Weeke v. Wortmann

• Decision Date: 13 April 1909
• Docket Number: 15,639
• Citation: 120 N.W. 933,84 Neb. 217
• Parties: FREDERICK H. WEEKE ET AL., APPELLANTS, v. HENRY W. WORTMANN, ADMINISTRATOR, ET AL., APPELLEES
• Court: Nebraska Supreme Court

120 N.W. 933

84 Neb. 217

FREDERICK H. WEEKE ET AL., APPELLANTS, v. HENRY W. WORTMANN, ADMINISTRATOR, ET AL., APPELLEES

No. 15,639

Supreme Court of Nebraska

April 13, 1909

APPEAL from the district court for Thayer county: LESLIE G. HURD JUDGE. Reversed.

REVERSED.

Joseph P. Baldwin, O. A. Torgerson, Charles H. Sloan, Richards & Haffke and T. C. Marshall, for appellants.

R. D Sutherland and J. T. McCuistion, contra.

CALKINS C. DUFFIE, EPPERSON and GOOD, CC., concur.

OPINION

CALKINS, C.

The plaintiff Kathrina Weeke was first married to one Burstadt, and by him she had two children, the defendants Minnie Wortmann and Herman H. Burstadt. Burstadt died, and she then married one Stockam, by whom she had two children, the defendants Lottie Knorenschild and Henry H. Stockam. Stockam died when the latter child was an infant, and in about the year 1872 she married Henry W. Weeke, by whom she had one child, the plaintiff Frederick H. Weeke. She lived with Weeke for about 30 years, and until he died in Thayer county on the 6th day of January, 1902. It appears that her first husband left Mrs. Weeke a little personal property, and an interest in some land upon which he had paid $ 150 and to which she afterwards obtained the title. It does not appear that her second husband left her any property; but when she married Mr. Weeke she had this tract of land in Missouri which was afterwards sold for $ 600, and Mr. Weeke at that time had himself about $ 500 in money. They moved to Nebraska, where Weeke bought land and established his home. His stepchildren were raised in his family, the daughter until she was married, and the boys until they were 17 or 18 years old. Each seems to have been furnished a small amount of property with which to make a start in life. When the older Weeke died he left an estate valued at about $ 11,000. He owned a house and lot in the village of Deshler, in which he resided with his wife at the time of his death. The remainder of his estate was composed of personal property, principally in money, notes and securities.

After his death the plaintiffs and the defendants Wortmann, Burstadt and Stockam met at the residence of the widow and entered into the following agreement: "This agreement entered into this 11th day of January, 1902, between the heirs of Henry William Weeke, deceased, witnesseth: That the undersigned have agreed and do hereby covenant and agree with each other to settle the estate of Henry W. Weeke as follows: (1) All debts shall be paid. (2) The widow Kathrina E. Weeke shall receive all the household goods, $ 200 in cash, and one-third of the balance of the estate. (3) Out of the remainder of the estate Lottie Knorenschild shall receive $ 200, and Frederick H. Weeke shall receive $ 500. (4) The estate remaining after the widow shall have her portion, and the said sums have been paid Lottie Knorenschild and Frederick H. Weeke, shall be divided into five equal parts. Mrs. Minnie Wortmann shall receive one-fifth, Herman H. Burstadt shall receive one-fifth, Lottie Knorenschild shall receive one-fifth, Henry H. Stockam shall receive one-fifth, and Frederick H. Weeke shall receive one-fifth. In witness whereof we have hereunto set our hands at Deshler, Nebraska, the day and year first above written. Kathrina E. Weeke. Mrs. Minnie Wortmann. Herman H. Burstadt. Lottie Knorenschild. Henry H. Stockam. Frederick H. Weeke."

A few days later the following addendum was added to said agreement: "Deshler, Nebraska, January 15, 1902. We heirs all agree to give mother the old home place in Deshler with everything that is on the place that she may want. Lots seven (7), eight (8) and nine (9), in block thirteen (13) of the original town of Deshler according to official survey and recorded plot thereof. Kathrina E. Weeke. Mrs. Minnie Wortmann. Herman H. Burstadt. Lottie Knorenschild. Henry H. Stockam. Frederick H. Weeke."

Upon a petition signed by the plaintiffs, the defendant Henry W Wortmann was by the county court of Thayer county appointed administrator of the estate of Henry W. Weeke, and, having qualified, proceeded to execute said trust, and filed his final report in October, 1902. On the 18th day of November, 1902, the county court made an order of distribution according to the terms of the agreement above quoted, and the administrator, in pursuance thereof, made payment to the parties named therein of the amounts which it was so determined each should receive. On the 9th day of February, 1905, plaintiffs filed their petition in the county court, praying that the order allowing the administrator's final account, the order of distribution and that discharging the administrator be vacated and set aside. This petition, after setting out the death of the deceased, their relation to him, the making of the foregoing agreement, and the proceedings had in the county court, alleged that Frederick H. Weeke was mentally weak and easily deceived, and that the defendant Henry W. Wortmann, with intent to cheat and defraud him, presented to the plaintiff the foregoing agreement and falsely and fraudulently represented to him that his stepbrothers and sisters were heirs of the deceased and entitled to share in the estate, and that, unless the plaintiff would sign said agreement, the whole estate would be squandered and wasted in litigation, and that, if he would sign it, he would receive $ 500 more than he was entitled to, and that he, relying upon the said representations, signed the said agreement without any consideration. There were similar allegations excusing his signing of the receipt to the administrator for the share of the estate which he received, and a...