the Estate of Lena Kraft Respondent.

Supreme Court of Wisconsin.

June 28, 1968.

Doar, Drill & Norman, New Richmond, for appellant.

Peterson, Thedinga & Peterson, Menomonie, Wilcox & Wilcox, Eau Claire, for respondent.

BEILFUSS, Justice.

Two major issues are presented in this appeal:

1. Does the 1953 document fail as a contract because not properly executed as a will?

2. Are there issues of fact raised by any of the affirmative defenses alleged by the defendant which cannot be resolved from the pleadings, involving

(a) The sufficiency of the consideration given Lena Kraft for her agreement;

(b) The plaintiff's execution of the compromise agreement;

(c) The plaintiff's delay in instituting the present action;

(d) Fraud by William F. Kraft perpetrated on Lena Kraft in the signing of the joint will.

In overruling the plaintiff's demurrer to the defendant's answer, the trial court stated in its order it was of the opinion that each defense in the answer raised an equitable defense and was proper. The appeal is from this order. The respondent contends the order overruling the demurrer should be sustained.

The first alleged defense of the defendant, creating the major issue on this appeal, is that there was no contract created by the signing of the 1953 will by Lena Kraft. The defendant admits Lena Kraft signed the document but alleges her signature was not witnessed and cannot be considered a valid will of Lena Kraft. The plaintiff, by demurrer to the answer, admits the proper formalities were not followed. 'Of course, it is elementary that a demurrer to a pleading admits all material facts properly pleaded.' Banschbach v Meuer (1941), 237 Wis. 454, 462, 297 N.W. 402, 406. The defendant contends the plaintiff also admits by her demurrer that there is no contract in existence. This is not so. While the defendant does deny the existence of a contract in the answer demurrer to, the denial that this joint will is a contract is a conclusion of law. Conclusions of law as opposed to matters of fact are not deemed admitted by demurrer.

'By demurring to the complaint the defendant admitted all of the facts well pleaded therein but it did not admit conclusions of law nor did it admit erroneous conclusions drawn from such facts by the pleader even though the conclusions bear the semblance of statements of facts. Northwestern Mut. Life Ins. Co. v. State, 173 Wis. 119, 180 N.W. 138; Olsen v. Ortell, 264 Wis. 468, 59 N.W.2d 473.' Jenkins v. State (1961), 13 Wis.2d 503, 507--508, 108 N.W.2d 924, 927.

The first question presented, then, is whether Lena Kraft, by signing the 1953 document with her husband as a joint will, entered into a contract albeit the document is not valid as her will.

The language of the 1953 document is contractual. The opening paragraph states that William F. Kraft and Lena Kraft 'mutually convenanted and agreed' and 'hereby mutually covenant and agree, each in consideration of the promise and act of the other' to provide for the disposition of their property as set forth in the document. The defendant urges that no contract exists because the will was invalid as to Lena Kraft and there being no valid will there is no basis for the contract.

The fact that the will is invalid as to one of the parties is not determinative of whether a contract existed. The mere fact that the formalities necessary to make a will were not present does not render the document invalid as a contract. This court has recognized that even where a mutual or reciprocal will is revoked by one party the contract upon which the reciprocal wills were executed still remains in force and effect:

'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 valid contract and such enforcement is necessary for the prevention of fraud.' Doyle v. Fischer (1924), 183 Wis. 599, 606, 198 N.W. 763, 765. See also Estate of Schefe (1952), 261 Wis. 113, 119, 52 N.W.2d 375. the Doyle Case, supra, also points out that even without the contractual terms the mere execution of a joint will is conclusive evidence of a contract in cases such as this:

'The fact that these wills constitute a single document, that they were executed at the same time, that each of the testators knew of the provisions made in the will of the other, that some of the children were provided for by one, and the others by the other, testator, conclusively indicates that the two wills resulted from a mutual agreement between the testators and that their provisions were in accordance with such prior agreement.' Doyle v. Fischer, supra, 183 Wis. at p. 608, 198 N.W. at p. 766.

