Torgerson v. Hauge

• Decision Date: 16 August 1916
• Parties: TORGERSON et al. v. HAUGE et al.
• Court: North Dakota Supreme Court

34 N.D. 646

159 N.W. 6

TORGERSON et al.

v.HAUGE et al.

Supreme Court of North Dakota.

July 21, 1916.

Rehearing Denied Aug. 16, 1916.

Syllabus by the Court.

The parents of Andrew Torgerson entered into an oral understanding with him in 1899, whereby he should reside with and care for them during their lives, and should receive their property. They executed and delivered to him their joint written will, constituting him sole devisee of all their property. Andrew purchased an adjoining quarter, sold his own homestead in another county, and for 15 years lived with his parents. Andrew died in June, 1914; the father in October following, at the age of 74 years. The mother was 74 years old at the time of the trial. Andrew leaves a widow and four minor children. Surviving him are these defendants, his four brothers and sisters and his mother. Six weeks after the death of Andrew his brothers and sisters procured the aged and enfeebled father and mother to make another will, revoking the former one and dividing all their property between themselves and the heirs of Andrew, one-fifth to each. The parents then leave and reside with the defendants. Andrew's widow protests, and offers to continue to support and care for them. The children of Andrew herein seek to enjoin the probate of the second will and maintain the status quo during the lifetime of the mother; and to define the estate of the minors in the real property and declare their interest therein a trust upon the fee thereof to be subsequently perfected by the probate of the first will or proceedings in equity; and to annul any pretended interest of the defendants under the purported second will, and to make suitable provisions meanwhile for the maintenance and care of the mother out of said homestead premises, title to which was acquired by final proof years ago, but subsequent to the delivery of the first will. Held, a will executed under such an agreement is both contractual and testamentary. Its contractual features cannot be later revoked by the testators without the consent of the beneficiaries where executed, and where equity should enforce its provisions.

Under the facts this contract under which said will was executed and delivered was substantially performed, and to such an extent that equity will grant relief equivalent to specific performance and fasten a trust upon the property for the benefit of the heirs of the beneficiary under the contract, as against any transferee or devisee.

A will so executed will be recognized in equity as a part performance of the contract, and becomes itself in its contractual features an enforceable contract.

That the title to the government homestead had not been vested by final proof in the testator when said will and contract was made was immaterial where subsequently made.

Such a contract for transfer and will executed thereunder is not a violation of, but instead is provided for and recognized by Rev. St. U. S. § 2291 (U. S. Comp. St. 1913, § 4532).

The mother of Andrew having joined in the will and acquiesced for years in the benefits under the contract, no homestead rights of hers are violated by equitable provision for her maintenance from said property or its proceeds. Equity has power under such circumstances to award possession as against her to the heirs of Andrew, where ample provision for her maintenance is made and she refuses to remain with them upon said premises.

No rights of the widow of Andrew are involved, she having formally waived any right in said premises to and in favor of her children, these plaintiffs.

Appeal from District Court, Wells County; Coffey, Judge.

Action by Maren G. Torgerson and another against Britha Hauge and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

B. F. Whipple and J. J. Youngblood, both of Fessenden, for appellants. H. J. Bessesen, of Minneapolis, Minn., and John O. Hanchett and J. L. Johnston, both of Harvey, for respondents.

GOSS, J.

The quarter section, the subject-matter of this suit, was the government homestead of Torger J. Hauge. It is the southwest quarter of 6, township 149, north of range 71 west, and within Wells county. Torger Hauge, made proof thereon in 1902. Britha Hauge, now his widow, is still living. Their children were the defendants other than the widow appellant, and also their youngest son, Andrew Torgerson. The plaintiffs are his children suing by guardian the mother and the brothers and sisters of their father, Andrew Torgerson. Both Andrew Torgerson and his father, Torger J. Hauge, are dead. The son died from tuberculosis June 5, 1914, after a lingering illness. His father, Torger J. Hauge, died in October following.

In 1899 Torger J. Hauge and his wife were living upon this tract as their unproven government homestead. Andrew Torgerson, their youngest son, unmarried, was residing upon a government homestead near Balfour. The other four children of Torger and wife had married and had left the parental roof. In 1889 the father and mother entered into an arrangement with Andrew that he should return to their home, reside with and care for them for the balance of their lives, and should receive therefor all their property, including their unproven homestead, upon the death of both of them. Andrew thereupon made commutation proof upon his homestead near Balfour, and sold it, realizing some $1,500 net from its sale. He immediately returned to the home of his parents, purchasing a quarter of school land adjoining, and making the first payments thereon to the state with a portion of the proceeds from the sale of his homestead. He took possession of all personalty on the father's homestead and cropped it, taking those also. The father, soon afterward, in 1902, made proof upon his homestead and patent therefor presumably has been issued. In 1899 the father's homestead was worth approximately $10 per acre. The buildings were of sod. Substantial frame buildings, consisting of a house worth $1,200 or $1,500, a large hip-roofed barn, worth from $1,000 to $1,200, and several other frame buildings, as granaries and the like, have been built upon the father's homestead by Andrew since his return. There is substantial proof that a portion of the proceeds from the son's homestead went into the frame house, the first building erected. The buildings and improvements, in the aggregate of the value of approximately $3,500 upon the father's homestead, were placed there by Andrew from part of the proceeds of the sale of his homestead, but in larger part from the crops he had raised upon the land in question and the school quarter. All the buildings and improvements were placed upon the father's homestead, instead of upon the school land quarter, and during all the years from 1899 until Andrew's death he had resided thereon.

Andrew married in 1907, and he and his family, together with his father and mother, have always lived there. During all this time the old people had been well and comfortably cared for by the son and his wife, and were apparently well satisfied during these 15 years with their condition and with the performance of the agreement under which they were maintained. For some years before the son's death in 1914 he had been ailing, but no complaint has been made that during that time and up to his death the old people were not properly cared for. In fact, the contrary is the proof. During all this time peace and harmony prevailed, and at various times the old people have referred to the understanding with Andrew, and declared that his wife and children in case of his death should not be dispossessed, but should perform the contract the same as Andrew did when living and receive the same benefits. They even consented to the giving of a deed for said purposes a few days before Andrew's death; but evidently for sentimental reasons, such as the consideration for the feeling of the son during his last illness, they did not trouble themselves or him to make the transfer.

This original understanding or contract does not rest entirely in parol. Soon after the return of Andrew in 1899, and evidently to carry out the agreement and place it and the good faith of the parties beyond question for all time, the father and mother had a will prepared, and which they executed and attested in the presence of witnesses and subsequently delivered to Andrew. In part, it reads:

“We do hereby jointly and severally give, devise and bequeath to our beloved son, Andrew Torgerson, all our estate whether held jointly or severally, of whatever name, title or description, real, personal or mixed. This will to become operative only upon the death of the survivor of us. We do hereby make, constitute and appoint Andrew Torgerson the forenamed, sole executor of this last will and testament without being required to give bonds for the discharge of his trust as such executor.”

The possession of this will has been retained at all times by Andrew, and since his death by his widow or the plaintiffs. Its execution and delivery is admitted and also is established by the uncontroverted proof. Each and all of the defendants knew of its provisions and the arrangement under which the son Andrew, and later his wife, had occupied the premises in question and cared for and maintained the old people. As above stated, the son died first, and at a time when the father was very feeble and in poor health and needed continuous personal attention and care. At Andrew's death his widow was six months pregnant, and physically unable to render all the care to the aged parents of Andrew that was necessary, and was assisted by her sister and other hired help, and several times a week by another son, a brother of Andrew.

Some six weeks after Andrew's death, evidently under prearrangement for the purpose, but without informing Andrew's widow thereof until it occurred, a meeting of the surviving brothers and sisters of Andrew, the defendants in this action, took place at the...