Recently, in Estate of Hoeppner (1966), 32 Wis.2d 339, 343, 145 N.W.2d 754, the above rule was reaffirmed as was the following rule which had been adopted by this court in Schwartz v. Schwartz (1956), 273 Wis. 404, 411, 78 N.W.2d 912, 916:

"A will which is jointly executed may furnish in itself prima facie proof that it was executed pursuant to a contract between the testators, notwithstanding it does not expressly purport to have been made pursuant to contract, does not contain the words 'contract' or 'agreement,' or include an express promise that the survivor will carry out the dispositions contained in the will."

In both Doyle v. Fischer, supra, and Estate of Hoeppner, supra, no question was raised as to the sufficiency of the execution of the documents as wills by either party. However, the underlying rationale of both cases was that it is the contract and not necessarily the will that is to be enforced.

The defendant cites the case of Ireland v. Jacobs (1945), 114 Colo. 168, 163 P.2d 203. In that case a joint will was executed by a husband and wife. The husband died first and the will was probated as his last will. The wife received the entire estate. On the wife's death the same will was again offered for probate, but probate was refused because there was a lack of proof she had complied with the statute governing execution of wills. The court held that where was a failure of consideration where one of the wills failed. A quotation from the case is as follows:

'That Frederick should precede in death, was not foreseeable; but assuming that Bertha had been called first, What then? Had she died first, * * * the will as hers, would have been denied probate. Frederick would then have taken as provided by statute and the agreement in the will would have failed for lack of consideration. To hold this contract valid, to hold that there was mutual consideration, it would be necessary for the trial court, or this court, to read into the will words that are lacking; to write into the will that Frederick's death prior to Bertha's was preordained. Even such far-fetched reasoning upon our part would be futile in the end, for while courts must interpret a will as best they can, they are powerless to draft and execute a will out of the whole cloth. If Bertha left no will there is nothing before us to interpret. Frederick's administrators would not have been bound by the will because there was none, and there being no promise for a promise the trust would fail.'

However, under our concept of agreements to mutually dispose of the separate property of the parties it is not a will which is sought to be enforced in such actions but the contract. The same is true where mutual or reciprocal wills are executed pursuant to contract and later one party revokes his will. The revoked will is no longer a will, but because of the existence of the contract, its terms are enforced.

The signing of the document in the instant case must be taken to embody a contract between Lena Kraft and her husband. The contract was legally binding unless mutually rescinded by the parties to it. William K. Kraft fulfilled his part of the bargain by leaving the will of 1953 in force. It is well settled that when there is a mutual or reciprocal promise to dispose of separate property at death in a certain manner, and one party does fulfill his part of the agreement, the other party is bound irrevocably:

'We stated in Schwartz v. Schwartz, supra, 273 Wis. page 410, 78 N.W.2d page 915:

"After one of the two testators has died it is beyond his power to consent to the survivor modifying or revoking the testamentary disposition which had been agreed was to take place upon the death of the survivor.'

'The terms of the testamentary disposition of 1949 may, therefore, be enforced in equity. The execution of a subsequent will, not being in conformance with a mutually agreed upon disposition, constituted a breach of contract.' Estate of Hoeppner, supra, 32 Wis.2d p. 345, 145 N.W.2d p. 758. See also Boyle v. Fischer, supra, and Pederson v. First Nat. Bank of Superior (1966), 31 Wis.2d 648, 143 N.W.2d 425.

Absent any countervailing defenses, we conclude that there was a valid enforceable contract between William F. and Lena Kraft to dispose of their property in the manner specified in the 1953 document. The defendant, however, does allege in his answer affirmative defenses.

Two of the affirmative defenses held by the trial court to be properly alleged involved the consideration received by Lena Kraft for her promises to her husband. The defenses are that there was no consideration, and that there was insufficient consideration and therefore it would be unconscionable to enforce it in equity.

In the 1953 document, William Kraft created a trust of all his property to become effective upon his death. Under the terms of the trust, Lena Kraft was to receive one-fourth of the income of this trust for a period of 15 years after the death of William. In return, Lena promised to have her property transferred to the same trust upon her death. She further agreed to transfer her property to the trust...